Nicaragua v. US

1986 I.C.J. 14, 1986 WL 522 (I.C.J.
) Page 1
1986 I.C.J. 14, 1986 WL 522 (I.C.J.)
CASE CONCERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST

NICARAGUA
(
Nicaragua
v. United States of America)
International Court of Justice
June 27, 1986
General List No. 70
70
Judgment of 27 June 1986
Separate Opinion:President Nagendra SinghJudge LachsJudge RudaJudge EliasJudge AgoJudge Sette-CamaraJudge Ni-
Dissenting Opinions:Judge OdaJudge SchwebelJudge Sir Robert Jennings
*14 MERITS
Failure of Respondent to appear – Statute of the Court, Article 53 – Equality of the parties.Jurisdiction of the Court – Ef-
fect of application of multilateral treaty reservation to United States declaration of acceptance of jurisdiction under Stat-
ute, Article 36, paragraph 2 – Third State ‘affected‘ by decision of the Court on dispute arising under a multilateral treaty
– Character of objection to jurisdiction not exclusively preliminary – Rules of Court, Article 79.Justiciability of the dis-
pute – ‘Legal dispute‘ (Statute, Article 36, paragraph 2).Establishment of facts – Relevant period – Powers of the Court –
Press information and matters of public knowledge – Statements by representatives of States – Evidence of witnesses –
Implicit admissions – Material not presented in accordance with Rules of Court.Acts imputable to respondent State –
Mining of ports – Attacks on oil installations and other objectives – Overflights – Support of armed bands opposed to
Government of applicant State – Encouragement of conduct contrary to principles of humanitarian law – Economic pres-
sure – Circumstances precluding international responsibility – Possible justification of imputed acts – Conduct of Applic-
ant during relevant period.Applicable law – Customary international law – Opinio juris and State practice – Significance
of concordant views of Parties – Relationship between customary international law and treaty law – United Nations
Charter –Significance of Resolutions of United Nations General Assembly and Organization of American States General
Assembly.*15 Principle prohibiting recourse to the threat or use of force in international relations – Inherent right of
self-defence – Conditions for exercise – Individual and collective self-defence – Response to armed attack –Declaration
of having been the object of armed attack and request for measures in the exercise of collective self-defence.Principle of
non-intervention – Content of the principle – Opinion juris –State practice – Question of collective counter-measures in
response to conduct not amounting to armed attack.State sovereignty – Territory – Airspace – Internal and territorial wa-
ters –Right of access of foreign vessels.Principles of humanitarian law – 1949 Geneva Conventions – Minimum rules ap-
plicable – Duty of States not to encourage disrespect for humanitarian law –Notification of existence and location of
mines.Respect for human rights – Right of States to choose political system, ideology and alliances.1956 Treaty of
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 2
Friendship, Commerce and Navigation – Jurisdiction of the Court – Obligation under customary international law not to
commit acts calculated to defeat object and purpose of a treaty – Review of relevant treaty provisions.Claim for repara-
tion.Peaceful settlement of disputes.
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,
between
the Republic of Nicaragua,
represented by
H.E. Mr. Carlos Arguello Gomez, Ambassador,
as Agent and Counsel,
Mr. Ian Brownlie, Q.C., F.B.A., Chichele Professor of Public International Law in the University of Oxford; Fellow of
All Souls College, Oxford,
Hon. Abram Chayes, Felix Frankfurter Professor of Law, Harvard Law School; Fellow, American Academy of Arts and
Sciences,
Mr. Alain Pellet, Professor at the University of Paris-Nord and the Institut d'etudes politiques de Paris,
*16 Mr. Paul S. Reichler, Reichler and Appelbaum, Washington, D.C.; Member of the Bar of the United States Supreme
Court; Member of the Bar of the District of Columbia,
as Counsel and Advocates,
Mr. Augusto Zamora Rodriguez, Legal Adviser to the Foreign Ministry of the Republic of Nicaragua,
Miss Judith C. Appelbaum, Reichler and Appelbaum, Washington, D.C.; Member of the Bars of the District of Columbia
and the State of California,
Mr. David Wippman, Reichler and Appelbaum, Washington, D.C.,
as Counsel,
and
the United States of America,
THE COURT,

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 3
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 Ap-
plication 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 pro-
visional 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 Applica-
tion. By an Order dated 14 May 1984, the President of the Court fixed 30 June 1984 as time-limit for the filing of a Me-
morial 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 *17 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 Au-
gust 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 ad-
missibility, 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 4
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 erro-
neous 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 applica-
tion 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 de-
cision 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 Re-
spondent to appear and defend.
*18 12. On 10 September 1985, immediately prior to the opening of the oral proceedings, the Agent of Nicaragua sub-
mitted to the Court a number of documents referred to as ‘Supplemental Annexes‘ to the Memorial of Nicaragua. In ap-
plication of Article 56 of the Rules of Court, these documents were treated as ‘new documents‘ and copies were transmit-
ted 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 rep-
resentatives of Nicaragua: H.E. Mr. Carlos Arguello Gomez, Hon. Abram Chayes, Mr. Paul S. Reichler, Mr. Ian Brown-
lie, 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. Pel-
let); 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 re-
cords 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 access-
ible 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:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 5
(a) That the United States, in recruiting, training, arming, equipping, financing, supplying and otherwise encour-
aging, 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:
*19 – 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, assist-
ance, direction or any other form of support – to any nation, group, organization, movement or individual en-
gaged 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 vi-
olations 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 *20 States has violated the obligations of interna-
tional 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 indic-
ated in this Memorial, compensation is due to Nicaragua, both on its own behalf and in respect of wrongs inflicted

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 6
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 indic-
ated 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 ac-
cordance with the principles of international law in respect of the violations of international law generally, in a sub-
sequent 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 Gov-
ernment 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 op-
position 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 *21 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 provi-
sion of arms, for guerrillas in El Salvador. There was however no interruption in diplomatic relations, which have contin-
ued to be maintained up to the present time. In September 1981, according to testimony called by Nicaragua, it was de-
cided to plan and undertake activities directed against Nicaragua.
20. The armed opposition to the new Government in Nicaragua, which originally comprised various movements, sub-
sequently became organized into two main groups: the Fuerza Democratica Nicaraguense (FDN) and the Alianza Re-
volucionaria 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‘ opera-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 7
tions 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 consid-
erable material damage and widespread loss of life, and have also committed such acts as killing of prisoners, indiscrim-
inate 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 *22 Government, and un-
der the direct command of United States personnel, who also participated to some extent in the operations. These opera-
tions 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 re-
duced 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 cus-
tomary 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 ad-
missibility 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 ad-
missibility of 26 November 1984, I.C.J. Reports 1984, p. 432, para. 91), and on a number of other occasions. The sub-
ject-matter of the dispute also forms part of wider issues affecting Central America at present being dealt with on a re-
gional basis in the *23 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).

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 8
***
26. The position taken up by the Government of the United States of America in the present proceedings, since the deliv-
ery 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 de-
fend 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. Re-
ports 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 par-
ticipated fully in the proceedings on the request for provisional measures, and the proceedings on jurisdiction and ad-
missibility. Having taken part in the proceedings to argue that the Court lacked jurisdiction, the United States thereby ac-
knowledged that the Court had the power to make a finding on its own jurisdiction to rule upon the merits. It is not pos-
sible 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 judg-
ment by one party. The fact that a State purports to ‘reserve its rights‘ *24 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 judg-
ment 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 accord-
ance 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 con-
sequences 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 9
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‘) im-
plies 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 there-
fore 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 *25 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 oppor-
tunity 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 in-
cumbent 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 *26 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 per-
mitted to profit from its absence, since this would amount to placing the party appearing at a disadvantage. The provi-
sions 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 conten-
tions. The treatment to be given by the Court to communications or material emanating from the absent party must be de-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 10
termined 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 jurisdic-
tion and admissibility the United States advanced a number of arguments why the claim should be treated as inadmiss-
ible: 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 Coun-
cil; 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 nonjusti-
ciable.
33. In the first place, it has been suggested that the present dispute should be declared non-justiciable, 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 *27 settled by the de-
cision 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 juris-
diction 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 Art-
icle 36, paragraph 2, without ever advancing the more radical argument that the whole declaration was inapplicable be-
cause 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 dis-
pute 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 Novem-
ber 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 11
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 ne-
cessity, 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 *28 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 re-
solve 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 in-
volve 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 compet-
ence, 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 Art-
icle XXIV, paragraph 2, of the Treaty to determine ‘any dispute between the Parties as to the interpretation or applica-
tion‘ 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 jur-
isdiction to produce its effects in respect of the claim advanced in the Application. Once this condition has been sat-
isfied, the Court must deal with the claim; it has jurisdiction to deal with all its aspects, whether they relate to juris-
diction, to admissibility or to the merits. An extrinsic fact such as the subsequent *29 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:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 12
‘That being so, and since the procedural technique formerly available of joinder of preliminary objections to the mer-
its 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 aragraph 7, of the present Rules of Court,
and declare tht the objection based on the multilateral treaty reservation of the United States Declaration of Accept-
ance 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 Applic-
ation of 9 April 1984.‘ (I.C.J. Reports 1984, pp. 425-426, para. 76.)
38. The present case is the first in which the Court has had occasion to exercise the power first provided for in the 1972
Rules of Court to declare that a preliminary objection ‘does not possess, in the circumstances of the case, an exclusively
preliminary character‘. It may therefore be appropriate to take this opportunity to comment briefly on the rationale of this
provision of the Rules, in the light of the problems to which the handling of preliminary objections has given rise. In ex-
ercising its rule-making power under Article 30 of the Statute, and generally in approaching the complex issues which
may be raised by the determination of appropriate procedures for the settlement of disputes, the Court has kept in view
an approach defined by the Permanent Court of International Justice. That Court found that it was at liberty to adopt
‘the principle which it considers best calculated to ensure the administration of justice, most suited to procedure
before an international tribunal and most in conformity with the fundamental principles of international law‘
(Mavrommatis Palestine Concessions, P.C.I.J., Series A, No. 2, p. 16).
39. Under the Rules of Court dating back to 1936 (which on this point reflected still earlier practice), the Court had the
power to join an objection to the merits ‘whenever the interests of the good administration of justice require it‘
(Panevezys-Saldutiskis Railway, P.C.I.J., Series A/B, No. 75, *30 p. 56), and in particular where the Court, if it were to
decide on the objection, ‘would run the risk of adjudicating on questions which appertain to the merits of the case or of
prejudging their solution‘ (ibid.). If this power was exercised, there was always a risk, namely that the Court would ulti-
mately decide the case on the preliminary objection, after requiring the parties fully to plead the merits, – and this did in
fact occur (Barcelona Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports 1970, p. 3). The result
was regarded in some quarters as an unnecessary prolongation of an expensive and time-consuming procedure.
40. Taking into account the wide range of issues which might be presented as preliminary objections, the question which
the Court faced was whether to revise the Rules so as to exclude for the future the possibility of joinder to the merits, so
that every objection would have to be resolved at the preliminary stage, or to seek a solution which would be more flex-
ible. The solution of considering all preliminary objections immediately and rejecting all possibility of a joinder to the
merits had many advocates and presented many advantages. In the Panevezys-Saldutiskis Railway case, the Permanent
Court defined a preliminary objection as one
‘submitted for the purpose of excluding an examination by the Court of the merits of the case, and being one
upon which the Court can give a decision without in any way adjudicating upon the merits‘ (P.C.I.J., Series A/B,
No. 76, p. 22).
If this view is accepted then of course every preliminary objection should be dealt with immediately without touching the
merits, or involving parties in argument of the merits of the case. To find out, for instance, whether there is a dispute
between the parties or whether the Court has jurisdiction, does not normally require an analysis of the merits of the case.
However that does not solve all questions of preliminary objections, which may, as experience has shown, be to some ex-
tent bound up with the merits. The final solution adopted in 1972, and maintained in the 1978 Rules, concerning prelim-
inary objections is the following: the Court is to give its decision
‘by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the cir-
cumstances of the case, an exclusively preliminary character. If the Court rejects the objection, or declares that it
does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings.‘ (Art.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 13
79, para. 7.)
41. While the variety of issues raised by preliminary objections cannot possibly be foreseen, practice has shown that
there are certain kinds of preliminary objections which can be disposed of by the Court at an early stage without examin-
ation of the merits. Above all, it is clear that a question of jurisdiction is one which requires decision at the preliminary
*31 stage of the proceedings. The new rule enumerates the objections contemplated as follows:
‘Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other
objection the decision upon which is requested before any further proceedings on the merits . . .‘ (Art. 79, para. 1.)
It thus presents one clear advantage: that it qualifies certain objections as preliminary, making it quite clear that when
they are exclusively of that character they will have to be decided upon immediately, but if they are not, especially when
the character of the objections is not exclusively preliminary because they contain both preliminary aspects and other as-
pects relating to the merits, they will have to be dealt with at the stage of the merits. This approach also tends to discour-
age the unnecessary prolongation of proceedings at the jurisdictional stage.
**
42. The Court must thus now rule upon the consequences of the United States multilateral treaty reservation for the de-
cision 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, al-
though 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 re-
servation 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 *32 that the term ‘affected‘ applied not to multilateral treaties, but to the parties to such treat-
ies. 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 ques-
tion 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 14
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 de-
clarations 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 there-
fore 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 de-
cision 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 ob-
jection was well-founded, either at the jurisdictional stage, because it did not possess an exclusively preliminary charac-
ter, 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 *33 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 reserva-
tion, 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 prop-
er 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 at-
tributed 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 exer-
cise ‘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
*34 States Charters was to convince the Court that the present dispute is one ‘arising under‘ those treaties, and hence one

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 15
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 multilater-
al treaty law to resolve the dispute, when what the United States was arguing was that, for the very reason that the dis-
pute ‘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 ascer-
tain 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 multi-
lateral 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 de-
voted 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 con-
ventions 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 re-
garded 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. Ac-
cording 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 Sal-
vador, 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 *35 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 re-
sponse to an armed attack by Nicaragua on El Salvador. Furthermore, reserving for the present the question of the con-
tent 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 16
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 Na-
tions Charter so as to constitute the exercise*36 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 fol-
lows 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 Sal-
vador, 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 de-
cision 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 *37 ‘ 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 17
‘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 de-
cision 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 ex-
ample, 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 *38 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 Organiza-
tion 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 18
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 imputabil-
ity of the facts, but also to *39 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 responsibil-
ity, 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, be-
ginning 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 de-
cision, 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 com-
ments 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 sug-
gest any profound modification of the situation of which the Court is seised, but rather its intensification in certain re-
spects, 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, provi-
sions devised to guarantee the sound administration of justice, while respecting the equality of the parties. The presenta-
tion of evidence is governed by specific rules relating to, for instance, the observance of time-limits, the communication
of *40 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 evid-
ence; when the situation is complicated by the non-appearance of one of them, then a fortiori the Court regards it as es-
sential to guarantee as perfect equality as possible between the parties. Article 53 of the Statute therefore obliges the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 19
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 administra-
tion 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, com-
mission 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 ex-
tracts 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 *41 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 par-
ticular 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 organiza-
tion, and appear in the official records of those bodies. Others, made during press conferences or interviews, were repor-
ted 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 ac-
knowledge facts or conduct unfavourable to the State represented by the person who made them. They may then be con-
strued as a form of admission.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 20
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 element-
ary 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 of-
ficial 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. Further-
more, the Court has inevitably had sometimes to interpret the statements, to ascertain precisely to what degree they con-
stituted 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 fur-
ther witness was offered in *42 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 ad-
missibility. 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 pro-
ceedings 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 disad-
vantage 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. *43 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 Gov-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 21
ernment, 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 state-
ment 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 ap-
proach 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 conten-
tions 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 ap-
proach 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 de-
cisions (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.
*44 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 or-
al argument submitted to it by the United States before it withdrew from participation in the proceedings, and to the De-
claration 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 rep-
resentatives of the Parties (or of other States) in international organizations, as well as the resolutions adopted or dis-
cussed 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 Depart-
ment 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 22
(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 representat-
ives of Nicaragua before the Court during the hearings were aware of the existence of this publication, since it was re-
ferred 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 ad-
mission 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 *45 collective self-defence constitutes a major admission of direct and sub-
stantial 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 im-
plicit 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 sub-
mission 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.) Fur-
thermore, 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 *46 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.
**

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 23
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 posi-
tion 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 Carri-
on 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 re-
port, nobody paid much attention to this announcement. It does not appear that the United States Government itself is-
sued any *47 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 ap-
proval 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, dir-
ecting, 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 separ-
ately; 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 evid-
ence 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 Govern-
ment indicated to the United States that it deeply deplored the mining, as a matter of principle. Nicaragua has also sub-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 24
mitted 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.
*48 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 logist-
ic 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 popula-
tion;
(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 heli-
copters;
(ix) 28/30 March 1984: clashes occurred at Puerto Sandino between speedboats, in the course of minelaying op-
erations, 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 sup-
port for an ARDE attack on San Juan del Norte.
*49 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 Com-
mander 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 25
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, *50 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 pub-
lished 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 responsib-
ility. It is not however clear what the source of Mr. Chamorro's information was; since there is no suggestion that he par-
ticipated 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 pat-
tern 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 dir-
ect 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 *51 of the ‘UCLAs‘, while United States nationals participated in the plan-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 26
ning, direction and support. The imputability to the United States of these attacks appears therefore to the Court to be es-
tablished.
**
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 alti-
tude for intelligence reconnaissance purposes, or aircraft for supply purposes to the contras in the field, and aircraft pro-
ducing ‘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 bor-
der, 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 Govern-
ment 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 regard-
ing 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 Govern-
ment‘,
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, em-
phasis added.)
*52 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 Nicara-
guan Defence Ministry officials, reported in the United States press; the Court is not however aware of any specific deni-
al 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 Octo-
ber 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 al-
legation 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 reconnais-
sance purposes. According to Commander Carrion, these planes were supplied after late 1982, and prior to the contras re-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 27
ceiving 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 admit-
ting 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 caus-
ing ‘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 *53 may have incurred in this latter respect, the only violations of Nicaraguan airspace which the Court finds im-
putable 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 wa-
ters 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 re-
ports; 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 *54 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 exmembers 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.‘

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 28
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, es-
tablished outside Nicaragua, from the end of 1979 onward, and in August 1981 this grouping merged with an armed op-
position force called the 15th of September Legion, which had itself incorporated the previously disparate armed opposi-
tion 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 ori-
ginal 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 in-
volved 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 cit-
ing 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 *55 assistance‘ was cut off in September 1984, the size of the force was re-
ported 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 or-
gans 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 activit-
ies. 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 budget-
ary arrangements for funding subsequent operations up to the end of 1983 have not been made clear, though a press re-
port 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 Repres-
entatives 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 para-
military 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 ulti-
mately a compromise was reached. In November 1983, legislation was adopted, coming into force on 8 December 1983,
containing the following provision:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 29
‘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 *56 which would have the effect of supporting, directly or indirectly, milit-
ary 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 se-
curity 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 activ-
ities 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 op-
erations 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 jus-
tifying such an appropriation, and both Chambers of Congress voted affirmatively to approve it. Such a report was sub-
mitted 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 Govern-
ment 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;
*57 – 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 ap-
propriation, 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 appro-
priation 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 30
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
*58 ‘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 as-
sistance other than that authorized . . . for humanitarian assistance for the Nicaraguan democratic resistance, un-
less 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 assist-
ance‘ 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 sub-
sequently 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:
*59 ‘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 Na-
tional Guardsmen in exile were offered regular salaries from the CIA, and that from then on arms (FAL and AK-47 as-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 31
sault 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 commu-
nications, 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, ma-
chine guns, mortars, grenade launchers, and explosives, such as Claymore mines . . . also . . . in field communic-
ations, 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 be-
ing supplied by the CIA; from press reports it appears that those were comparatively small aircraft suitable for reconnais-
sance and a certain amount of supply-dropping, not for offensive *60 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 re-
maining 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 sup-
port 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 de-
termined 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 offi-
cials indicating participation of CIA advisers in planning and the discussion of strategy or tactics, confirmed by the affi-
davit 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. Ch morro (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 *61 for Nicaragua, on the impact

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 32
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 ad-
ministration 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 con-
tras 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 net-
works, 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 *62 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 opera-
tions 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 con-
trario, the potential for control inherent in the degree of the contras' dependence on aid. Yet despite the heavy subsides

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 33
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, ac-
cording 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 de-
pendent. 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 depend-
ence. 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 *63 legal purposes with the forces of the United States. This conclu-
sion, 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 guar-
antee 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 *64 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 34
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 adop-
ted 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 com-
mand. 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 decis-
ive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramil-
itary 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 con-
trary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by mem-
bers of the contras without the control of the United *65 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 re-
sponsible 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.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 35
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 op-
pression 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 *66 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 Intel-
ligence 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 gov-
ernment, 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 Viol-
ence 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 con-
frontation 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 re-
gime, in order to create greater conflicts.‘
*67 119. 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 prin-
ted (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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 36
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 psycholo-
gical warfare for middle-level commanders. In his affidavit, Mr. Chamorro reports that the attitude of some unit com-
manders, in contrast to that recommended in the manual, was that ‘the best way to win the loyalty of the civilian popula-
tion 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 offi-
cials 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 en-
gage in, assassination.
2.12. No agency of the Intelligence Community shall participate in or request any person to undertake activities for-
bidden 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 In-
telligence 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 Commit-
tee believes that the manual was written, edited, distributed and used without adequate supervision. No one but its
author paid much attention *68 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 author-
ity and responsibility for the manual. The incident of the manual illustrates once again to a majority of the Commit-
tee 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 re-
port, ‘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 pre-
pared, those responsible were aware of, at the least, allegations of behaviour by the contras inconsistent with humanitari-
an law.
122. The Court concludes that in 1983 an agency of the United States Government supplied to the FDN a manual on psy-
chological guerrilla warfare which, while expressly discouraging indiscriminate violence against civilians, considered the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 37
possible necessity of shooting civilians who were attempting to leave a town; and advised the ‘neutralization‘ for propa-
ganda purposes of local judges, officials or notables after the semblance*69 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 Govern-
ment 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 ter-
rorism 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 previ-
ously contracted, and its economic impact was more than $36 million per annum. Nicaragua also claims that, at the mul-
tilateral level, the United States has *70 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 secur-
ity 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 transporta-
tion 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 as-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 38
sertion 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 *71 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 Sal-
vador, 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 suf-
ficient 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 af-
fidavit 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 pro-
curement, 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 Re-
public 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*72 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 39
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 bor-
der 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 re-
lation 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 dir-
ected 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 sup-
plying 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 justific-
ation 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 con-
sider whether Nicaragua's conduct in relation to Honduras or Costa *73 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 Inter-
vention 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 at-
tack’. 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 40
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-*74 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 *75 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 read-
ing 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.‘

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 41
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 avail-
able 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 prob-
lems‘ (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.‘
*76 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 Direct-
orate 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 left-
ist 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 sup-
port the following judgments with certainty:
A major portion of the arms and other material sent by Cuba and other communist countries to the Salvadorian insur-
gents 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 in-
surgents.‘
The Court is not aware of the contents of any analogous report of a body with access to United States intelligence materi-
al covering a more recent *77 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 milit-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 42
ary 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 Nicara-
guan 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 con-
tinuing 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 specif-
ic 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 Applica-
tion. 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.)
*78 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 Interfer-
ence 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 refer-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 43
ences 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 in-
terviews 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 evid-
ence 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 *79 involved in the arms
supply. As the Court has already explained, it regards press reports not as evidence capable of proving facts, but con-
siders 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.‘ (‘Hemos dicho que estamos dispues-
tos a sacar a los cubanos, sovieticos y demas asesores; a suspender todo transito por nuestro territorio de ayuda milit-
ar u otra a los salvadorenos, bajo verificacion internacional. Hemos dicho que lo unico que pedimos es que no nos
agredan y que Estados Unidos no arme y financie . . . a las bandas que entran a matarnos, a quemar las cosechas, y
que nos obligan a distraer enormes recursos humanos y economicos que nos hacen una falta angustiosa para el desar-
rollo.‘)
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 Nicara-
guan 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 dur-
ing 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 Or-
tega 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 *80 was in fact doing what it had already offi-
cially 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 44
in El Salvador; the Court has no such direct testimony before it. The only material available in this respect is press re-
ports, some of which were annexed to the United States Counter-Memorial on the questions of jurisdiction and admissib-
ility. With appropriate reservations, the Court has to consider what the weight is of such material, which includes allega-
tions 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 con-
tinuing 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 Me-
morial 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, am-
munition, 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:
*81 ‘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 un-
derdeveloped 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 Sal-
vador 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 com-
munity 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 45
(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 *82 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 Sal-
vador; 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 pre-
sumption of aid being given by Nicaragua to the armed opposition in El Salvador, do at least require to be examined me-
ticulously 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 au-
thorities 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 *83 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 sig-
nificant scale, must inevitably have been discovered, in view of the magnitude of the resources used for that purpose. The

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 46
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 af-
firmed the existence of ‘land infiltration routes between Nicaragua and El Salvador‘. Had evidence of this become avail-
able, 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 fol-
lowing 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 *84 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 coun-
try. Indeed, the applicant State has in no way sought to conceal the possibility of weapons en route to the armed opposi-
tion 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 ne-
cessarily 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 im-
portant 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 recog-
nizes 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 be-
cause 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 deliver-
ies. 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 47
hand, this evidence does not exist, that, as the Court has pointed out, implies that the arms traffic is so insignificant and
*85 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 con-
clusions mutually support each other.
157. This second hypothesis would provide the Court with a further reason for taking Nicaragua's affirmation into con-
sideration, 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 Sal-
vador, 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 geo-
graphical obstacles, and the intrinsic character of any clandestine arms traffic, simply show that this traffic may be car-
ried 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 pre-
vent 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 char-
acterizing this part of Central America, the Court considers it more realistic, and consistent with the probabilities, to re-
cognize that an activity of that nature, if on a limited scale, may very well be pursued unbeknown to the territorial gov-
ernment.
159. It may be objected that the Nicaraguan authorities are alleged to have declared on various occasions that military as-
sistance 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 dip-
lomatic talks held on 12 August 1981 at Managua, Commander Ortega *86 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 ad-
mission 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 re-
gime 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 48
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 Hon-
duras 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 request-
ing the sending of a mission of observers. Again, the Court has no information as *87 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 alleg-
ation that such aggression affords a basis for the exercise by the United States of the right of collective self-defence re-
mains on the record; and the Court has to note that Nicaragua has not taken the opportunity during the proceedings of ex-
pressly 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 accus-
ation of support for the armed opposition in El Salvador, did not refer at all to the allegation of border incidents in-
volving 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 Gov-
ernment of Nicaragua. The Court is also aware of the fact that the FDN operates along the Nicaraguan border with Hon-
duras, 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 jurisdic-
tion 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.‘

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 49
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, *88 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 Au-
gust 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*89 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 govern-
ment 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 prin-
cipal 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 govern-
ment that guarantees peace, freedom, and justice.‘

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 50
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 Na-
tions 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 na-
tional 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 authorit-
ies‘.
*90 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 politic-
al 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 Recon-
struction;
(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 -
*91 (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;

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 51
(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 execut-
ive power;
(iv) has committed atrocities against its citizens as documented in reports by the Inter-American Commission on Hu-
man 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 ma-
jority of Nicaraguans‘
and adds that
‘the United States, given its role in the installation of the current Government of Nicaragua, has a special re-
sponsibility 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
*92 ‘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 for-
eign policy of the United States.
171. The question whether the alleged violations by the Nicaraguan Government of the 1979 Resolution of the Organiza-
tion 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 determ-
ination of the law actually to be applied to this dispute is to ascertain the consequences of the exclusion of the applicabil-
ity of the multilateral treaties for the definition of the content of the customary international law which remains applic-
able.
173. According to the United States, these consequences are extremely wide-ranging. The United States has argued that:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 52
‘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 *93 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 be-
cause 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 in-
corporated.‘ (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 re-
marks. 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 custom-
ary 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 *94 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 53
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 exer-
cise 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 demon-
strates that in the field in question, the importance of which for the present dispute need hardly be stressed, customary in-
ternational 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 *95 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 ex-
isted as a customary rule, either because the treaty had merely codified the custom, or caused it to ‘crystallize‘, or be-
cause it had influenced its subsequent adoption. The Court found that this identity of content in treaty law and in custom-
ary 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 ap-
plicability. 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 cus-
tomary 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 separ-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 54
ate treatment as regards the organs competent to verify their implementation, depending on whether they are *96 custom-
ary 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 interna-
tional treaty law, even where the two categories of law have an identical content. Consequently, in ascertaining the con-
tent 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 jurisdic-
tion and admissibility, in support of its contention that the multilateral treaty reservation debars the Court from consider-
ing 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 de-
cide 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 judg-
ment of the Court as to the rights and obligations of the parties under customary law, disregarding the content of the mul-
tilateral 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 relev-
ant rules of customary international law with the provisions of the Charter. The Court has not accepted this extreme con-
tention, 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 sub-
sequent four decades developed under the influence of the Charter, *97 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 cus-
tomary 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 sus-
ceptible of compliance or execution.
182. The Court concludes that it should exercise the jurisdiction conferred upon it by the United States declaration of ac-
ceptance under Article 36, paragraph 2, of the Statute, to determine the claims of Nicaragua based upon customary inter-
national law notwithstanding the exclusion from its jurisdiction of disputes ‘arising under‘ the United Nations and Or-
ganization of American States Charters.
***
183. In view of this conclusion, the Court has next to consider what are the rules of customary international law applic-
able to the present dispute. For this purpose, it has to direct its attention to the practice and opinio juris of States; as the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 55
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 re-
cording 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 Americ-
an 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, *98 international custom ‘as evidence of a general practice accep-
ted as law‘, the Court may not disregard the essential role played by general practice. Where two States agree to incor-
porate 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 commit-
ments 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 correspond-
ing 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 in-
stances 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 inter-
national 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 56
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 indistin-
guishable from the multilateral treaty law which it may not apply. In its Counter-Memorial on jurisdiction and *99 ad-
missibility 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 embodi-
ment 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 in-
consistent 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 *100 from, inter alia, the attitude of the Parties and the attitude of States towards certain General As-
sembly resolutions, and particularly resolution 2625 (XXV) entitled ‘Declaration on Principles of International Law con-
cerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations‘. The ef-
fect 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 se-
curity, 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 signifcant is United States acceptance of the principle of the prohibition of the use of force which is con-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 57
tained in the declaration on principles governing the mutual relations of States participating in the Conference on Secur-
ity 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 fre-
quently 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 Year-
book, 1966-II, p. 247). Nicaragua in its *101 Memorial on the Merits submitted in the present case states that the prin-
ciple 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 admissibil-
ity, 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 Prin-
ciples 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. Along-
side 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 ter-
rorist 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.‘
*102 192. 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 direc-
ted 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 58
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 fol-
lows:
‘The General Assembly Resolves:
1. To reiterate solemnly the need for the member states of the Organization to observe strictly the principles of non-
intervention and self-determination of peoples as a means of ensuring peaceful coexistence among them and to re-
frain 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 meas-
ures 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 it-
self 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 *103 Principles of International Law concerning Friendly Relations and Co-operation among States in ac-
cordance with the Charter of the United Nations, the reference to the prohibition of force is followed by a paragraph stat-
ing 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 vic-
tim 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 59
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 *104 Court does not believe that the concept of ‘armed attack‘ in-
cludes 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 vic-
tim 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 assess-
ment 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 *105 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 re-
quest 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‘.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 60
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 de-
clared 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 re-
quires that measures taken by States in exercise of this right of self-defence must be ‘immediately reported‘ to the Secur-
ity 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 fol-
lowed. 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 con-
ditions 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.
*106 201. 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 con-
stitute 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 re-
quires 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 61
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:
*107 ‘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 confer-
ences in which the United States and Nicaragua have participated, e.g., General Assembly resolution 2131 (XX), the De-
claration 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, Twenti-
eth 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 Gov-
ernments 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 accep-
ted 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 parti-
cipating States, it can be inferred that the text testifies to the existence, and the acceptance by the United States, of a cus-
tomary principle which has universal application.
205. Notwithstanding the multiplicity of declarations by States accepting the principle of non-intervention, there remain
two questions: first, *108 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 con-
tent of the principle of non-intervention – the Court will define only those aspects of the principle which appear to be rel-
evant 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 62
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 con-
cerned 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 illus-
trative 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 funda-
mental 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 *109 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 leg-
al views which they do not themselves advance. The significance for the Court of cases of State conduct prima facie in-
consistent 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 to-
wards 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 *110 directly or indirectly involve the use of force, constitute a breach of the prin-
ciple of non-use of force in international relations.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 63
**
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 inter-
vention in its internal affairs? A right to act in this way in the case of intervention would be analogous to the right of col-
lective self-defence in the case of an armed attack, but both the act which gives rise to the reaction, and that reaction it-
self, 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 con-
stitute 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 *111 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 dis-
charge 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 su-
perjacent 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.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 64
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 anoth-
er 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 inno-
cent 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 inter-
national 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 neces-
sary for *112 maritime navigation. It may therefore be said that, if this right of access to the port is hindered by the lay-
ing 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 un-
lawful 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 ex-
acting 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 dis-
pute. Clearly, use of force may in some circumstances raise questions of such law. Nicaragua has in the present proceed-
ings 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 *113 would appear to be breaches of the pro-
visions 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 65
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 Conven-
tions, 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 *114 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 interna-
tional conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called ‘elementary con-
siderations of humanity‘ (Corfu Channel, Merits, I.C.J. Reports 1949, p. 22; paragraph 215 above). The Court may there-
fore 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 un-
der the legal rules relating to in ernational 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 humanitari-
an law to which the Conventions merely give specific expression. The United States is thus under an obligation not to en-
courage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 66
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 Contract-
ing 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 Ap-
plication 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 judg-
ment. 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;
*116 (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 es-
enciales y seguridad‘.
222. This article cannot be interpreted as removing the present dispute as to the scope of the Treaty from the Court's jur-
isdiction. 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 inter-
pretation 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 ex-
ceptions to the normal implementation of the General Agreement, stipulates that the Agreement is not to be construed to

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 67
prevent any contracting party from taking any action which it ‘considers necessary for the protection of its essential se-
curity 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 perform-
ance 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 Re-
ciprocal Assistance (Rio de Janeiro, 1947). The Court does not *117 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 ap-
plicability 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 re-
lating ... 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 se-
curity 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 pro-
tect 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 ap-
praisal of the conduct of the United States in the light of these relevant provisions of the Treaty pertains to the applica-
tion 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 in-
ternational law which appear to it to be in issue as a result of these facts, and the applicable treaty-law, has now to ap-
praise the facts in relation to the legal rules applicable. In so far as acts of the Respondent may appear to constitute viola-
tions of the relevant rules of law, the Court will then have to determine *118 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 68
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 Govern-
ment 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 re-
course 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 in-
ternational 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 *119 assistance to the contras in Nicaragua, by ‘organizing or encouraging the organiza-
tion 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 re-
ferred to ‘involve a threat or use of force‘. In the view of the Court, while the arming and training of the contras can cer-
tainly be said to involve the threat or use of force against Nicaragua, this is not necessarily so in respect of all the assist-
ance given by the United States Government. In particular, the Court considers that the mere supply of funds to the con-
tras, 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 justi-
fied 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 inter-
national law, it would have to be equated with an armed attack by Nicaragua on El Salvador. As stated above, the Court

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 69
is unable to consider that, in customary international law, the provision of arms to the opposition in another State consti-
tutes an armed attack on that State. Even at a time when the arms flow was at its peak, and again assuming the participa-
tion 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*120 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 pur-
poses 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 in-
ternal affairs‘ (S/PV.2528, p. 58), refrained from stating that El Salvador had been subjected to armed *121 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 com-
plaint 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 under-
standing 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 70
already been noted (paragraph 231 above), Honduras in the Security Council in 1984 asserted that Nicaragua had en-
gaged in aggression against it, but did not mention that a request had consequently been made to the United States for as-
sistance by way of collective selfdefence. On the contrary, the representative of Honduras emphasized that the matter be-
fore 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 col-
lective 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 indicat-
ive 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 add essed 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 be-
lieves 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 re-
porting 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 in-
ternational 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 *122 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 declara-
tion 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 cri-
teria 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 propor-
tionality, 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 Sal-
vador. 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 ac-
tions 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 para-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 71
graphs 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 Salvadori-
an 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 *123 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 Sal-
vador, 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 ac-
ceptable to the United States; and
(b) The substantial damaging of the economy, and the weakening of the political system, in order to coerce the gov-
ernment 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, consti-
tute 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 *124 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 sup-
port 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 72
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 interna-
tional 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 af-
fairs 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 milit-
ary 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 ofnon-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 as-
sistance‘ (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 *125 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, en-
deavours – 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 under-
standing, 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 provi-
sion 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 intelli-
gence 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 in-
ternal 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 interven-
tion in its internal *126 affairs inasmuch as it has taken, to Nicaragua's disadvantage, certain action of an economic

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 73
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 com-
plained 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-in-
tervention.
**
246. Having concluded that the activities of the United States in relation to the activities of the contras in Nicaragua con-
stitute 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 assist-
ance made by an opposition group in another State –supposing such a request to have actually been made by an opposi-
tion 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 situ-
ation 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 oth-
er 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 *127 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 Cent-
ral 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 justi-
fication 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 applic-
able law does not warrant such a justification.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 74
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 can-
not, as the Court has already observed (paragraph 211 above), produce any entitlement to take collective counter-meas-
ures 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).)
*128 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 sover-eignty 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 sover-eignty is also directly
infringed by the unauthorized overflight of a State's territory by aircraft belonging to or under the control of the govern-
ment 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 ne-
cessary 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 internation-
al 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 75
of another State, if that right of access is hindered by *129 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 proceed-
ings between Nicaragua and the United States, that the laying of mines in or near Nicaraguan ports constituted an in-
fringement, 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 interna-
tional 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 hu-
manitarian 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 pub-
lication 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 par-
ticular 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 encour-
agement 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 cir-
cumstances 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 opera-
tions to ‘neutralize‘ certain ‘carefully selected and planned targets‘, including judges, police officers, State Security offi-
cials, etc., after the local population have been gathered *130 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 regu-
larly 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 circum-
stances 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 beha-
viour 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 contain-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 76
ing 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 sug-
gestion 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 *131 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 ex-
clusive 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 sover-eignty in this
field. This is a conceivable situation for a State which is bound by institutional links to a confederation of States, or in-
deed to an international organization. Both Nicaragua and the United States are members of the Organization of Americ-
an States. The Charter of that Organization however goes no further in the direction of an agreed limitation on sover-
eignty 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 organiza-
tion 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 Organ-
ization, 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 appre-
hensions as desired and expressed its intention of governing the country democratically.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 77
*132 261. However, the Court is unable to find anything in these documents, whether the resolution or the communica-
tion 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 them-
selves 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 Nicara-
guan Junta of National Reconstruction planned the holding of free elections as part of its political programme of govern-
ment, 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 unilat-
eral or synallagmatic, whereby Nicaragua has committed itself in respect of the principle or methods of holding elec-
tions. The Organization of American States Charter has already been mentioned, with its respect for the political inde-
pendence 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 *133 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 interna-
tional 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 Con-
gress 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 78
‘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 inter-
national law to prevent a State from choosing and conducting a foreign policy in co-ordination with that of another State.
*134 266. 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 clas-
sic 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 accusa-
tions 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 in-
tervention‘, the definition of which would be discretionary. As stated above (paragraph 29), the Court is not solely de-
pendent for its decision on the argument of the Parties before it with respect to the applicable law: it is required to con-
sider 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 hu-
man rights. This particular point requires to be studied independently of the question of the existence of a ‘legal commit-
ment‘ by Nicaragua towards the Organization of American States to respect these rights; the absence of such a commit-
ment would not mean that Nicaragua could with impunity violate human rights. However, where human rights are pro-
tected by international conventions, that protection takes the form of such arrangements for monitoring or ensuring re-
spect 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 observ-
ance. 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 Hu-
man Rights in fact took action and compiled two reports (OEA/Ser.L/V/11.53 and 62) following visits by the Commis-
sion 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 min-
ing of *135 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 justi-
fication for the conduct of the United States, and cannot in any event be reconciled with the legal strategy of the respond-
ent State, which is based on the right of collective self-defence.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 79
269. The Court now turns to another factor which bears both upon domestic policy and foreign policy. This is the militar-
ization 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 appar-
ently 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 *136 case. It should however be emphasized that the Court does not con-
sider 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 enu-
merated 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 de-
fence 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 com-
plained 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.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 80
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 condemna-
tion 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 *137 toward the other party which could be clas-
sified 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 gen-
eral 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 regard-
ing, 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 satis-
factorily 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 com-
promissory clause in that treaty‘ (I.C.J. Reports 1984, p. 428).
*138 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 Art-
icle 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 ob-
ject 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 bi-
lateral 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 81
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 cal-
culated 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 ap-
preciation 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*139 treatment‘ to the nationals of the other. Nicaragua suggests that whatever meaning giv-
en 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 author-
ities 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 milit-
ary 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 ac-
tion 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.‘

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 82
It is clear that considerable economic loss and damage has been inflicted *140 on Nicaragua by the actions of the con-
tras: 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 col-
lect 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 ques-
tion 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 ob-
ject 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, *141 the United States relied on paragraph 1 (c) as showing the in-
applicability of the 1956 FCN Treaty to Nicaragua's claims. This paragraph appears however to be relevant only in re-
spect 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 activit-
ies 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 83
is informed of it (and even assuming that the justification of selfdefence, 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 find-
ing 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. Accord-
ingly, Article XXI affords *142 no defence for the United States in respect of any of the actions here under considera-
tion.
*****
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 dam-
ages 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 submis-
sions, 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 ac-
ceptance 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 inter-
national obligation‘. The corresponding declaration by which Nicaragua accepted the Court's jurisdiction contains no re-
striction 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 Interna-
tional 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 ex-
ample, in the testimony of the Nicaraguan Minister of Finance, of pecuniary loss sustained, this was based upon conten-
tions as to the responsibility of the United States which were more farreaching than the conclusions at which the Court
has been able to arrive. The opportunity should be afforded Nicaragua to demonstrate and prove *143 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 repara-
tion 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.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 84
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 de-
barring 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 estab-
lished 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 endan-
gering access to or from Nicaraguan ports, and, in particular, the laying of mines‘, *144 the Court notes that no com-
plaint 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 in-
dicating 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 Organiza-
tion 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 85
‘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 effect the results of conduct
which the Court may rule to have been contrary to international law.
**
*145 290. In the present Judgment, the Court has found that the Respondent has, by its activities in relation to the Ap-
plicant, 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. Re-
ports 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, exclu-
sion 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 veri-
fication of the agreements concerned. The work of the Contadora Group may facilitate the delicate and difficult negoti-
ations, 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.
*****
*146 292. 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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 86
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.
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;
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 in-
tervention referred to in subparagraph (3) hereof which involve the use of force, has acted, against *147 the Republic of
Nicaragua, in breach of its obligation under customary international law not to use force against another State;
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;
Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua during the first months of

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 87
1984, the United States of America has acted, against the Republic of Nicaragua, in breach of its obligations under cus-
tomary 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) 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 Re-
public of Nicaragua, in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Naviga-
tion 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.
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;
Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judge Oda.
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 prin-
ciples 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;
Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judge Oda.
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;

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 88
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 Janu-
ary 1956;
*149 (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;
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;
Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all
injury caused to Nicaragua by the breaches of the Treaty of Friendship, Commerce and Navigation between the Parties
signed at Managua on 21 January 1956;
Decides that the form and amount of such reparation, failing agreement between the Parties, will be settled by the Court,
and reserves for this purpose the subsequent procedure in the case;
(16) Unanimously,
Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in accordance with interna-
tional law.
*150 Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-
seventh day of June, one thousand nine hundred and eighty-six, in three copies, one of which will be placed in the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 89
archives of the Court and the others will be transmitted to the Government of the Republic of Nicaragua and to the Gov-
ernment of the United States of America, respectively.
(Signed) NAGENDRA SINGH, President.
(Signed) Santiago TORRES BERNARDEZ, Registrar.
President NAGENDRA SINGH, Judges LACHS, RUDA, ELIAS, AGO, SETTECAMARA and NI append separate opin-
ions to the Judgment of the Court.
Judges ODA, SCHWEBEL and Sir Robert JENNINGS append dissenting opinions to the Judgment of the Court.
(Initialled) N.S.
(Initialled) S.T.B.
*151 SEPARATE OPINION OF PRESIDENT NAGENDRA SINGH
While fully endorsing the operative holdings of the Court in this Judgment, I have considered it necessary to append this
separate opinion to emphasize certain aspects which I consider essential, either from the legal standpoint or for promot-
ing peaceful community existence of sovereign States.
A major consideration in the resolution of the dispute in this case has been the principle of non-use of force. It is indeed a
well-established tenet of modern international law that the lawful use of force is circumscribed by proper regulation, and
this is so from whichever angle one looks at it, whether the customary viewpoint or that of the conventional international
law on the subject. However the customary aspect does visualize the exceptional need for the provision of the ‘inherent
right‘ to use force in self-defence. The aforesaid concepts of the principle and its exception do have an existence inde-
pendent of treaty-law as contained in the United Nations Charter or the Inter-American system of conventional law on
the subject. In this context it appears necessary to emphasize certain aspects, which is attempted below.
(A) In fact this cardinal principle of non-use of force in international relations has been the pivotal point of a time-
honoured legal philosophy that has evolved particularly after the two World Wars of the current century. It has thus been
deliberately extended to cover the illegality of recourse to armed reprisals or other forms of armed intervention not
amounting to war which aspect may not have been established by the law of the League of Nations, or by the Nuremberg
or Tokyo Trials, but left to be expressly developed and codified by the United Nations Charter. The logic behind this ex-
tension of the principle of non-use of force to reprisals has been that if use of force was made permissible not as a lone
restricted measure of self-defence, but also for other minor provocations demanding counter-measures, the day would
soon dawn when the world would have to face the major catastrophe of a third World War –an event so dreaded in 1946
as to have justified concrete measures being taken forthwith to eliminate such a contingency arising in the future.
*152 There can be no doubt therefore of the innate legal existence of this basic reasoning, irrespective of the later devel-
opments which have now found a place in the treaty provisions as reflected in Article 2, paragraph 4, and Article 51 of
the United Nations Charter. However it is pertinent that the origin of legal regulation of use of force is much older than
the United Nations Charter and this has been acknowledged to be so. If an issue was raised whether the concepts of the
principle of non-use of force and the exception to it in the form of use of force for self-defence are to be characterized as
either part of customary international law or that of conventional law, the answer would appear to be that both the con-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 90
cepts are inherently based in customary international law in their origins, but have been developed further by treaty-law.
In any search to determine whether these concepts belong to customary or conventional international law it would appear
to be a fallacy to try to split any concept to ascertain what part or percentage of it belongs to customary law and what
fraction belongs to conventional law. There is no need to try to separate the inseparable, because the simple logical ap-
proach would be that if the concept in its origin was a customary one, as in this case, and later built up by treaty law, the
Court would be right in ruling that the present dispute before the Court does not arise under a multilateral treaty, so as to
fall outside the Court's jurisdiction because of the Vandenberg Reservation invoked by the Respondent.
It is also argued that the Court's reasoning maintaining a close parallelism between customary law and Article 2, para-
graph 4, and Article 51 of the United Nations Charter, could be justified only if the treaty text was a mere codification of
custom. As that was not the case here it is further alleged that the Court appears ‘to apply the treaty in reality‘, but under
the name or caption of custom, to evade the multilateral treaty reservation of the Respondent. This reasoning appears to
miss the fundamental aspect of the matter, which is whether, if the treaty base of a concept was removed, that concept
would fall to the ground or still survive as a principle of law recognized by the community. It is submitted that the
Charter provisions have not only developed the concept but strengthened it to the extent that it would stand on its own
even if the Charter for any reason was held inapplicable in this case. It is submitted in short that the removal of the
Charter base of the concept would still enable that concept to survive. The obvious explanation is that the customary as-
pect which has evolved with the treaty-law development has come now to stay as the existing modern concept of interna-
tional law, whether customary, because of its origins, or as ‘a general principle of international law recognized by civil-
ized nations‘.
In this context the Court's approach has indeed been cautious. For example, the requirement ‘to report‘ under Article 51
of the Charter is not insisted upon as an essential condition of the concept of self-defence but *153 mentioned by the
Court as an indication of the attitude of the State which is invoking the right of self-defence but certainly not closely fol-
lowing the treaty. The Court's observations in paragraph 200 of the Judgment are indeed to the point in this connection.
In the present case therefore the Court's approach has been a logical one, inasmuch as it has decided not to apply the mul-
tilateral treaties to the resolution of this dispute but to confine its observations to the basis of customary international
law, ruling that it had jurisdiction to apply customary law for the settlement of the case before the Court. It is felt that
this is not only the correct approach in the circumstances of this case for many reasons, but also that it represents the
contribution of the Court in emphasizing that the principle of non-use of force belongs to the realm of jus cogens, and is
the very cornerstone of the human effort to promote peace in a world torn by strife. This aspect does need to be emphas-
ized.
(B) Furthermore, it is submitted that this is a pertinent case for which all sources of law mentioned in Article 38 of the
Statute must surely be compatible with and respect the major legal principle of non-use of force which was clearly the in-
tention of the international community in 1946; the Court has felt the need to reiterate the same now in 1986 in the best
interests of all States. To lay emphasis therefore on a doubt as to how a close parallelism could ever have evolved
between customary and conventional law in relation to the concept of non-use of force and of self-defence, and thereby
to regard those concepts as treaty-based, and hence a bar to the settlement of the dispute by the Court, would be to miss a
major opportunity to state the law so as to serve the best interests of the community. The Court as the principal judicial
organ of the United Nations has to promote peace, and cannot refrain from moving in that direction.
Even if the Charter were not a codification of existing customary law on non-use of force and self-defence, and there
were a clear progressive development leading on to the banning of reprisals involving the use of force, it needs to be
stated that this developmental aspect, or the precise formulatory aspect, is surely now a part of international law, whether
it be categorized as customary or as one of the ‘general principles of law recognized by civilized nations‘. To invoke

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 91
these could not amount to defeating the intention of the State invoking the Vandenberg Reservation, because no party be-
fore a tribunal could ever plead that it could totally opt out of all the four corners of the law both conventional – because
of the reservation – and customary, because the latter was identical in content to the former and hence inapplicable.
Could a party then claim not to have any law applicable to its conduct? The Vandenberg Reservation was not intended to
be a self-assessing reservation, but if this approach were adopted it would certainly become much worse indeed, a self-
defeating one in relation to the due process of law. Therefore the Court confined *154 itself to applying customary inter-
national law in this case and held treatylaw as inapplicable. It could hardly promote in the settlement of the dispute the
concept of total evasion of law as pleaded, when the sole intention of use of the optional clause under Article 36, para-
graph 2, of the Statute could be to confer some basis of jurisdiction on the Court, however hedged about with reserva-
tions.
II
Another major consideration which has needed to be emphasized is the difficulty which the Court has experienced as a
result of the non-appearance of the Respondent at the merits stage of the case. The regret most keenly felt by the Court,
owing to the absence of the Respondent, was in relation to the correct appraisal of the evidence presented to the Court by
the Applicant. Though careful observance of Article 53 of the Statute has been the key-note of the Court's approach, that
Article could not require the Court to go beyond the regular procedures and to seek out all and every source of informa-
tion, far and near from different corners of the world, in order to adjudicate a case submitted to it. The evidence before
the Court may perhaps have fallen short of what the Court would have desired, as became noticeable because of the ab-
sence of the Respondent. However, in the light of such a situation, the Court has endeavoured to achieve as perfect an
equality between the parties as possible, in order to assess the application of the law to the facts of the case with a view
to drawing correct conclusions in the absence of the Respondent.
For my part, in regard to the flow of arms from Nicaragua to El Salvador, I believe that even if it is conceded that this
may have been both regular and substantial, as well as spread over a number of years and thus amounting to intervention
by Nicaragua in El Salvador, still it could not amount as such to an ‘armed attack‘ against El Salvador. Again, the Ap-
plicant may not have been ignorant of this flow involving the supply of arms to the rebels in El Salvador. However, even
granting all this, the Court still could not hold that such supply of arms, even though imputable as an avowed object of
Nicaragua's policy, could amount to an ‘armed attack‘ an El Salvador, so as to justify the exercise of the right of collect-
ive self-defence by the United States against Nicaragua. This conclusion of the Court is indeed warranted by whatever
process of reasoning one adopts, and hence I have voted for subparagraph (2) of operative paragraph 292 of the Judg-
ment.
Furthermore, it has been argued that the Court should in its Judgment have passed strictures on the conduct of Nicaragua
if it found that, by the said flow of arms to El Salvador, Nicaragua was violating the principle of non-intervention in the
affairs of a state, because the arms supply was *155 imputable to Nicaragua. It is submitted that the Court rightly felt that
it could not do so, because the case before the Court was between Nicaragua and the United States, and not between
Nicaragua and El Salvador. The sole concern of the Court in this case was to adjudge the conduct of Nicaragua in so far
as it was relevant to the determination of the validity of the plea of self-defence raised by the Respondent. In that particu-
lar context, all that was necessary was to determine if the said arms flow from Nicaragua to El Salvador was of such an
order as to warrant intervention by the Respondent on the ground of collective self-defence. This aspect the Court has ex-
amined in detail in paragraphs 128 to 160 and 227 to 237 of the Judgment, and I am in entire agreement with the legal
conclusions therein stated. No tribunal could do more in appreciation of the position of the absent Respondent, because
to do otherwise would be to annihilate the very principle of equality of parties by placing the Respondent in a position
more favourable than the Applicant.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 92
In the light of the aforesaid reasoning, it is difficult to accept that it is a just appreciation of this case to maintain that the
Court simply adopted the false testimony of witnesses produced by Nicaragua on a matter which is essential to the dis-
position of this case. For example in one paragraph of the Judgment, paragraph 84, Mr. Chamorro's evidence on a partic-
ular question is downgraded as ‘strictly hearsay‘, and therefore property evaluated in the context of this case.
In fact the Court has found reason to mention in paragraphs 59 ff. of its Judgment the principles observed by it in the ap-
praisal of the evidence produced before it. These principles by all standards are fair and just and do merit a mention in
this context.
Again, in paragraph 135 of the Judgment, where the evidence of Mr. David MacMichael is relied upon, the Court has not
lost sight of the basic values in assessing the testimony and has noted the probative importance of a witness
‘called by Nicaragua in order to negate the allegation of the United States that the Government of Nicaragua has
been engaged in the supply of arms to the armed opposition in El Salvador 'whose testimony’ only partly contra-
dicted that allegation‘ (emphasis added).
Similar observations of the Court in paragraph 146 are pertinent to mention here.
Furthermore, leaving aside revision under Article 61 of the Statute, the validity of a judgment is not a matter to be chal-
lenged at any stage by anyone on any grounds. The decision of the Court is the result of a collegiate exercise reached
after prolonged deliberation and a full exchange of views of no less than 15 judges who, working according to the Statute
and Rules of Court, have examined the legal arguments and all the evidence before it. In this, as in all other cases, every
care has been taken to strictly observe the procedures prescribed and the decision is upheld by a clear majority. What is
more, the binding character of the judgment under *156 the Statute (Art. 59) is made sacrosanct by a provision of the
United Nations Charter (Art. 94): all Members of the United Nations have undertaken an obligation to comply with the
Court's decisions addressed to them and to respect the judgment.
III
May I also add that I agree with the view that the CIA Manual entitled Operaciones sicologicas en guerra de guerrillas
cannot be a breach of humanitarian law as such, but only an encouragement provoking such breaches, which aspect the
Court has endeavoured to bring out correctly in subparagraph (9) of the operative paragraph 292 of the Judgment. Fur-
thermore, I would also emphasize the assertion that the said manual was condemned by the Permanent Select Committee
on Intelligence of the House of Representatives, an attempt was made to recall copies, and the contras were asked to ig-
nore it, all of which does reflect the healthy concern of the Respondent, which has a great legal tradition of respect for
the judicial process and human rights.
Nevertheless, that such a manual did appear and was attributable to the Respondent through the CIA, although compiled
at a low level, was all the more regrettable because of the aforesaid traditional respect of the United States for the rule of
law, nationally and internationally.
IV
I cannot conclude this opinion without emphasizing the key importance of the doctrine of non-intervention in the affairs
of States which is so vital for the peace and progress of the international community. To ignore this doctrine is to under-
mine international order and to promote violence and bloodshed which may prove catastrophic in the end. The significant
contribution which the Latin American treaty system along with the United Nations Charter make to the essentials of
sound public order embraces the clear, unequivocal expression given to the principle of non-intervention, to be treated as
a sanctified absolute rule of law whose non-observance could lead to disastrous consequences causing untold misery to

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 93
humanity. The last subparagraph (16) of the operative paragraph 292 of the Judgment, which has been adopted unanim-
ously by the Court, really rests on the due observance of the basic principles of non-use of force and non-intervention in
the affairs of States. The Court has rightly held them both as principles of customary international law although sancti-
fied by treaty law, but applicable in this case in the former customary manifestation to fully meet *157 the viewpoint of
the Respondent which the Court has rightly respected. However, the concepts of both these principles do emerge in their
manifestation here fully reinvigorated by being further strengthened by the express consent of States particularly the
parties in dispute here. This must indeed have all the weight that law could ever command in any case and no reserva-
tions could ever suppress this pivotal fact of inter-state law, life and relations. This in my view is the main thrust of the
Judgment of the Court, rendered with utmost sincerity in the hope of serving the best interests of the international com-
munity.
(Signed) NAGENDRA SINGH.
*158 SEPARATE OPINION OF JUDGE LACHS
At the outset, I am impelled to express my regret at what, to my mind, is a strange occurrence in the present case. It was
stated that much of the evidence was ‘of a highly sensitive intelligence character‘ and asserted that the Respondent would
‘not risk United States national security by presenting such sensitive material in public‘.
Giving all due respect where it is due, this is not the first time that ‘security risks‘ have been invoked in connection with
proceedings before this Court. In the Corfu Channel case the United Kingdom Agent was requested to produce certain
documents ‘for use of the Court‘. These documents were not produced, the Agent pleading naval secrecy; and the United
Kingdom witnesses declined to answer questions relating to them. Consequently the Judgment stated:
‘The Court cannot . . . draw from the refusal to produce the orders any conclusions differing from those to which the
actual events gave rise.‘ (I.C.J. Reports 1949, p. 32.)
However, in the present case another factor has been added to the risk of presenting ‘such sensitive material before a
Court‘, for in the same context an allusion was made to the alliance whose members include the countries of which cer-
tain Judges were nationals. In brief, it was suggested that in view of this alliance these Judges, or rather the Judge inques-
tion – for only one is now involved – may be ‘more‘ than a Judge or ‘less‘ than a Judge. In either case he would be unfit
to sit on the bench. If so, he would be unfit to sit not only in this but in any other case. For, even apart from the stipula-
tions of Article 2 of the Court's Statute, two requirements are overriding: integrity and independence.
A judge – as needs no emphasis – is bound to be impartial, objective, detached, disinterested and unbiased. In invoking
the assistance of this Court or accepting its jurisdiction, States must feel assured that the facts of the dispute will be prop-
erly elicited; they must have the certainty that their jural relationship will be properly defined and that no partiality will
result in injustice towards them. Thus those on the bench may represent different schools of law, may have different
ideas about law and justice, be inspired by conflicting philosophies or travel on divergent roads – as indeed will often be
true of the States parties to a case – and that their characters, outlook and background will widely differ is virtually a co-
rollary of the *159 diversity imposed by the Statute. But whatever philosophy the judges may confess they are bound to
‘master the facts‘ and then apply to them the law with utmost honesty.
As human beings, judges have their weaknesses and limitations; however, to be equal to their task they have to try to
overcome them. Thus in both their achievements and shortcomings they must be looked upon as individuals: it is their
personality that matters. As James Brown Scott so rightly stated:
‘The Court is an admirable body representing the different forms of civilization and systems of law and calculated
not only to do justice between nations without fear or favour but to their satisfaction. One dream of the ages has been

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 94
realized in our time.‘ (15 AJIL, 1921, pp. 557-558.)
This variety of origin of the Judges is certainly the great strength of this Court. It is a major contributory factor to the
confidence that all States may feel in the balanced nature of the Court's decisions and the broad spectrum of legal opinion
they represent. But can this diversity justify an invidious distinction between Judges according to their nationality or the
alliances of which their countries may happen to be members? All Judges ‘should be not only impartial but also inde-
pendent of control by their own countries or the United Nations Organization‘ (UNCIO, Vol. 13, p. 174). In fact, while
they may have served their countries in various capacities, they have had to cut the ties on becoming a Judge. As was
once said:
‘It is difficult for any Judge to solicit an act of faith in favour of a process so epistemologically subjective and tem-
poral. This is essentially true of the international Judge who must seek a commitment from various societies operat-
ing within differing systems of legal hypothesis.‘
Each and every Judge stands on his own record. As the late Judge Philip C. Jessup held, speaking from his considerable
experience and referring to a particular dispute:
‘It is one of the cases which show that a dissection of the views of the Judges of the Court to prove some kind of na-
tional alignment is often not supportable and may be quite misleading.‘
A telling illustration of this remark, and one apposite to the issue I raise, may be seen in the Judgment in the United
States Diplomatic and Consular Staff in Tehran case (I.C.J. Reports 1980, pp. 44-45; cf. also I.C.J. Reports 1982, p. 8).
‘The Justice writing an opinion‘, said John Mason Brown, a distinguished literary figure on the American scene,
‘carries a burden unknown to the playwright, the poet or the novelist. *160 It is a burden of public responsibility so
heavy that its weight often makes itself felt in his prose. Wisdom is what we want from a Judge, not wit; clarity of
phrase, before beauty, decision rather than diversion. No wonder Judges' opinions, being the awesome things they
are, using language as an instrument of action and capable of changing the history of a nation, are seldom read as lit-
erature.‘ (Lecture delivered before the American Law Institute, 23 May 1952.)
Justice Frankfurter, speaking of Judges of the Supreme Court, observed:

‘What is essential for the discharge of functions that are almost too much by nine fallible creatures is that you get
men who bring to their task, first and foremost, humility and an understanding of the range of the problems and of
their own inadequacy in dealing with them, disinterestedness and allegiance to nothing except the effort, amid tough
words and limited insights, to find the path through precedent, through policy, through history to the best Judgment
that fallible creatures can reach in that most difficult of all tasks: the achievement of justice between men and men,
between men and State, through reason called law.‘
The words of that great judge Oliver Wendell Holmes may be added:
‘The remoter and more general aspects of the law are those which give it universal interest. It is through them that
you not only become a great master in your calling but connect your subject with the universe and catch an echo of
the infinite, a glimpse of its unfathomable process, a hint of the universal law.‘ (‘The Path of Law‘, a talk given in
1897.)
This goal is certainly attainable to the very few, but we can and should attempt to strive for it: to uphold the dignity of a
profession to which society for centuries has attached profound importance. In the light of such considerations, which are
seldom absent from the judicial mind, it appears unseemly to doubt a Judge on account of the place where he was born or
the passport he may carry. And this case is probably unique as one in which these are by implication claimed to impair a
Judge's status, standing, wisdom, discretion and impartiality, and to warrant the limitation of the knowledge made avail-
able to him for the discharge of his trust.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 95
**
*161 Since the Court has pronounced its final Judgment in the present case and I did not express my views at the earlier
stages of the proceedings, I take this opportunity to do so now. I have to revert to some questions already settled but I
will do so very briefly in order not to overburden the reader who faces so many pages reflecting the wealth of thought to
which the present case has given rise. Though I would have preferred the Court to have dealt in greater detail with the
question of assistance from or through Nicaragua to opposition forces in El Salvador, since the principal issues before the
Court were those of self-defence and resort to the use of force, I will not touch upon the substance of this question. I
would also have preferred different formulae to be used here and there in the Judgment. Be that as it may, the first issue
on which I felt it behoves me to make my position clear is that of the Court's jurisdiction under Article 36 of the Statute.
I. ASPECTS OF JURISDICTION
The 1984 Judgment, as well as the separate or dissenting opinions appended to it, revealed that the case had some highly
exceptional aspects beyond the routine questions that demand to be answered in determining the Court's jurisdiction.
These aspects arose chiefly from the fact that, in the League of Nations system, two instruments were involved in the
procedure for accepting the jurisdiction of the Court as compulsory in all or certain international legal disputes: the Pro-
tocol of adherence to the actual Statute of the Permanent Court of International Justice, and the Declaration of acceptance
corresponding to the so-called Optional Clause. While the former in all cases required ratification, the latter needed rati-
fying only where domestic law so demanded, which was not Nicaragua's case.
Nicaragua made its Declaration as long ago as 1929; thus in subsequent Reports of the Permanent Court of International
Justice it was listed among those States having made a Declaration under the ‘Optional Clause‘ without any requirement
of ratification (P.C.I.J., Series E, No. 16, 1939-1945, p. 49). It was not however listed among States bound by the Clause
(ibid., p. 50), because, as was noted, though it had signed the Protocol and had notified the Secretary-General of the
League (by a telegram of 29 November 1939) that an instrument of ratification was to be dispatched, no trace could be
discovered of such an instrument having been received.
The implications of this situation revolve on the interpretation of Article 36, paragraph 5, of the present Court's Statute,
and I have to say that the issue may be seen also in a different perspective than that reflected in the Judgment of 1984
(I.C.J. Reports 1984, pp. 403 ff.). I feel that the making of a Declaration under the Optional Clause was not only a mani-
festation of *162 Nicaragua's willingness to subject itself to compulsory jurisdiction but also, ipso jure, a confirmation of
its will to become a party to the Statute of the Permanent Court of International Justice. From the viewpoint of intent it
was thus tantamount to ratification of its signature of the Protocol. Formally, it is true, this did not suffice, and so we are
faced here with the classic issue of the relationship between ‘will‘ and ‘deed‘. For, as this Court has itself remarked:
‘Just as a deed without the intent is not enough, so equally the will without the deed does not suffice to constitute a
valid legal transaction.‘ (I.C.J. Reports 1961, p. 31.)
However, one has to bear in mind that in the case of Nicaragua the will was clearly manifested by the whole procedure,
beginning with the acceptance of the Optional Clause and ending with the telegram concerning the ratification of the Pro-
tocol, evidenced by decisions of the competent organs of the State including signature by the President. The telegram in-
deed notified these acts to the Secretary-General of the League of Nations. The question arises as to its legal effects,
since the instrument of ratification was not deposited.
In this context I wish to recall two factors which could not have remained without legal effect.
It may of course be argued that ratification is not a mere formality. However, in the present case, more attention should

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 96
have been paid to the conduct of the States concerned, their practice, ‘toleration‘ or ‘lack of protest‘.
The conduct of Nicaragua, in particular, made it clear that it had acquiesced in being bound to accept the compulsory jur-
isdiction of the Court and that this acquiescence had an effect on the requirement of ratification of the Protocol to the old
Court's Statute – a requirement moreover which could arguably have been regarded as otiose now that Nicaragua's mem-
bership of the United Nations had made it a party to the Statute of the new and may have called for a different action.
Moreover one should bear in mind that the process of ratification had been initiated; there was at least an ‘inchoate rati-
fication‘; for the process had already been engaged and completed, on the domestic plane, and the only point of such do-
mestic ratification was to legalize the international step which had next to be taken.
Here I find a very essential factor, and one which, by force of practice over a period of almost 40 years, could not have
remained without legal effect upon an instrument even if legally imperfect.
An important factor was undoubtedly the Yearbook of the International Court of Justice (to whose Statute Nicaragua had
become a party), which consistently featured Nicaragua among the States which had accepted its compulsory jurisdic-
tion, while adding a footnote: ‘the notification concerning the deposit of the instrument of ratification has not, however,
been *163 received in the Registry.‘ Since 1955-1956 it read: ‘it does not appear, however, that the instrument of ratific-
ation was ever received by the League of Nations.‘ One wonders how this affected the heading of the list; and another list
in which reference was made to Article 36, paragraph 5, of the Statute of the present Court (cf. I.C.J. Yearbook
1947-1948, pp. 38 ff.).
In considering what value to attach to the Yearbook of the court, which is published by its Registrar on the instructions
of the Court, one has naturally to give full weight to the reservation that it ‘is prepared by the Registry‘ and ‘in no way
involves the responsibility of the Court‘, a caveat that ‘refers particularly‘ to
‘summaries of judgments, advisory opinions and orders contained in Chapter VI [which] cannot be quoted
against the actual text of those judgments, advisory opinions and orders and do not constitute an interpretation of
them‘.
However, there is much more to the matter than this: the Court itself has been submitting annually for some years to the
General Assembly of the United Nations a report, signed by the President of the Court, which becomes an official docu-
ment of the Assembly and has evidential value. This report has from the outset, and without any caveat or footnote what-
soever, included Nicaragua among States having made declarations accepting the Court's compulsory jurisdiction.
The other factor is preparatory work that was needed to bring the case concerning the Arbitral Award Made by the King
of Spain on 23 December 1906 before the Court. Here the enquiry conducted on the subject by former Judge Hudson,
acting on behalf of Honduras, is not unenlightening.
Hudson approached the Registrar of the Court on this subject under discussion and received a very interesting reply:
‘I do not think one could disagree with the view you expressed when you said that it would be difficult to regard
Nicaragua's ratification of the Charter of the United Nations as affecting that State's acceptance of compulsory juris-
diction. If the declaration of 24 September 1929 was in fact ineffective by reason of failure to ratify the Protocol of
signature, I think it is impossible to say that Nicaragua's ratification of the Charter would make it effective and there-
fore bring into play Article 36, paragraph 5, of the Statute of the present Court.‘ (Letter of 2 September 1955;
Counter-Memorial in the present case, Ann. 35.)
Notwithstanding this statement, Hudson took a very guarded view on the subject, because in analysing the case he ar-
rived at the conclusion:
*164 ‘It must be borne in mind that the International Court of Justice has not determined whether there is any degree

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 97
to which Nicaragua's Government is bound by the declaration of 24 September 1929 as to the International Court of
Justice. Without such determination it is impossible to say definitely whether or not the Government of Honduras
may proceed against the Government of Nicaragua.‘ (Counter-Memorial in the present case, Ann. 37.)
He also visualized the following:
‘it is also possible that the action should begin against Nicaragua in spite of the fact that the State is not bound
by the second paragraph of Article 36 of the Statute of the International Court of Justice. If Nicaragua later
agrees to the jurisdiction the situation will be much the same as if it had agreed to a special agreement in ad-
vance of the case.‘ (Ibid.)
Finally it is worth recalling that Hudson, after his exchanges with the Registrar, when publishing his last annual article
on the International Court in 1957, continued to include Nicaragua in the list of States parties to the compulsory jurisdic-
tion of the Court. The Respondent suggests that he did so ‘perhaps in deference to his client, Honduras‘ and goes on to
point out that Hudson nevertheless ‘introduced a new cryptic footnote to Nicaragua's listing: 'See the relevant corres-
pondence’.‘ (M. Hudson, ‘The Thirty-fifth Year of the World Court‘, 51 AJIL, 1957, 17; cf. also Counter-Memorial in
the present case, para. 143.)
One should however also recall the statement of the Nicaraguan Ambassador in Washington denying that Nicaragua had
agreed to submit to compulsory jurisdiction (ibid., para. 116). Yet there was a special reason for this attitude, and this is
made clear.
Nicaragua held that the dispute with Honduras was one which ‘ne porte en aucune facon sur la realite de tout fait qui, s'il
etait etabli, constituerait la violation d'un engagement international‘ (I.C.J. Pleadings, Arbitral Award Made by the King
of Spain on 23 December 1906, Vol. I, p. 132, para. 3; cf. also para. 4). These were, then, the special motives in that par-
ticular case for Nicaragua to try to evade the compulsory jurisdiction of the Court and to seek a special agreement on
special conditions.
As is well known, the Parties did conclude a special agreement, yet, this notwithstanding, Honduras referred in its Me-
morial to Article 36, paragraph 2, of the Statute of the Court and also to the Decree of 14 February 1935 of the Senate of
Nicaragua ratifying the Statute and Protocol of the Permanent Court of International Justice, a similar action undertaken
on 11 July 1935 by the Chamber of Deputies and its publication in the Official Gazette in 1939, No. 130, page 1033. In
the same Memorial Honduras referred further to the fact that the Parties had, on the basis of Article 36, paragraph 2, of
the Statute of the International Court of Justice, recognized its compulsory jurisdiction (I.C.J. Pleadings, Arbitral *165
Award Made by the King of Spain on 23 December 1906, Vol. I, p. 59, paras. 37-39).
If the Registrar referred to above had a negative view on the subject, why did he continue to publish this information?
Obviously, the footnote did not resolve the problem. Was it not his duty to draw the attention of the respective United
Nations organs to it in order to clarify the situation in the light of the circumstances which arose in the case concerning
the Arbitral Award Made by the King of Spain on 23 December 1906? Should not the attention of the Court have been
drawn to the status of Nicaragua as he saw it? Clearly the only possible way of arriving at a definite conclusion would
have been for the Court and the Secretary-General of the United Nations to be informed in order to resolve the issue. It
could have been decided to inform Nicaragua accordingly. Its Government could have been asked to make clear whether
it considered itself bound, in which case it may have been requested to clinch the matter, or, if it felt otherwise, to say so,
which would imply its deletion from the list. This was not done, and no action was taken for a further 30 years. Here I
cannot avoid concluding that the blame for this very awkward and time-wasting controversy on the issue of jurisdiction
which caused so many difficulties must be laid at the door of the United Nations and those of its organs which failed to
clarify the situation in time.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 98
If this was so, the reason was not that Nicaragua was accorded special status or that the law was interpreted in its favour.
Thus any suggestions that the Court insisted on the exercise of jurisdiction are revealed as hollow. It has never so con-
ducted itself in the past, and has not done so now. I, for one, have always been inclined to severity in testing the require-
ments to this effect.
My final conclusion on the subject of Nicaragua's Declaration is that while that State's submission to the jurisdiction of
the Permanent Court of International Justice was imperfect, so far as the present Court is concerned, Nicaragua's status as
a party to the Statute, the effluxion of time – 40 years' acquiescence on the part of all concerned – the lack of action by
the responsible officials, must all be taken into account. No less essential has been the documentary affirmation of
Nicaragua's status in the Year-book and Reports of the Court. At all events, all these factors had combined to cure the
imperfection which may have constituted an obstacle in the acceptance of the jurisdiction. For one should bear in mind
that legal effects, rights and obligations arise in the most different circumstances, some unforeseen and unforeseeable:
legal relations evolve sometimes owing to a strange accumulation of will and deeds.
On the other hand, the jurisdiction established by the bilateral treaty of 1956 leaves no room for doubt.
**
*166 II. JUSTICIABILITY OF THE CASE
I now approach another subject, one raised in the first place by the respondent State – that of the alleged non-
justiciability of the case. This indeed is a very serious objection and needed to be given adequate consideration. In prin-
ciple, a case may be justiciable only if the jurisdiction of the Court has a basis in law and the merits of the case can be
decided in accordance with law, which however ‘shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto‘ (Statute, Art. 38, para. 2). In the present case it has been claimed that the submission of
the ‘lawfulness of an allegedly ongoing use of armed force‘ to the Court for determination is without precedent
(Counter-Memorial, para. 480); that ‘decisions concerning the resort to force during ongoing armed conflict are the ex-
clusive preserve of political modes of resolution, which by their nature need not entail determinations of legal fault‘
(ibid., para. 484; also paras. 520 ff.): if a country's security is in jeopardy, the necessity of using force is alleged to be a
purely political or military matter, thus not a matter such as the Court could possibly decide. It has also been claimed, as
recalled by the Judgment, that the matters subject of the Application were left by the Charter ‘to the exclusive compet-
ence of the political organs‘ of the United Nations, in particular the Security Council (ibid., paras. 450 ff.). Strictly
speaking, however, this question of the competence of other organs of the United Nations involves issues of ‘judicial
propriety‘ rather than justiciability.
It is also submitted that the ‘established processes for the resolution of the overall issues of Central America have not
been exhausted‘ and that ‘adjudication of only one part of the issues involved in the Contadora Process would necessarily
disrupt that process‘ (ibid., paras. 532 ff. and 548 ff.). Thus the Respondent suggests that the dispute is not justiciable.
The Northern Cameroons case is referred to, and in particular the statement that ‘even if the Court, when seised, finds
that it has jurisdiction, the Court is not compelled in every case to exercise that jurisdiction‘ (I.C.J. Reports 1963, p. 29).
In that case it was held that Cameroon had directed its plea to the General Assembly, which had rejected it (ibid., p. 32).
The Judgment added that, in the circumstances, ‘The decisions of the General Assembly would not be reversed by the
judgment of the Court‘ (ibid., p. 33). The Respondent in the present case suggested that ‘the Court should be guided‘ by
the ‘considerations‘ of that case. With all due respect to this reasoning, it is worth recalling that, in the case referred to,
the Court found ‘that the resolution [of the General Assembly] had definitive effect‘ (ibid., quoted by the Respondent).
But the most important passage of the Judgment states:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 99
*167 ‘The function of the Court is to state the law, but it may pronounce judgment only in connection with concrete
cases where there exists at the time of the adjudication an actual controversy involving a conflict of legal interests
between the parties.‘ (I.C.J. Reports 1963, pp. 33-34.)
In short, it was a ‘moot‘ case. For the Court found that ‘circumstances that have since arisen render any adjudication
devoid of purpose‘ (ibid., p. 38). The same view was also held in the Nuclear Tests cases: ‘The Court therefore sees no
reason to allow the continuance of proceedings which it knows are bound to be fruitless.‘ (I.C.J. Reports 1974, p. 271,
para. 58.) The present case, in contrast, is one in which the issues are very much alive and in which a clarification of the
law can produce positive results. It is above all one in which the action of the Court may well assist the deliberations of
the other organs and intermediaries concerned. The precedents referred to are therefore inept.
Reliance has also been placed on the decision of the Court in the Corfu Channel case. However, the argument based on
that case was rebutted by recalling that what was there in question amounted to no more than a single act involving use
of force, whereas the present case features continuous hostile action. Corfu Channel has therefore little bearing on wheth-
er or not the Court may consider situations of ‘ongoing armed conflict‘. However that may be, it should be emphasized
that the Parties now before the Court have been at odds for a long time, yet they maintain diplomatic relations, they are
not at war, their armies are not engaged in battle, and the acts of force considered here are not executed by them. The
Court is not faced with the ‘armed forces‘ of one State acting against another. Thus the argument of the necessity of
force, or its use by an organ of a State, is not involved. In a case of this kind it may be maintained that there is no prede-
termined limit to the possibilities of judicial settlement. In a message of the Swiss Federal Council published in 1924 on
the occasion of the conclusion of a treaty for the arbitration and judicial settlement of disputes it was stated that:
‘Un Etat n'abdique rien de sa souverainete lorsque, librement, deliberement, il assure par avance une solution arbit-
rale ou judiciaire a tous les differends, sans exception, qui n'auraient pu etre aplanis par voie de negociations direct-
es. Il renonce seulement, par esprit de justice et de paix, a faire prevaloir ce qu'il considere comme son bon droit par
des moyens qui pourraient etre inconciliables avec la conception meme du droit.‘ (Feuille federale de la Confedera-
tion suisse, 1924, Vol. III, p. 697.)
In general it is power relationships – or whatever other name may be attached to this area of relations between States –
which render a given legal dispute indivorcible from considerations going beyond the legal object and thus prevent its ju-
dicial solution.
*168 But today the body of international law has in any case grown to dimensions unknown in the past. Almost all dis-
putes arising between States have both political and legal aspects; politics and law meet at almost every point on the
road. Political organs, national or international, are under obligation to respect the law. This does not mean that all dis-
putes arising out of them are suitable for judicial solution. Need I recall that in the last century and the beginning of the
present, those concerning ‘vital interests‘ of States, or their ‘honour‘, were viewed as political, and thus not subject to
third-party settlement? Even a very minute dispute may be viewed as touching the vital interests of a State. On the other
hand, boundary disputes which frequently involve hundreds of miles of land, and vast areas of the ocean –thus concern-
ing the vital interests of many States – have been most frequently referred to courts. It is here where subjective and ob-
jective criteria confront one another. If the first criterion is applied, then of course the will of the parties, or of one of
them, is decisive. If the second is involved, one can confirm without hesitation that there is no dispute which is not justi-
ciable. Yet a balance must be struck between the two criteria: the world we live in is one where certain notions, though
part of the vocabulary of law, continue to be controlled by subjective evaluations. An illustration in this respect may be
found in the field of disarmament: or the very concept of ‘balance of power‘. If a State were to seek a legal remedy from
the Court, relying on the criterion of ‘balance of power‘, the Court would have to reflect very seriously before assuming
jurisdiction, no matter how well established the Court's formal competence.
The Court's primary task is to ascertain the law, and to leave no doubt as to its meaning.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 100
Tension between the parties is not the decisive factor: it may be the outcome of an eminently ‘legal‘ dispute. Nor is the
test to be sought in the ‘importance‘ of the dispute. Sometimes the officials responsible would prefer to have the dispute
settled by the parties themselves and not by a group of jurists who are mostly unknown to them; to have it resolved on
subjective criteria, by a decision less learned but more practice-oriented.
It is frequently argued that on matters of great importance law is less precise while on other, minor matters it contains
much more detail. One could maintain that the present state of international law opens the way to the legal solution of all
disputes, but would such a solution always dispose of the problems behind them?
Thus it becomes clear that the dividing line between justiciable and non-justiciable disputes is one that can be drawn only
with great difficulty. It is not the purely formal aspects that should in my view be decisive, but the legal framework, the
efficacy of the solution that can be offered, the contribution the judgment may make to removing one more dispute from
the overcrowded agenda of contention the world has to deal with today.
*169 The view ‘that the Court cannot adjudicate the merits of the complaints alleged in the Nicaraguan Application does
not require the conclusion that international law is neither directly relevant nor of fundamental importance in the settle-
ment of international disputes‘ (Counter-Memorial, para. 531).
In this context reference is made to Lauterpacht's dictum:

‘Here as elsewhere care must be taken not to confuse the limitation upon the unrestricted freedom of judicial de-
[FN1]
cision with a limitation of the rule of law .‘
However, Lauterpacht also maintained that:
‘there is no fixed limit to the possibilities of judicial settlement. All conflicts in the sphere of international polit-
ics can be reduced to contests of a legal nature. The only decisive test of the justiciability of the dispute is the
willingness of the disputants to submit the conflict to the arbitrament of law.‘ (Ibid.)
Among the reservations contained in the Respondent's declaration recognizing the Court's jurisdiction, there is none
which would exclude disputes of the character reflected in the present case. For it is not among those declarants which
have accepted the compulsory jurisdiction of the Court with the exception of ‘disputes arising out of any war or interna-
tional hostilities‘, or ‘affecting the national security‘.
Once the case is brought before it, the Court is obviously not bound by the reasoning of either party, which may attach to
the dispute different labels. Here it need not accept the reasoning of Nicaragua and in fact it does not on several points.
In this context it may be of interest to recall some comments on the Judgment in the United States Diplomatic and Con-
sular Staff in Tehran case made by a recognized authority on the International Court of Justice:
‘According to one doctrine of justiciability of disputes, it would be difficult to imagine a more tension-laden and
therefore non-justiciable dispute. The alleged non-justiciable character of the dispute was underscored by Iran in its
[FN2]
letter of 9 December 1979 to the Court .‘
‘In the view of the United States, the case was eminently justiciable.‘ [As the Applicant's Agent stated in presenting
the case at the phase of Provisional Measures:] ‘this case presents the Court with the most dramatic opportunity it
has ever had to affirm the rule of law *170 among nations and thus fulfil the world community's expectations that
[FN3]
the Court will act vigorously in the interests of international law and international peace ‘. ‘It would seem
[says Gross] that the Court lived up to these expectations.‘ ‘There is no doubt that this case represents a landmark in
the relations between the United States and the Court.‘ [The author adds:] ‘This then is the first time in 35 years that
[FN4]
the United States has turned to the Court .‘
Finally, the justiciability of the present case is not affected by any other means tried by the Parties in order to solve their

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 101
disputes. As I indicated some time ago:

‘There are obviously some disputes which can be resolved only by negotiations, because there is no alternative in
view of the character of the subject-matter involved and the measures envisaged. But there are many other disputes
in which a combination of methods would facilitate their resolution. The frequently unorthodox nature of the prob-
lems facing States today requires as many tools to be used and as many avenues to be opened as possible, in order to
resolve the intricate and frequently multi-dimensional issues involved. It is sometimes desirable to apply several
methods at the same time or successively. Thus no incompatibility should be seen between the various instruments
[FN5]
and fora to which States may resort, for all are mutually complementary .‘
**
III. JUDICIAL ERROR
Anatole France had one of the heroes of his stories, Judge Thomas de Maulan, say: ‘un juge soucieux de bien remplir sa
fonction se garde de toute cause d'erreur. Croyez-le bien, cher monsieur, l'erreur judiciaire est un mythe.‘ Yet such errors
do occur, to all. As Justice Frankfurter stated in the United Mine Workers case: ‘Even this Court has the last say only for
a time. Being composed of fallible men, it may err.‘ (330 US 308, quoted in his concurring opinion in the famous Little
Rock School case: 358 US 22.)
As an illustration of this unfortunate fact, I myself find upon reflection that the Order of 4 October 1984 (I.C.J. Reports
1984, pp. 215 ff.), should *171 have granted El Salvador a hearing on its declaration of intervention. In that Order the
Court took note that El Salvador reserved
‘the right in a later substantive phase of the case to address the interpretation and application of the conventions
to which it is also a party relevant to that phase‘.
One might have hoped or expected that El Salvador would at the later stage –the ‘substantive phase‘ – deal with all the
issues of interest to it, and thus assist the Court in the performance of its task.
However, while there was no adequate reason to grant El Salvador the right of intervention at the jurisdictional stage, it
would probably have been in the interest of the proper administration of justice for the Court to have granted ‘a hearing‘
and thus to have become more enlightened on the issues El Salvador had in mind; at the very least, it would have preven-
ted an impression of justice ‘not being seen to be done‘. It is, after all, ‘of fundamental importance that justice should not
only be done, but should manifestedly and undoubtedly be seen to be done‘ (Lord Hewart in The King v. Sussex Justices
ex parte McCarthy, 1 K.B. [1924], pp. 256 and 259).
However, ‘I sometimes think that we worry ourselves overmuch‘ – Justice Cardozo once exclaimed – ‘about the endur-
ing consequences of our errors. They may work a little confusion for a time. The future takes care of such things.‘
Might it not be a slight exaggeration to draw from the error to which I refer conclusions totally unrelated to it?
**
IV. REGIONAL EFFORTS TOWARDS A SOLUTION
The Court's decision is intended to resolve the dispute between the Parties submitted to it in the present case.
However, it is also greatly to be hoped that it will serve to diminish the basic tension and confrontation between them. It
should give occasion to the opening of a new chapter in their mutual relationship and to the redoubling of efforts to assist
them in the resolution of their conflict.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 102
The Court should take note with satisfaction of the well-known diplomatic initiative undertaken in 1983 by four countries
of the area: Colombia, Mexico, Panama and Venezuela. Its purpose was to reach a regional arrangement including those
States and the five countries of Central America – among them Nicaragua. This plan was commended by the *172 Secur-
ity Council of the United Nations (res. 530, 19 May 1983) and the group was urged ‘to spare no effort to find solutions to
the problems of the region‘. Similar action was taken by the General Assembly (res. 38/10, 11 November 1983) and the
General Assembly of the Organization of American States (AC/res. 675 (XXII- 6/83), 18 November 1983).
It is noteworthy in how consistent and determined a fashion the Group has continued its efforts, addressing itself to basic
economic, social, political and security concerns which plague the region. This has been borne out by a series of meet-
ings, draft agreements and continuous consultations.
I am confident that the Governments of the ‘Contadora Group‘ States are genuinely concerned to fulfil the task they vol-
untarily accepted: to secure peace, territorial integrity and economic development in the countries of Central America;
i.e., Nicaragua, Costa Rica, Honduras, El Salvador and Guatemala.
At a recent stage the interest in these problems has grown and other Latin American States – Argentina, Brazil, Peru and
Uruguay – have established the so-called ‘support group‘ to work in co-operation with the Contadora Group.
While the Court was dealing with the case, representatives of all these States met in order to prepare the Contadora Act.
The meeting held in Guatemala City (15 January 1986), following the inauguration of the first civilian President after 32
years, was viewed as particularly successful. The last meeting held in May 1986 recorded some progress but as yet has
not produced the hoped-for treaties.
This remains the best way for the solution of the conflict: one in which the Applicant and other Central American States
would undertake clear and unequivocal obligations and which would be guaranteed by other Latin American States with
the participation of the respondent Government. Both Parties, then, should co-operate with the Contadora Group as the
most-qualified intermediary.
As the Court held in the past, its real function, whatever the character of the dispute, is ‘to facilitate, so far as is compat-
ible with its Statute, a direct and friendly settlement‘ (P.C.I.J., Series A, No. 22, p. 13). It has stressed on other occasions
the great desirability of a negotiated settlement (P.C.I.J., Series A/B, No. 78, p. 178).
Therefore, while it is my profound conviction that a peaceful solution of the dispute remains a realistic possibility and
the only feasible one, I consider the Court should in the meantime have stressed that, in order not to disturb such a solu-
tion, both Parties should refrain from any activities likely to aggravate or complicate their relationship and should do
everything in their power to speed up their efforts, jointly with the States mentioned, to reach the required agreement on
reconciliation, and on co-operation in various domains.
The Judgment can thus make a constructive contribution to the resolution*173 of a dangerous dispute – paving the way
to stability in a region troubled for decades by conflict and confrontation.
This Court can make contributions in many other cases and resolve controversies which trouble good relations between
States. This is the task to which the Court is committed.
(Signed) Manfred LACHS.
*174 SEPARATE OPINION OF JUDGE RUDA

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 103
1. I have voted in favour of the decisions adopted by the Court in the operative part, with the exception of subparagraph
(1), relating to the application of the reservation made by the United States of America, at the time of the acceptance of
the jurisdiction of the Court, under Article 36, paragraph 2, of the Statute, which is known as the ‘Vandenberg Reserva-
tion‘.
2. This favourable vote does not mean that I share all and every part of the reasoning followed by the Court in reaching
the same conclusions. Nevertheless, I feel it necessary to state my views only on certain subjects which are important
enough to deserve a separate opinion and on which I think that the Court should have taken a different approach.
I. THE UNITED STATES AGENT'S LETTER OF 18 JANUARY 1985
3. In his letter of 18 January 1985, the Agent of the United States conveyed the position of his Government on the Court's
Judgment on jurisdiction and admissibility, given on 26 November 1984. The letter states in its final part:
‘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.‘
4. I fully agree with the statement of the Court in paragraph 27 that a State party to proceedings before the Court may de-
cide not to participate in them. But I do not think that the Court should pass over in silence a statement whereby a State
reserves its rights in respect of a future decision of the Court.
5. Article 94, paragraph 1, of the United Nations Charter says in a clear and simple way: ‘Each Member of the United
Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.‘
6. No reservation made by a State, at any stage of the proceedings, could derogate from this solemn obligation, freely
entered into, which is, moreover, the cornerstone of the system, centred upon the Court, for the judicial settlement of in-
ternational disputes. The United States, like any other party to the Statute, is bound by the decisions taken by the Court
and there *175 is no right to be reserved but the right to have them complied with by such other parties as they may bind.
II. PROVISO (C) TO THE UNITED STATES DECLARATION OF 1946
7. In a separate opinion to the 1984 Judgment, on this case, concerning the jurisdiction of the Court and the admissibility
of the Application, I tried to explain, in paragraphs 13 to 27, my opposition to applying this part (proviso (c)) of the
United States declaration of 1946.
8. In the present Judgment the Court has developed its arguments on this subject at some length. However, I regret to say
that I have not been convinced by its reasoning and I continue to think that the reservation is not applicable, for the same
arguments as I put forward in 1984.
III. SELF-DEFENCE
9. I have voted in favour of the decision of the Court, appearing in subparagraph (2) to reject the plea of collective self-
defence raised by the United States, but if I reached the same conclusions as the Court, in the matter of the alleged assist-
ance given by Nicaragua to rebels in El Salvador, I did so through a different method, which I wish to summarize here.
10. In paragraph 230 the Court expresses the following:

‘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 the time when the arms flow was at its

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 104
peak, and again assuming the participation of the Nicaraguan Government, that would not constitute such armed at-
tack.‘
And the Court added in paragraph 247:
‘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.‘
11. I fully agree with this statement and others made by the Court in the same sense. It does not mean, of course, that as-
sistance to rebels in another country could not be considered illegal under other rules of international law, such as the ob-
ligations not to intervene in the internal affairs of *176 another State and to refrain in international relations from the
threat or use of force against the territorial integrity or political independence of another State. But here the question to
be decided in regard to the plea of the United States is whether the justification of self-defence in the case of assistance
to rebels is valid or not under customary international law. My reply, just like the one given by the Court, is in the negat-
ive.
12. If, juridically, assistance to rebels cannot, per se, be justified on grounds of self-defence, I do not see why the Court
feels bound to analyse in detail the facts of the case relating to such assistance. Neither do I perceive the need for enter-
ing, in the Judgment, into the questions of the requirements, in the case of collective self-defence, of a request by a State
which regards itself as the victim of an armed attack, or a declaration by that State that it has been attacked or of its sub-
mission of an immediate report on the measure taken in the exercise of this right of selfdefence.
13. From my point of view it would have been sufficient to say, just as the Court does in its conclusions, that even if
there was such assistance and flow of arms, that is not a sufficient excuse for invoking self-defence because, juridically,
the concept of ‘armed attack‘ does not include assistance to rebels.
14. Therefore, I have a different method of approach from that of the Court, even though I reach the same conclusions.
15. Following the logic of my reasoning, I pass no judgment as to what the Court says on such facts as may underlie the
claimed justification of collective self-defence. I share, however, the findings of fact and law of the Court on the trans-
border incursions in the territory of Honduras and Costa Rica.
IV. THE 1956 TREATY OF FRIENDSHIP, COMMERCE AND NAVIGATION
16. I voted in the 1984 Judgment, together with another judge, against accepting the 1956 Treaty of Friendship, Com-
merce and Navigation as a basis for the jurisdiction of the Court to entertain the dispute and I have expressed my reason-
ing in a separate opinion. However, I consider that in regard to the present Judgment I was obliged to vote on the ques-
tion whether the United States has acted in breach of this Treaty. The question of jurisdiction and that of the breach of a
treaty are of a different juridical nature; the Court could be incompetent for lack of consent to go into the merits of a dis-
pute, but that does not mean that the States in the controversy might have not violated a rule of international law. Once
the Court has established its competence, a judge is bound to decide on the merits of the case, even if he was in the
minority on the question of jurisdiction. Otherwise, in the event that a judge had voted against both sources of *177 juris-
diction, as has happened in this case, that judge would have no standing for participating in the merits stage, which
would be an absurd proposition.
17. For these reasons, I participated in the discussions and voted on the question whether the United States had acted in
breach of the 1956 Treaty of Friendship, Commerce and Navigation.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 105
(Signed) J. M. RUDA.
*178 SEPARATE OPINION OF JUDGE ELIAS
I have voted, without enthusiasm, for subparagraphs (2) to (16) of the operative clause, but I consider that subparagraph
(1) of the operative clause is out of place in the present Judgment. It is inappropriate because it is contradictory to the
Judgment already given in 1984, which, from the standpoint of the Court, is difficult to attempt to amend now. It has no
organic or even symbolic relation to the remaining operative subparagraphs. I hesitate to call it a mere concession to ex-
pediency, but find it linguistically colourless and procedurally out of place.
By the Court's Judgment of 26 November 1984 the question of the Vandenberg Reservation was definitely left in abey-
ance, pending any intervention by El Salvador, Honduras or Costa Rica in the current phase of the proceedings, on merits
and reparation; since none of the three countries has sought to intervene, the reservation is of no further relevance.
I cannot accept what appears to me to be the employment by the Court of Article 53 of the Statute to endow itself with
the power to interpret and revise its own previous Judgment on jurisdiction and admissibility, by an extended interpreta-
tion of Articles 60 and 61 of the Statute. Such a power could not be exercised even if the non-appearing Respondent it-
self had requested it at this stage. It is thus even more remarkable that the Court should attempt to invoke such a power
for the benefit of non-parties to the present case (like El Salvador, Honduras and Costa Rica).
**
I do not intend to make general remarks either on the Judgment itself or on Judge Schwebel's dissenting opinion because
I believe that the reader himself will read and judge. I would however like to say a few words on two attacks launched
against me personally in two separate paragraphs, 109 and 115 of Judge Schwebel's dissenting opinion, together with
their accompanying remarks.
As for the reference to the Press Release, I wish to say very briefly as follows:
By its Order of 4 October 1984 the Court after deliberation, decided not to hold a hearing on the Declaration of Interven-
tion of El Salvador filed on 15 August 1984 and that the Declaration was inadmissible inasmuch as it *179 related to the
then current phase of the proceedings. These decisions were taken after consideration by the Court of the Declaration of
El Salvador and of the written observations thereon submitted by Nicaragua and the United States pursuant to Article 83
of the Rules of Court, the time-limit for which had been set at a date, 14 September 1984, prior to the opening of the oral
proceedings on the questions of jurisdiction and admissibility. The opening of those oral proceedings having been fixed
for the afternoon of 8 October 1984, this date was made public in advance, after consultations, in accordance with stand-
ard practice, by means of a press communique issued on 27 September 1984, which indicated also that the Court was
seised of a Declaration of Intervention of El Salvador. There is nothing inherent in the Statute and Rules of Court that
would have prevented the Court, had it so decided on 4 October 1984, from holding a hearing on the Declaration before
or during the oral proceedings on the questions of jurisdiction and admissibility to open on 8 October 1984, or El Sal-
vador from submitting during those proceedings its observations with respect to the subject-matter of the intervention
pursuant to Article 86 of the Rules of Court. Under Article 82 of the Rules of Court, a State which desires to avail itself
of the right of intervention conferred upon it by Article 63 of the Statute shall file its declaration to that effect as soon as
possible and ‘not later than the date fixed for the opening of the oral proceedings‘. It is thus evident that only after such a
date is announced can other States know whether or not a declaration is filed within the time-limits prescribed by the
Rules of Court. It is significant that Judge Oda, who is cited by Judge Schwebel, did vote with the majority of the Court
to reject El Salvador's Declaration of Intervention.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 106
With regard to the interview referred to by Judge Schwebel, he should recall that it took place in the Court on 12 Decem-
ber 1984, after repeated requests by the Associated Press to the First Secretary in charge of information matters, to per-
suade me to grant an interview on the Judgment which we delivered on 26 November 1984, holding that the Court had
jurisdiction to hear the case brought by Nicaragua. The First Secretary was present throughout the question and answer
interview and demanded from the interviewer a promise that he would let us see the transcript from the tape recording
which he had made before any publication. Judge Schwebel's account in his written dissenting opinion was the first that
the First Secretary and I had ever seen of the account narrated in the opinion together with the comments of outsiders,
who are not Members of the Court, also cited by Judge Schwebel. Apart from the slants given to my alleged remarks, I
confirm that the gist of what I am supposed to have said is quite correct and I very much regret the use made of it in a
Member of the *180 Court's dissenting opinion to a Judgment which still confirms that the United States of America was
found wrong by the Court even under a new President, on all the essential points made by Nicaragua against it.
(Signed) T. O. ELIAS.
*181 SEPARATE OPINION OF JUDGE AGO
[Translation]
1. In the separate opinion which I appended to the Judgment of 26 November 1984 on the jurisdiction of the Court and
the admissibility of the Application in the present case, I explained why I had felt able to vote in favour of the finding
that the Court had ‘a jurisdiction in the present case enabling it to proceed to examination of the merits‘, convinced as I
was that sufficient warrant for this finding was to be found in the existence between the Parties, under Article 36, para-
graph 1, of the Statute of the Court, of a valid and indisputable jurisdictional link, one contractually and unchallengeably
established in Article XXIV, paragraph 2, of the bilateral treaty of Friendship, Commerce and Navigation concluded on
21 January 1956. On the other hand, I rejected the majority view of the Court that another jurisdictional link between
Nicaragua and the United States of America existed under Article 36, paragraph 2, of the Statute. Here I had reached my
conclusion – which I feel bound to confirm, given the unshaken constancy of my conviction on the matter – because, to
my mind, Nicaragua's alleged acceptance of the Court's compulsory jurisdiction was not and had never become real. The
intention manifested on the subject in 1937 had at no time materialized in the formal undertaking which alone would
have possessed legal force. It followed that no obligation had yet been accepted or even come into being on the date of
the extinction of the Permanent Court of International Justice, so there was no obligation which could be ‘maintained‘
after that date, since it is impossible to maintain what does not yet exist. And if the obligation itself did not exist, neither
could it have any effects that might conceivably be transferred from the Permanent Court to its successor, the Interna-
tional Court of Justice. In sum, the declaration of acceptance of the Court's compulsory jurisdiction which had been made
by the United States of America on 14 August 1946 was not matched, as it indispensably had to be, by an equally valid
acceptance on the part of Nicaragua; hence no jurisdictional link could be founded on such a basis between the two
States.
2. If the majority of the Court had in 1984 adopted the same position as certain judges, the result in the present, merits
phase of the case would have been that only acts that might be regarded as breaches of obligations under the Treaty of 21
January 1956 could be taken into consideration as acts whereby the United States of America might have incurred inter-
national responsibility towards Nicaragua. However, the situation is otherwise, since the majority of the Court, in the
1984 Judgment, approved and gave *182 pride of place to the idea that a jurisdictional link existed between the Parties

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 107
on the basis of the coincidence of two unilateral declarations accepting the Court's compulsory jurisdiction, both of
which, and no less that of Nicaragua than that of the United States, had in its view been regularly made. Though some-
what reluctantly, I have felt obliged to respect the majority decision of the Court, which is now res judicata, and accord-
ingly to agree to reason in the present merits phase on the basis of the supposition that when proceedings were instituted
two different links of jurisdiction existed between the Parties. Of those two links, the one based upon the Optional Clause
in Article 36, paragraph 2, of the Statute was manifestly of wider scope and was bound to receive the main emphasis.
3. As it happens, my scruples in this connection have to some extent been softened, though not entirely removed, on ac-
count of the recognition by the majority of the Court, in the present phase, of the effect of the restriction placed on the
acceptance of its compulsory jurisdiction through the ‘multilateral treaty reservation‘, also known as the ‘Vandenberg
Reservation‘ from the name of the Senator who successfully presented it for the approval of the United States Senate.
Under that reservation, the United States' acceptance of the Court's compulsory jurisdiction did not extend to:
[FN1]
parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction ‘.
4. In this connection, the Court, in its Judgment of 26 November 1984 on questions of jurisdiction and admissibility, had
declared that the objection advanced by the United States of America with regard to the exclusion from its acceptance of
the Court's jurisdiction under the Optional Clause of ‘disputes arising under a multilateral treaty‘ raised a problem
‘concerning matters of substance relating to the merits of the case‘. This had led the Court to the conclusion that the ob-
jection did not possess an ‘exclusively preliminary‘ character and could not in the circumstances constitute an obstacle to
its entertaining the merits of the case, given that Nicaragua's Application did not solely complain of breaches of multilat-
eral conventions but also relied, quite apart from the bilateral treaty of 1956, on a number of principles of ‘general and
customary international law‘. In this, the merits phase, the Court has accordingly been entirely consistent and proceeded
to examine the question raised by the Respondent in its objection.
*183 5. It is in paragraphs 42 ff. of the present Judgment that the Court has given its ruling on the consequences arising
from the United States' multilateral treaty reservation in the present case. In doing so it has relied in the main on the fol-
lowing two points: (a) the original source of its jurisdiction to pass upon a dispute involving a particular State is always
that State's consent, which implies, inter alia, that any State accepting its compulsory jurisdiction under the Optional
Clause is entirely free to restrict that acceptance in any way it wishes and, more especially, to exclude disputes arising
out of certain categories of treaty; (b) in the instant case, at least one third State, namely El Salvador, had to be con-
sidered as potentially ‘affected‘ by any decision involving the application of certain multilateral treaties including, but
not limited to, the Charter of the United Nations and that of the Organization of American States. The necessary con-
sequence was that the application of those instruments was excluded so far as the decision of this case was concerned.
Thus the Court rightly rejected the idea of setting up against the United States an interpretation of the ‘Vandenberg Re-
servtion‘ which would be manifestly different from the one always advanced by that Party and reduce it to mere redund-
ancy. It can never be sufficiently emphasized that acceptance of the Court's compulsory jurisdiction on the basis of Art-
icle 36, paragraph 2, of its Statute is a sovereign, voluntary act the effects of which are strictly confined to the limits
within which it was conceived and intended. The Court therefore proceeded correctly in holding itself obliged to con-
clude that the jurisdiction conferred upon it by the declaration of acceptance which the United States made in 1946 under
Article 36, paragraph 2, of the Statute did not enable it to entertain the complaints submitted by Nicaragua concerning
the violation of the treaties in question. But at the same time and, in my view, in perfect accord with its premises, it held
that its jurisdiction to pass upon Nicaragua's complaints regarding the violation by the United States of obligations under
rules proceeding from customary international law or the 1956 FCN Treaty remained intact.
6. Given the starting-point of the Court's reasoning, I cannot but find the conclusion it reached entirely correct. I have

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 108
also to acknowledge its concern to uphold the independent existence in customary international law of each of the rules it
has applied in the case. Even so, I am bound to express serious reservations with regard to the seeming facility with
which the Court – while expressly denying that all the customary rules are identical in content to the rules in the treaties
(para. 175) – has nevertheless concluded in respect of certain key matters that there is a virtual identity of content as
between customary international law and the law enshrined in certain major multilateral treaties concluded on a universal
or regional plane. I am ready to agree with the Court that, so far as the basic rule prohibiting use of force is concerned
(para. 188), and even the rule requiring respect for the territorial sovereignty of other States (para. 212), there may be a
close correspondence between unwritten general international law and the written law embodied in the Charter. But I re-
main *184 unconvinced that, for example, certain restrictive requirements on which the Charter makes resort to self-
defence conditional are also to be found in customary international law. And I am still inclined to doubt whether the cus-
[FN2]
tomary international law that exists not only at universal but also at regional level in the Americas has already en-
dorsed all the achievements of treaty law where the prohibition of intervention is concerned. I am moreover most reluct-
ant to be persuaded that any broad identity of content exists between the Geneva Conventions and certain ‘fundamental
general principles of humanitarian law‘, which, according to the Court, were pre-existent in customary law, to which the
Conventions ‘merely give expression‘ (para. 220) or of which they are at most ‘in some respects a development‘ (para.
218). Fortunately, after pointing out that the Applicant has not relied on the four Geneva Conventions of 12 August 1949,
the Court has shown caution in regard to the consequences of applying this idea, which in itself is debatable.
7. There are, similarly, doubts which I feel bound to express regarding the idea which occasionally surfaces in the Judg-
ment (paras. 191, 192, 202 and 203) that the acceptance of certain resolutions or declarations drawn up in the framework
of the United Nations or the Organization of American States, as well as in another context, can be seen as proof con-
clusive of the existence among the States concerned of a concordant opinio juris possessing all the force of a rule of cus-
tomary international law. I shall confine myself here to a mere placing of these impressions on record, while emphasizing
that such reservations as I might express on the points concerned do not carry the implication that I should disagree with
the basic findings of the Judgment.
II
8. Coming now to those aspects of the present case which more specifically and exclusively concern the merits, I would
first point out that the findings reached by the Court in the present Judgment coincide in the main with those which, from
another angle, it had already adumbrated in its Order of 10 May 1984 on the request for provisional measures filed by
Nicaragua on 9 April of that year. Needless to say, the present analysis is developed at far greater length and the reason-
ing presented in order to underpin the findings is far more substantial. But the fact remains that the acts which the Court
today considers should be imputed to the United States of America are the same as the decision on provisional measures
had succinctly mentioned, while, more particularly, the breaches of international*185 law which the Court now holds
those acts to have constituted are practically the same as already enumerated under B (1) and (2) in paragraph 41 of the
Order of 10 May 1984. The obligations now declared to have been violated are virtually the same as those found to exist
on that previous occasion: the obligations not to intervene in the internal affairs of another State, to refrain from any re-
course to the threat or use of force against the territorial integrity or political independence of another State, to accord its
territorial sovereignty full respect and not to disrupt or endanger its maritime commerce. At the time, I voted knowingly
and conscientiously in favour of the decisions adopted by the Court on these various points, and at the present juncture I
see no reason to do otherwise.
9. Nevertheless, I cannot but be struck by the presence in the Judgment now rendered – with of course my own participa-
tion – of certain aspects in the appraisal of the factual and legal situation which are in my view mutually inconsistent and
appear to call for some rectification.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 109
10. The first concerns the perspective in which the Judgment appears to place and envisage the case on which the Court
was required to give its decision. To my mind, it is impossible to grasp the overall, meaningful reality of this case
without keeping in view the fact that the soil in which the present dispute between Nicaragua and the United States ger-
minated, and from which it sprang, was compounded of a situation of civil strife, of conflict within a State. Today also,
this situation characterizes the present case to a greater degree than appears to have been realized.
11. Not, of course, that the Judgment completely ignores this situation. Where the Court expresses its position with re-
gard to the breaches of the rules of humanitarian law committed in the instant case, it does indeed point out (in para. 219)
that:
‘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 gov-
erned 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.‘
This observation is certainly correct. I readily acknowledge, moreover, that in its description of the various forms of aid
and assistance provided by the United States to the contra rebels, the Court has deliberately avoided making use of cer-
tain expressions, proposed by the Applicant, which would have given rise to dangerous ambiguity, precisely in connec-
tion with the question as to the international nature of the conflict between those rebels and the forces of the Sandinist
government. Thus the Court (in paras. 113 and 114) has refused to go along with the Applicant's assertions that the con-
tra forces are mere bands of ‘mercenaries‘ recruited by the *186 United States of America for its own ends, or in other
words that they are a kind of foreign legion constituting an auxiliary body in the United States armed forces. I must also
add that the very fact of construing the multifarious forms of assistance to the contras as a kind of unlawful intervention
by one State in the internal conflicts of another provides further evidence that the Court has seen this essential aspect for
what it is.
12. On the other hand, in the Court's manner of presenting the two sides in contention and, above all, the origins and
causes of the internal conflict that broke out in Nicaragua, it seems to me that the Judgment fails to accord sufficient
weight to the important changes that took place in that country during the months immediately following the fall of the
Somoza government. In saying this, it is not my intention to question the Judgment's interpretation (in paras. 260-262) of
the points included in the ‘Plan to secure peace‘ that the coalescent anti-Somoza elements had drawn up during the final
stage of the liberation struggle against the dictatorship and that the Junta of the Government of National Reconstruction
of Nicaragua had communicated to the Secretary-General of the Organization of American States in response to the res-
olution of the XVIIth Meeting of Consultation of the Ministers for Foreign Affairs of that Organization. Neither am I
here concerned to deny the finding that the communication of this plan was merely a ‘political promise‘ devoid of all
binding legal force, even though I still have some doubts in that respect; for I cannot understand how the Organization of
American States member governments could have agreed to adopt such an exceptional measure as the withdrawal of re-
cognition from a government which, however dictatorial and hateful, was undeniably in charge and, from that angle,
‘legitimate‘ unless they possessed a solid guarantee that it would be replaced by a government offering the precise char-
acteristics defined in the peace plan, one of a kind which the members of the Organization, with the exception of the So-
moza government itself, all hoped to see materialize.
13. What I wish here to stress is simply the fact that at the time when the government which the Judgment itself, at the
rare points where it mentions it, styles a ‘democratic coalition‘ (para. 18) ‘the democratic coalition government‘ (para.
19) or ‘the Government of National Reconstruction‘ (para. 167) took office in Managua it corresponded in its composi-
tion, however provisional that may have been, to the various points in the ‘Plan to secure peace‘. It was only later that
matters changed. As I have found confirmed by many pieces of testimony, and inter alia by accounts of a very recent on-
[FN3]
the-spot inquiry in Nicaragua , the various political trends whose adherents had taken part in the overthrow of the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 110
dictatorship were indeed represented in the government initially resulting from the revolutionary struggle. This govern-
ment clearly stated its intention of setting up a stable regime characterized by democratic pluralism, political, economic
*187 and trade-union freedom, and non-alignment in international relations. Only later, and only after a sudden change,
did a government come to power which was exclusively Sandinist in complexion. That is to say, the new government
which replaced the first towards the end of 1979 was practically uniform in its make-up and followed a very different
line from its predecessor in regard to domestic policy, the organization of industrial and agricultural production, trade-
union policy, the structure of the armed forces, foreign policy and international relations. By reaction, this development
led to the formation of an opposition including elements from some very disparate backgrounds, an opposition which
gradually gained ground despite being subjected to close surveillance and measures of restriction. In this claimate, the
elections organized by the government were boycotted by the political parties which denied their democratic regularity;
relations between the civil authorities and the church worsened; there was a growing split between the traditional trade
unions and those owing allegiance to the government; the conditions of the ethnic minorities deteriorated. On account of
the combination of these factors, various groups belonging to the trends opposed to the new regime left the country, feel-
ing driven to seek refuge in exile. As it happens, once in exile, the new refugees felt reluctantly impelled to seek the col-
laboration of the apparently sparse remnants of the Somoza guard with a view to setting up a coalition of rebel forces
capable of fighting in order to provoke a development of the situation such as might enable them to return home in new
circumstances. But this turn of events should not be allowed to obscure the fact that underlying the civil conflict in ques-
tion there was the determining factor of a split between the various components of the coalition that had opposed the So-
moza dictatorship and brought about its downfall. Neither must it be allowed to obscure the fact that the receipt by these
refugees of the massive and multifarious aid and assistance that was vital for their action has not turned them into any-
thing other than they were, has not erased their identity as part of the Nicaraguan people or rendered their fight against
the government of their country anything other than a civil struggle. In my opinion, the Court could and should in its
Judgment have delved more deeply into this aspect for the sake of a better understanding of the various facets of this
case, though in saying this I have no intention of seeking any substantial modifications in regard to the findings reached
on this subject.
III
14. The other aspect to which I would like briefly to refer concerns the question whether the various categories of acts
the subject of the Applicant's allegations are or are not imputable to the Respondent qua acts giving rise to international
responsibility.
15. Here I consider that the findings of the Judgment, at least where *188 certain acts are concerned, merit unhesitating
concurrence. Among the accumulation of acts complained of by Nicaragua, the Court was entirely right in returning an
affirmative answer to the question of the imputability to the Respondent of those which must undeniably be construed as
the conduct of United States agents or organs in the proper sense of those terms, namely acts performed by persons or
groups directly belonging to the State apparatus of that country and acting as such. The Court has done well to add that
where this conduct took place in the presence or with the participation of persons or groups that cannot be so described
(in the case in point, contras) the presence or participation of the latter could not change this finding in the slightest. This
is in conformity with the provisions of Article 5 (Attribution to the State of the conduct of its organs) of the draft articles
adopted on the subject by the International Law Commission. The Court was also right to consider as acts of the United
States of America the conduct of persons or groups that, without strictly being agents or organs of that State, belong nev-
ertheless to public entities empowered within its domestic legal order to exercise certain elements of the government au-
thority. Here I note conformity with the provisions of Article 7 (Attribution to the State of the conduct of other entities
empowered to exercise elements of the government authority) of the International Law Commission's draft. The first of
the two hypotheses here mentioned applied in particular to conduct by members of the government administration or

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 111
armed forces of the United States, and the second to activities of members of the CIA, or of UCLAs or of other bodies of
the same kind. Although the Court has not outlined, as it would have been interesting to do, any theoretical justification
of its findings with regard to these hypotheses, I entirely share the view that they are well founded.
16. On the other hand, the negative answer returned by the Court to the Applicant's suggestion that the misdeeds commit-
ted by some members of the contra forces should be considered as acts imputable to the United States of America is like-
[FN4]
wise in conformity with the provisions of the International Law Commission's draft . It would indeed be inconsist-
ent with the principles governing the question to regard members of the contra forces as persons or groups acting in the
name and on behalf of the United States of America. Only in cases where certain members of those forces happened to
have been specifically charged by United States authorities to commit a particular act, or carry out a particular task of
some kind on behalf of the United States, would it be possible so to regard them. Only in such instances does internation-
al law recognize, as a rare exception to the rule, that the conduct of persons or groups which are neither agents nor or-
gans of a State, nor members of its apparatus even in the broadest *189 acceptation of that term, may be held to be acts
of that State. The Judgment, accordingly, takes a correct view when, referring in particular to the atrocities, acts of viol-
ence or terrorism and other inhuman actions that Nicaragua alleges to have been committed by the contras against the
persons and property of civilian populations, it holds that the perpetrators of these misdeeds may not be considered as
having been specifically charged by United States authorities to commit them unless, in certain concrete cases, unchal-
lengeable proof to the contrary has been supplied.
17. Where this last point is concerned, therefore, I naturally agree in principle with what the Judgment observes in para-
graph 116, namely that the Court, within the framework of the present proceedings, did not have to concern itself with
any anti-humanitarian misdeeds as the contras may have committed which Nicaragua wrongly sees as violations, attribut-
able to the United States of America, of the principles of humanitarian law, but solely with unlawful acts for which the
United States may be responsible ‘in connection with the activities of the contras‘. One or two hesitations or linguistic
improprieties that can be noted in the drafting of certain passages do nothing to impair the essential correctness of that
observation. More especially, I cannot but agree with the fundamental recognition that the misdeeds committed by the
contras in the course of their military or paramilitary operations in Nicaragua are not imputable to the United States of
America (paras. 115, 116 and 278).
18. However, I feel obliged to point out that the Judgment exhibits some hesitancy, a few at least apparent contradictions
[FN5]
and a certain paucity of *190 legal reasoning in seeking to substantiate the position the Court takes on the points
in question. I am above all inclined to regret that the Judgment does not refer explicitly to the precedent provided by the
Judgment of 24 May 1980 in the case concerning United States Diplomatic and Consular Staff in Tehran. The Court
seems to me to have overlooked the fact that, at that time, it was faced with a situation in many ways similar to the
present one. Inter alia, it had to decide whether and, if so, to what extent the acts committed in the initial phase of the af-
fair, namely the armed attack perpetrated on 4 November 1979 by Iranian ‘militants‘ against the Embassy of the United
States, the invasion of its premises and the taking of the persons there as hostages, the seizure of the Embassy's property
and archives, all those ‘active‘ misdeeds, in other words, could or could not be imputed to the Iranian State. And it
reached a negative conclusion on this subject, because the ‘militants‘ in question had no official status of any kind as
agents or organs of the State and there was nothing to prove that they had in fact acted in the name and on behalf of the
Iranian authorities. The Court explicitly noted that even the congratulatory or approving statements made immediately
following the misdeeds in question could not alter the fact that these acts committed by the ‘militants‘ could not, at that
time, be attributed to the State, even if their authors were the darlings of the supreme authorities of the country. The only
thing the Court considered could be attributed to the State, in this first phase of events, was the ‘negative‘ fact of having
neglected to take appropriate steps for the protection of the premises and staff, so as to ward off attacks which were only
to be expected on the part of over-excited hostile elements, or the equally ‘negative‘ fact that, once the attack had been

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 112
perpetrated, the official authorities failed to respond to the incessant appeals for help addressed to them and did not inter-
vene to free the persons and premises in question.
19. In the present case the Court has in effect reached similar conclusions as to the non-imputability – to the United
States of America this time – of the misdeeds perpetrated by the insurgents against the Sandinist government in the con-
text of the hostilities pursued by them in Nicaraguan territory, and the imputability to the United States solely of such
conduct as can be duly proved to be that of organs of the United States ‘in connection with‘ these misdeeds of the con-
tras. In sum, this is the second time in a very brief period that the Court has had to deal with questions of international re-
sponsibility and, more specifically, situations in which the principles to be applied have been those concerning problems
of imputability, which is one of the most delicate aspects of the entire theory of responsibility. I can only regret that the
Court has not seized the opportunity to emphasize, by appropriate references,a confirmation of the position it took before
and of the theoretical reasoning developed in support, so as to underline the continuity and solidity of the jurisprudence.
***
*191 There are other points in the Judgment on which I could comment and in regard to which, perhaps, I could express
[FN4]
some partial disagreement . However, I prefer to confine myself here to these few observations and points that I feel
it has been necessary to put forward in order to make known my views regarding some selected aspects of fact and law
which to my mind were the most important. Here and there the reader will note some reservations which are not merely
formal in regard to the holdings set forth in certain chapters or paragraphs of the Judgment and its attendant reasoning.
Yet, in the last resort, there are no disagreements of such an order as to impel me to forsake the general concurrence that
I believe in all objectivity I may accord the Judgment delivered today.
(Signed) Roberto AGO.
*192 SEPARATE OPINION OF JUDGE SETTE-CAMARA
Since I have voted against subparagraph (1) of paragraph 292 of the Judgment, I feel myself obliged to append this separ-
ate opinion stating my reasons.
During the previous proceedings relating to the jurisdiction and admissibility of the Nicaraguan Application of 9 April
1984, the multilateral treaty reservation attached to the 26 August 1946 United States Declaration of Acceptance of the
Court's jurisdiction under Article 36, paragraph 2, of the Statute was subjected to thorough and detailed discussion, lead-
ing to the decision of the Court in the Judgment of 26 November 1984. The two Parties in their arguments examined the
reservation in all its aspects, and weighed all possible interpretations of its rather nebulous wording and the con-
sequences of its application.
It should be recalled that the reservation is contained in proviso (c) to the Declaration, which excludes from the operation
of the clause
parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction‘ (I.C.J.
Yearbook 1984-1985, p. 100).
Five member States have appended a similar reservation to their Declarations of Acceptance, namely, El Salvador, India,
Malta, Pakistan and the Philippines. However, only the reservations of Pakistan and Malta include the wording appearing
in the United States reservation ‘all parties to the treaty affected by the decision‘. The reservations of El Salvador, India
and the Philippines exclude disputes arising from the interpretation or application of a multilateral treaty unless all the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 113
parties to the treaty are also parties in the case before the Court (I.C.J. Yearbook 1984-1985, pp. 75, 78 and 92 respect-
ively). Of course the latter version of the reservation is broader in scope, because, if the multilateral treaty reservation
were to be applied as it appears in the Indian, Philippine and Salvadorian formulations, all the States parties to a multilat-
eral convention would have to appear before the Court together with the original parties in the case. It is difficult to see
how the reservation could apply to universal treaties such as the Charter of the United Nations, or even treaties of a re-
gional ambit, such as the Charter of the Organization of American States – both in cause in the Nicaraguan Application
–because that would amount to bringing before the Court the entire membership of the United Nations, and the regional
organization itself.
*193 The multilateral treaty reservation has been widely criticized by publicists ever since the 1946 United States De-
claration was deposited with the Secretary-General of the United Nations. Indeed several writers, including some emin-
ent American scholars, have considered it ambiguous, redundant and superfluous. Counsel for the United States recog-
nized the doubts connected with the ambiguity of its formulation (hearing of 15 October 1984, afternoon):
‘As the United States indicated in its Counter-Memorial, scholars discussing the reservation at the time of its inclu-
sion in the declaration disagreed about whether the reservation required the presence before the Court of all treaty
parties, or only of those treaty parties that would be affected by the Court's decision.‘
Moreover, at that time, there were also doubts as to the unclear wording of the proviso, especially as to whether it re-
ferred to ‘the treaty affected‘ or to ‘all parties affected‘.
In the present case the United States, while participating in its previous stages, has had the opportunity to clarify its con-
struction of the meaning of the reservation. The United States Counter-Memorial contended in paragraph 252 (p. 105):
‘The Court may, therefore, exercise jurisdiction over Nicaragua's claims consistent with the multilateral treaty reser-
vation only if all treaty parties affected by a prospective decision of the Court are also parties to the case.‘
And in paragraph 253 (p. 105) it spelled out the ‘specific concerns‘ behind the reservation:
‘The multilateral treaty reservation reflects three specific concerns: (1) the United States does not wish to have its
legal rights and obligations under multilateral treaties adjudicated with respect to a multilateral dispute unless the
rights and obligations of all the treaty parties involved in that dispute will also be adjudicated; (2) adjudication of bi-
lateral aspects of a multilateral dispute is potentially unjust in so far as absent States may have sole possession of
facts and documents directly relevant to the rights of the parties to the adjudication inter se; and (3) adjudication of
bilateral aspects of a multilateral dispute will inevitably affect the legal rights and practical interests of the absent
States.‘
*194 This threefold description of the reasons inspiring the reservation is not altogether convincing. As to the first point,
it would indeed be extraordinary if a State making a declaration of acceptance of the Court's jurisdiction were to append
to it reservations to protect the rights and interests of third States.
In his separate opinion to the Judgment of 26 November 1984 Judge Ruda rightly observes:
‘it does not seem logical that a State submitting a declaration accepting the compulsory jurisdiction of the Court,
but excluding certain matters affecting its own interests from the jurisdiction, should act on behalf of third
States‘ (I.C.J. Reports 1984, p. 456, para. 22).
The second point is equally unpersuasive. The ‘sole possession of facts and documents‘ by a third State is outside the
competence of the Court to appraise. And this specific knowledge has nothing to do with participation in a multilateral
treaty. It is possible that a State which is not a party to the treaty might possess such ‘facts and documents‘. Thirdly, it is
certainly not true that ‘adjudication of bilateral aspects of a multilateral dispute will inevitably affect the legal rights and

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 114
practical interests of the absent States‘ (emphasis added). It might, or might not, affect them. In the November 1984
Judgment the Court itself gave a specific example of a possible situation in which there would be no third State affected
by the decision:
‘By way of example we may take the hypothesis that if the Court were to decide to reject the Application of
Nicaragua on the facts, there would be no third State's claim to be affected.‘ (I.C.J. Reports 1984, p. 425, para. 75.)
In the Judgment of 26 November 1984 the Court dealt extensively with the multilateral treaty reservation in paragraphs
72 to 76 (I.C.J. Reports 1984, pp. 424-426). Having recognized the obscurity of the wording of the proviso, and referred
to the difficulties of interpretation which can be traced back to its drafting, and having weighed up the meaning of similar
reservations on the part of other States, the Court found, in paragraph 73, that in no way could the reservation bar adju-
dication, because Nicaragua's Application relied not only on conventional law but also on violation of a number of prin-
ciples of customary and general international law, such as the non-use of force, non-intervention, respect for the inde-
pendence and territorial integrity of States and freedom of navigation. These principles are valid and binding in them-
selves, even if they have been enshrined in the provisions of multilateral treaties. The Court observes that the States to
which the argument of the United States refers, the neighbours of Nicaragua, namely, Costa Rica, Honduras and El Sal-
vador, have all made declarations of acceptance of the Court's jurisdiction and could at any time *195 institute proceed-
ings against Nicaragua if they felt their rights and interests to be in jeopardy. They could also resort to the incidental pro-
cedure of intervention under Article 62 or 63 of the Statute (I.C.J. Reports 1984, p. 425). Indeed, when considering the
Declaration of Intervention filed by El Salvador on 15 August 1984 – which was rejected as untimely, because of the fact
that the Court was entertaining the jurisdictional phase of the proceedings –, the Court did preserve the rights of El Sal-
vador to intervene on the merits. But El Salvador did not use these rights. Nor did Honduras and Costa Rica, the only
States that could possibly be affected by a decision of the Court in the current case.
The 1984 Judgment emphasized in paragraph 75 that: ‘it is only when the general lines of the judgment to be given be-
come clear that the States 'affected’ could be identified‘ (I.C.J. Reports 1984, p. 425).
Therefore the question whether other States are affected by the Judgment could only be finally settled during the merits
phase of the Judgment. That is why the Court, considering that the former procedure of joinder of preliminary objections
to the merits has been done away with as from the 1972 revision of the Rules of Court, decided to resort to Article 79,
paragraph 7, of the present Rules. The Rule was used for the first time, and the Court found that
‘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 Applica-
tion of 9 April 1984‘ (I.C.J. Reports 1984, pp. 425-426, para. 76).
The decision of the Court to apply Rule 79, paragraph 7, I submit, is sound and logical. It is only when the general lines
of the Judgment to be given become clear that the States ‘affected‘ can be identified, if they exist at all. It is a curious
situation: the finding as to whether there are third States parties to the multilateral treaties in question ‘affected‘ by the
decision, and which they are, can be established only ex post facto. At the same time the reservation, although not having
an exclusive preliminary character, remains a preliminary objection to jurisdiction, at least in so far as one of the sources
of the law to be applied will be the multilateral treaties invoked by Nicaragua in its Application of 9 April 1984.
In these circumstances, the Court feels itself under the obligation to ascertain whether its jurisdiction is limited by virtue
of the reservation in question (para. 47 of the present Judgment) and does so in a lengthy and exhaustive manner in para-
graphs 47 to 56 of the Judgment.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 115
*196 It should be noted that this is a sui generis procedural situation, because although the jurisdictional phase of the
case has been closed with the Judgment of 26 November 1984, one question of a preliminary character (albeit not
‘exclusively‘ so) was left pending, and the decision on that question should determine the law applicable and hence the
whole structure of the Judgment.
The Court starts its examination of the problem by restricting the field to which the reservation could be applied, in rela-
tion to both the multilateral treaties involved and the States which might potentially be affected. Since Nicaragua has re-
cognized that the dut es and obligations arising from 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 Febru-
ary 1928 have been subsumed by the Charter of the Organization of American States, the Court considers
‘that it will be sufficient to examine the position under the two Charters [the Charter of the United Nations and
the Charter of the Organization of American States], leaving aside the possibility that the dispute might be re-
garded as 'arising’ under either or both of the other two conventions‘ (para. 47 of the Judgment).
On the other hand, in spite of the fact that the United States, in the jurisdictional proceedings, had listed Costa Rica,
Honduras and El Salvador as States that could be ‘affected‘, the Court confines its consideration to El Salvador, because:
‘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.‘ (Para. 48.)
I have no objection to the criteria chosen by the Court to restrict the area of application of the multilateral treaty reserva-
tion. In some ways it simplifies the problem, although it is undeniable that Honduras – from whose territory the contras
operate – is as involved in the dispute as El Salvador, to say the least. But the crux of the question is that the whole of the
United States argument rests on the use of the right of collective self-defence. El Salvador, in its Declaration of Interven-
tion of 15 August 1984, told the Court that it considered itself the victim of an armed attack by Nicaragua, and that it had
asked the United States to exercise on its behalf the right of collective self-defence.
In paragraph 292, subparagraph (2), the Court

‘Rejects the justification of collective self-defence maintained by the United States of America in connection with
the military and *197 paramilitary activities in and against Nicaragua the subject of this case.‘
The justification of collective self-defence, belatedly invoked by the United States during the proceedings on jurisdiction
and admissibility in 1984, if valid, should retroact at least to December 1981 when the abovementioned activities actu-
ally began. Obviously the rejection of the Court covers equally the same period. Therefore, collective self-defence never
justified such activities and the decision of the Court in no way changes the nature and character of the acts of the United
States. They were not justified by collective self-defence and they continue not to be so. Hence, if there is no change in
the actual situation, I do not see how El Salvador can claim to be ‘affected‘ by the decision of the Court. In its argument
Nicaragua never placed in issue the right of El Salvador to receive from the United States all kind of assistance, military
or otherwise (Memorial of Nicaragua, p. 193, para. 371). Therefore, El Salvador's rights in this respect cannot be affected
by a decision of the Court in favour of Nicaragua. The decision of the Court in paragraph 292, subparagraphs (3), (4),
(5), (6), (7), (8), (9), (10) and (11), I submit, could in no way affect the rights or obligations of El Salvador. The same
can be said of the provision in subparagraph (12), calling on the United States to cease and desist immediately from the
acts in question. El Salvador preserves its rights of receiving full support from the United States for its defence. But it
can hardly be argued that El Salvador can claim a right to the continuance of direct or indirect military or paramilitary
actions of the United States against Nicaragua, which are unrelated in any way to the territory of El Salvador. As for sub-
paragraphs (13) and (14) – obligation in respect of reparation to be paid by the United States –, (15) – form and amount
of reparation, to be settled by the Court – and (16) – calling on the Parties to settle the dispute by peaceful means –, they

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 116
have nothing to do with El Salvador. Therefore the decision of the Court as it stands in the operative part of the Judgment
could in no way ‘affect‘ El Salvador such as to warrant application of the multilateral treaty reservation. In this sense I
do not concur with paragraph 51 of the reasoning. Nor do I agree with the argument contained in paragraph 53. The dis-
tinction between ‘adversely‘ affecting and otherwise, is irrelevant and beside the point. Nothing in the operative clause of
the Judgment could, I submit, ‘affect‘ the rights or obligations of El Salvador either ‘adversely‘ or ‘favourably‘.
Likewise, I disagree with the conclusion in paragraph 56 that the Court is debarred from applying the Charter of the
United Nations, as a multilateral treaty.
Paragraph 55 of the Judgment discusses the same problem of the application of the multilateral treaty reservation in rela-
tion to the Charter of the Organization of American States, and especially in regard to Articles 18 *198 and 20 dealing
with non-intervention and the non-use of force. The Court concludes that it must regard itself as without competence to
deal with either of the two claims of breach of the OAS Charter. As to the alleged violation of Article 18 of the OAS
Charter by the United States intervention in the internal or external affairs of Nicaragua, a subject disposed of by sub-
paragraph (3) of the operative part, I fail to see by what stretch of imagination such a decision could be said to affect El
Salvador.
The so-called Vandenberg Amendment applies to disputes under multilateral treaties which are also multilateral disputes.
The current case is between the Applicant – Nicaragua – and the Respondent – the United States of America. Any other
State which has any reason to consider that it might be affected by a Judgment of the Court, and which has jurisdictional
links with the Parties in the case, and with the Applicant in particular, is free to initiate proceedings of its own or to inter-
vene under Articles 62 and 63 of the Statute. The only relevance of the multilateral treaty reservation in the merits phase
of the proceedings is, I submit, that the Court cannot ignore the problem of third States parties to multilateral treaties
which might be affected by the Judgment, and should deal with it in the proper terms, namely that they are free to come
before the Court to defend their rights and interests if they so desire.
Of course the Court cannot ignore the existence of a certain generalized conflict in the Central American area. Judge
Ruda, in his separate opinion appended to the November 1984 Judgment, dealt with it in these words:
‘It is true that there is a complex and generalized conflict among Central American countries, but not the whole con-
flict, with all its economic, social, political and security aspects, is submitted to the Court, only the claims of
Nicaragua against the United States. Nicaragua has not presented any claims against Honduras, El Salvador and
Costa Rica.‘ (I.C.J. Reports 1984, p. 457, para. 24.)
We should abide by the categoric provision of Article 59 of the Statute, which confines the binding force of the res ju-
dicata to the parties in the case, and consequently bear in mind the fact that the expansion of the effects of the Judgment,
so as to affect a third party, constitutes a departure from the general rule, and, like any exception, must therefore be foun-
ded in indisputable evidence.
For all these reasons I regret that the Court decided for the application of the multilateral treaty reservation, thereby pre-
cluding recourse to the Charter of the United Nations and the Charter of the Organization of American States as sources
of the law violated by the Respondent.
I recognize that States which voluntarily deposit declarations of acceptance of the jurisdiction of the Court, pursuant to
Article 36, paragraph 2, of the Statute, are free to append to the declaration whatever reservations *199 they deem neces-
sary. But at the same time, the Court is free, and indeed bound, to interpret declarations and appended reservations, as it
has done on many occasions.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 117
I submit that the law applied by the Judgment would be clearer and more precise if we resorted to the specific provisions
in issue, and that there is nothing to prevent us from doing so.
The late regretted Judge Baxter has maintained the superiority of treaties over other sources as evidence of law in very
cogent terms:
‘The most telling argument for giving the treaty that effect is that it is superior to all other forms of evidence of the
law. In the first place, the treaty is clear evidence of the will of States, free of the ambiguities and inconsistencies
characteristic of the patchwork of evidence of State practice that is normally employed in proving the state of inter-
national law.‘
And further:
‘As one looks at the present state of international law and attempts to see into the future, it should be quite clear that
treaty law will increasingly gain paramountcy over customary international law.‘ (R. R. Baxter, ‘Treaties and Cus-
tom‘, Collected Courses of the Hague Academy of International Law, Vol. 129 (1970-I), pp. 36 and 101.)
It is for the reasons set out above that I have no choice but to vote against subparagraph (1) of paragraph 292 of the Judg-
ment. But I fully concur with the rest of the Judgment, as I firmly believe that the non-use of force as well as non-
intervention – the latter as a corollary of equality of States and self-determination – are not only cardinal principles of
customary international law but could in addition be recognized as peremptory rules of customary international law
which impose obligations on all States.
With regard to the non-use of force, the International Law Commission in its commentaries on the final articles on the
Law of Treaties said:
‘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‘ (International Law Commission Yearbook,
1966, Vol. II, p. 247).
As far as non-intervention is concerned, in spite of the uncertainties which still prevail in the matter of identifying norms
of jus cogens, I submit that the prohibition of intervention would certainly qualify as such, if the test of Article 53 of the
Vienna Convention on the Law of Treaties is applied. A treaty containing provisions by which States agree to intervene,
directly or indirectly, in the internal or external affairs of any other State *200 would certainly fall within the purview of
Article 53, and should consequently be considered void as conflicting with a peremptory norm of general international
law.
(Signed) Jose SETTE-CAMARA.
*201 SEPARATE OPINION OF JUDGE NI
I have voted in favour of all the subparagraphs of the dispositif except one. But it occurs to me that some parts of the dis-
positif are so worded and formulated that, quite inevitably, a simple affirmative or negative vote cannot adequately re-
flect the trend of my thoughts on the questions under consideration. I therefore feel obliged to submit the present separate
opinion for the purpose of stating the position I take.
My primary concern is with respect to the ‘multilateral treaty reservation‘, sometimes referred to as the ‘Vandenberg
Amendment‘. This question might at first sight be deemed no longer important inasmuch as the jurisdictional phase could
be considered already over and the Court is in any event competent to deal with the case on the basis of customary inter-
national law as well as the 1956 Treaty of Friendship, Commerce and Navigation between Nicaragua and the United
States.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 118
But a closer examination of the pleadings in the previous phase and the Judgment of 26 November 1984 will reveal the
fact that there had been left behind at that time some ‘unfinished business‘ which must be considered relegated to the
present phase of the proceedings.
It is to be recalled that the Court was then confronted with the United States contention that in accordance with proviso
(c) to its declaration accepting compulsory jurisdiction of the International Court of Justice, such acceptance shall not ex-
tend to
parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction‘.
The multilateral treaties relied on by the Application of Nicaragua are the Charter of the United Nations, the Charter of
the Organization of American States, the 1933 Montevideo Convention on Rights and Duties of States and the 1928
Havana Convention concerning the Duties and Rights of States in the Event of Civil Strife. The threshold question during
the jurisdictional phase of the proceedings was whether the above multilateral treaty reservation constituted a bar to
Nicaragua's Application. To support its contention challenging the jurisdiction of the Court, the United States named
three Central American States, i.e., El Salvador, Honduras and Costa Rica, as the States parties to the four multilateral
treaties *202 mentioned above which would be affected by the adjudication of the claims submitted to the Court.
Whether or not these Central American States would be affected by the decision of the Court was a matter difficult to de-
cide at the time of the preliminary proceedings when the merits of the case were not being considered. Before the revi-
sion of the Rules of Court in 1972, decision on a preliminary objection, such as the present one on jurisdiction, could
have been joined to the decision on the merits of the case. This cannot be done in the present instance. The Court there-
fore stated in paragraph 75 of its 1984 Judgment that: ‘As for the Court, it is only when the general lines of the judgment
to be given become clear that the States 'affected’ could be identified.‘ The Court concluded thereupon in paragraph 76
that:
‘the Court has no choice but to avail itself of Article 79, paragraph 7, of the present Rules of Court, and declare
that the objection based on the multilateral treaty 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 Ap-
plication of 9 April 1984‘ (I.C.J. Reports 1984, pp. 425-426).
In retrospect, the Court could, in accordance with Article 79, paragraph 7, of the Rules of Court, have ruled on this pre-
liminary objection in one of the three ways provided therein. It could have upheld the objection to its jurisdiction on the
ground that, by the wording of the multilateral treaty reservation, i.e., proviso (c) of the United States declaration, the
mere possibility of any of the other Central American States being affected by the decision, in one way or the other, was
sufficient to defeat Nicaragua's claim of jurisdiction, in so far as allegations of breaches of treaty obligations were con-
cerned. Alternatively, the Court could have rejected the preliminary objection on the ground that any decision to be given
by the Court would not affect any of the Central American States and, moreover, according to Article 59 of the Statute,
such decision would have no binding force except between the parties and in respect of that particular case, and therefore
no third party would be affected thereby. But the Court took the cautious step of postponing a definitive decision on the
question and preferred to leave it in abeyance for later consideration. Of course the circumstances of the case provided
the Court with the possibility of making such a choice, because Nicaragua's claims did not rely solely on the multilateral
treaties but also on customary international law and the bilateral Treaty of 1956, so that the Court was not left to the
hasty choice of either throwing out the case at its very inception or accepting the jurisdiction over the treaty-based claims
of Nicaragua not without a tinge of precipitation or prejudging.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 119
*203 Now the case has reached the stage of considering the merits. Should the Court re-examine the question of multilat-
eral treaty reservation? I would prefer to say that the Court should continue to examine the question in order to arrive at a
more definitive decision with respect to jurisdiction and also, in consequence of going into the merits of the case, with
respect to the question of the applicable law. The United States raised the multilateral treaty reservation as a plea in bar
to the Application of Nicaragua. This plea, once admitted, will (1) exclude the Court from exercising jurisdiction in so
far as the claims made by Nicaragua are based on the multilateral treaties in question; and (2) preclude, if jurisdiction at-
taches on other grounds so that the case is still in the Court for adjudication on the merits, the application of rules of law
provided in or derived from such multilateral treaties.
The first point above referred to is quite obvious. The second is relevant only in cases, of which the present case is one,
where the Court remains seised with jurisdiction to entertain the proceedings on grounds other than the multilateral treaty
or treaties in question. Here a problem of some novelty has taken shape: whether, in a case such as the present one,
which is alleged to have arisen under, or is based upon, a multilateral treaty or treaties –this being the very ground for in-
voking the multilateral treaty reservation –, the Respondent in the case can in the meantime turn round and say that the
same multilateral treaty or treaties, the very object of the reservation, should be the applicable law for the solution of the
case in dispute. The answer to this is not entirely simple and I will return to it later in the opinion.
By the 1984 Judgment, jurisdiction over Nicaragua's claims based on customary international law and the bilateral Treaty
of 1956 had been affirmed and the case was ready to enter into the merits phase. However, the question of the applicabil-
ity of the multilateral treaty reservation remained in abeyance, because it was not then sufficiently clear whether third
States parties to the multilateral treaties in question would be affected by the Judgment to be given. A treatment of this
question for its final disposal at this phase of the proceedings is indispensable for the following reasons:
Firstly, from the procedural point of view, the question had not been, and could not have been, given full treatment in the
former proceedings. A conclusion was reached with respect to jurisdiction on grounds other than the multilateral treaties
in question. Both the language and the reasoning of the 1984 Judgment do not indicate that an ultimate solution had been
attempted.
Secondly, the United States, as the declarant of the instrument accepting jurisdiction of the Court on specific questions,
has the right to expect a decision on the question which, though properly belonging to the phase on preliminary objec-
tion, can only be appropriately determined when the merits are examined in the present proceedings.
Thirdly, despite its absence from the current proceedings, the United *204 States challenge to the jurisdiction of the
Court on the ground of the multilateral treaty reservation remains an objection which cannot be ignored or overridden by
the acceptance of jurisdiction on grounds other than the multilateral treaties in question. Failure to make a definitive pro-
nouncement on the objection raised by the absent Party will not be in consonance with Article 53, paragraph 2, which
makes specific mention of jurisdiction.
Finally, any determination on the multilateral treaty reservation is intimately linked to the question of what rules of law
are to be applied. Should the Court decide that the multilateral treaty reservation contained in the United States declara-
tion constitutes a valid objection to the Court's jurisdiction, then only rules of customary international law and the provi-
sions of the bilateral Treaty of 1956 will be applicable to determine Nicaragua's allegations of breaches of obligations by
the United States. The multilateral treaty reservation, once admitted, carries with it not only exclusion of the Court's jur-
isdiction but also, as a corollary thereof, the non-applicability of the rules of law which are provided in or derived from
the multilateral treaties in question, i.e., what can be called multilateral treaty law. If, on the contrary, the Court should
decide that the multilateral treaty reservation in the United States declaration does not constitute a valid objection to the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 120
Court's jurisdiction, the application of multilateral treaty law will be of course unquestioned and the plea in bar against
the Court's jurisdiction is thereby disposed of with finality.
In considering the merits of the case, the Court would be at liberty to examine more fully the relevant facts in order to
determine with more precision whether any third State or States might be affected by the Judgment to be given. Accord-
ing to the United States,
‘El Salvador, Honduras and Costa Rica have each sought outside assistance, principally from the United States,
in their self-defense against Nicaragua's aggression . . . the United States has responded to these requests.‘
(United States Counter-Memorial, para. 202.)
While admitting provision of economic and military assistance to El Salvador, the United States contended that it was ex-
ercising the inherent right of individual and collective self-defence under Article 51 of the United Nations Charter. El
Salvador for its part has filed, pursuant to Article 62, paragraph 1, of the Court's Statute, a Declaration of Intervention
which the Court had found to be premature (I.C.J. Reports 1984, pp. 215-217).
Under the given circumstances, should the Court find that the facts of the case do not justify the United States claim of
collective self-defence, then El Salvador's claim of individual self-defence would also be in question. On the other hand,
if the Court should find the United States claim of collective self-defence to be well founded, it would also reflect on the
justification of El Salvador's claim of its right of individual self-defence. In *205 one way or the other, El Salvador, to
single it out as an example of a third State involved without mentioning any other, cannot be held to be unaffected,
though not bound by the Judgment to be given. It is difficult to imagine that the Court, in making such determination, can
either justify or deny the United States contention without reference to the position of El Salvador either in express lan-
guage or by implication. This will give rise to a kind of situation that, while the United States is bound by the Judgment
to be given, a third State thus linked thereto remains technically beyond the reach of the res judicata. Thus it might be
said that, under normal circumstances, the multilateral treaty reservation raised by the United States, in so far as jurisdic-
tion based on multilateral treaties is concerned, merits consideration. However, the matter does not end there.
As has been said before, admission of a reservation like the present one precludes, if jurisdiction still attaches on other
grounds, the application of multilateral treaty law, and thus only customary international law and rules of law provided in
or derived from the bilateral Treaty of 1956 will apply to determine the merits of the claims made by Nicaragua in the
Court against the United States. However, it is to be noticed that the United States, while relying on the multilateral
treaty reservation to challenge the exercise of jurisdiction by the Court, has at the same time, both within and outside the
proceedings in the Court, persistently invoked the United Nations Charter, the main source of multilateral treaty law ap-
plicable to the case before the Court, in order to justify its actions vis-a-vis Nicaragua.
In an address before the American Society of International Law on 12 April 1984, three days after the filing of the
Nicaraguan Application in this Court, the United States Permanent Representative to the United Nations spoke for the
first time of the right of individual and collective self-defence under Article 51 of the United Nations Charter. It was
stated that:
‘This prohibition on the use of force was never intended to stand on its own, but, as everyone here knows, I am cer-
tain, was to be seen in the context of the entire Charter. In particular, as stated in Article 51, it was not intended to
'impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the
United Nations, until the Security Council has taken measures necessary to maintain international peace and secur-
ity’.‘ (Nicaraguan Memorial, Ann. C. Attachment II-4.)
It is also to be recalled that, after the Judgment of 26 November 1984 on jurisdiction and the admissibility of Nicaragua's
Application was given, the United States repeated, in its statement of 18 January 1985, the claim of the right of collective
self-defence under the United Nations Charter (International Legal Materials, 1985, No. 1, p. 246).

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 121
Such references to the right of individual and collective self-defence *206 under Article 51 of the United Nations Charter
were made by counsel for the United States in the oral proceedings on interim measures of protection in April 1984 as
well as in the phase on jurisdiction and admissibility in October of the same year (hearings of 27 April 1984 and 16 Oc-
tober 1984). For instance, counsel for the United States stated to the Court that:
‘Nicaragua's Application and request improperly call upon this Court in the circumstances of this case to make
judgments and to impose measures potentially impairing the inherent right of States to individual and collective
self-defence under Article 51 of the United Nations Charter‘ (hearing of 27 April 1984, morning).
At another instance, counsel for the United States stated with such gravity as to say:
‘the right to engage in individual or collective self-defence recognized by Article 51 of the Charter is absolute,
may not be impaired by this Court or any other organization of the United Nations . . .‘ (hearing of 16 October
1984, morning).
In the written proceedings in the phase on jurisdiction and admissibility, the Counter-Memorial submitted by the United
States on 17 August 1984 contained numerous passages in explanation of its position. It stated categorically that:
‘Under Article 51 of the Charter of the United Nations, El Salvador has an inherent right of self-defense against such
armed attacks and a right to request that the United States provide it with assistance in resisting such attacks. The
United States presently does provide economic and military assistance to El Salvador . . .‘ (United States Counter-
Memorial, para. 290.)
Under the caption ‘The Various Multilateral Treaties on which Nicaragua Bases its Claims Are the Applicable Law
Among Nicaragua, the United States, and the Other Central American States‘, the United States claimed that:
‘Nicaragua, the United States, and the other four Central American States are all parties to each of the four multilat-
eral treaties on which Nicaragua bases its claims, most notably the Charters of the United Nations and the Organiza-
tion of American States. Regardless of the status of the Charter of the United Nations as customary and general inter-
national law, those treaties constitute the lex inter partes, and Nicaragua's claims cannot be adjudicated by referring
to some other, unagreed sources of law.‘ (United States Counter-Memorial, para. 320.)
The Counter-Memorial went on at great length to argue that the provisions of the United Nations Charter relevant to the
present case ‘subsume*207 ‘ and ‘supervene‘ related principles of customary international law (paras. 313-319). It
stressed in one of its concluding paragraphs that
‘It is well-settled that the right of individual or collective selfdefense is an inherent right of States. The special and
extraordinary nature of the right of individual or collective self-defense is explicitly recognized in the prescription of
Article 51 that 'nothing in the present Charter shall impair’ that right.‘ (Para. 516.)
Various arguments were advanced by the United States to equate the Charter provisions with customary international law
relevant to the present case (United States Counter-Memorial, paras. 313-322), for the purpose of showing that, since the
multilateral treaty reservation, once admitted, bars application of treaty law, it will likewise bar the application of cus-
tomary international law because the latter has been subsumed or supervened by the former.
However, it is certain that when principles of customary international law are incorporated into a multilateral treaty like
the United Nations Charter, these principles of customary international law do not thereby become extinct. The same
principles continue to be operative and binding on States, sometimes alongside or in conjunction with treaty law, in their
international relations with one another. Article 38, paragraph 1, of the Statute enumerates, as applicable by the Court,
the various sources of international law which, in the course of application, usually support, rather than preclude, each
other. But it would be inconceivable that application of one should exclude that of any other.
The Judgment of 26 November 1984 clearly stated:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 122
‘The Court 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 these above-mentioned principles, recognized as such, have been codified or embodied in multilateral con-
ventions does not mean that they cease to exist and to apply as principles of customary law, even as regards coun-
tries that are parties to such conventions.‘ (I.C.J. Reports 1984, p. 424, para. 73.)
What is left of the above-mentioned arguments is that the United States is unreservedly committed to the position of ac-
cepting the multilateral treaties, the United Nations Charter in particular, as the applicable law for the settlement of the
present dispute. This is clearly in contradiction to the stand it took in respect of the multilateral treaty reservation in chal-
lenging the exercise of jurisdiction over the dispute by the Court.
What is more, not only did the United States hold firm on the application of multilateral treaty law, but Nicaragua also,
for its part, responded to the United States contention based on Article 51 of the United Nations Charter by arguing that
the factual allegations made against Nicaragua by *208 the United States fell short of an ‘armed attack‘ within the mean-
ing of the aforesaid Article and that the United States had not fulfilled the condition of immediately reporting to the Se-
curity Council as required by that Article. Counsel for Nicaragua stated, for instance, the following:
‘Article 51 recognizes 'the inherent right of individual or collective self-defence if an armed attack occurs against a
member of the United Nations'. The critical words are 'if an armed attack occurs'. They delimit the scope of the ex-
ception.‘ (Hearing of 25 April 1984, morning).
‘Article 51 provides that measures taken by members in the exercise of this right of self-defence shall be immedi-
ately reported to the Security Council. Neither the United States nor El Salvador has ever made such a report to the
Security Council.‘ (Ibid.)
It can be plainly seen that the two Parties have in fact already joined issue not merely on the applicability, but also on the
substance, of a specific provision in the multilateral treaty. They hold different views which, however, stem from the
same source, Article 51 of the United Nations Charter. It is left to the Court to decide, on the basis of such multilateral
treaty, whether the actions of the United States can be justified. Although such exchanges did not occur in the present
phase of the proceedings, the like-minded logic of the Parties to rely on multilateral treaty law as the applicable law for
the solution of the case in dispute should not be negatived by the mere fact that such exchanges were made at an earlier
stage. No procedural formalism will in all seriousness disregard the Parties' shared positive attitude towards the applica-
tion of the rules of law flowing from instruments of global or regional recognition. The United States itself has quoted
authorities to show that it is only when there are no provisions of a treaty applicable to a situation that international cus-
tomary law is, next in hierarchical order, properly resorted to and that these conclusions are virtually axiomatic (United
States Counter-Memorial, para. 321). If it can be taken that Members of the United Nations may ‘opt out‘ of the Organiz-
ation's Charter by way of invoking a multilateral treaty reservation, why cannot they ‘opt in‘ by joining issue on the mer-
its of such multilateral treaty?
It is to be pointed out that claims based on a treaty do not only owe their creation and existence to the treaty. They are
also to be regulated by the treaty in question. It can hardly be imagined that claims are based on a treaty but not regulated
by it. It is owing to the possibility of affecting a third party or parties by the application of multilateral treaty law, that
the Court is asked to refrain from exercising jurisdiction in a case such as the present. Therefore, where the Court re-
frains from exercising jurisdiction *209 because of the multilateral treaty reservation, it will be precluded from applying
multilateral treaty law. Conversely, if the Court does exercise jurisdiction notwithstanding the multilateral treaty reserva-
tion, it logically follows that the multilateral treaty law, which regulates the mutual rights and obligations of the parties,
will be applied for the settlement of the dispute before the Court.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 123
The multilateral treaty reservation of the United States, though procedurally linked to jurisdiction, is in substance related
to the regulation of the rights and obligations of the Parties. The United States cannot claim that the multilateral treaty re-
servation concerns only the jurisdiction of the Court and is without relation to the question of the applicable law. These
two aspects are intimately related and cannot contradict each other, if the reservation is to have any meaning at all.
However, the United States, while invoking the multilateral treaty reservation, had at all times declared its unconditional
reliance on the United Nations Charter, which is a multilateral treaty, and had at no time made any intimation that such
attitude was without prejudice to its position on the reservation with respect to jurisdiction. In fact, it could not have
maintained such a self-conflicting stand.
Throughout the proceedings prior to its withdrawal from participation, the United States had persistently relied on multi-
lateral treaties, the United Nations Charter in particular, not merely for the purpose of convincing the Court, as suggested
in paragraph 46 of the Judgment, that the present dispute was one ‘arising under‘ those treaties and hence excluded from
jurisdiction by the United States multilateral treaty reservation, but to fortify its claim of justification for its actions vis-
a-vis Nicaragua on the basis of Article 51 of the United Nations Charter, which constitutes the mainstay of its affirmative
defence in the present case. Although the United States chose not to participate in the proceedings on the merits, it did
clearly state the bases of its arguments against Nicaragua's Application during the phase on jurisdiction and admissibility.
In this sense, the question of applicable law is considered by the United States as essential and central to its defe ce.
Since lack of jurisdiction, if the multilateral treaty reservation is effective, will presuppose non-application of multilater-
al treaty law, insistence on applying multilateral treaty law can only be taken as abandonment of the position on the mul-
tilateral treaty reservation. In view of the attitude shared by both Parties towards the question of the applicable law, and
in deference to the paramountcy of the United Nations Charter, it is submitted that the United States should be con-
sidered as having waived its objection based upon the multilateral treaty reservation which concerns both the jurisdiction
of the Court and the application of law. The attitude of the United States as described above warrants a conclusion of
such waiver, which alone is compatible with its own stance of strong adherence to the United Nations Charter, as well as
the other multilateral treaties. It is to be recalled that the United States once emphasized: ‘those treaties *210 constitute
the lex inter partes, and Nicaragua's claims cannot be adjudicated by referring to some other, unagreed sources of law‘
(United States Counter-Memorial, para. 320).
According to the Judgment of 26 November 1984, the Court has jurisdiction to adjudicate Nicaragua's claims based on
customary international law and the bilateral Treaty of 1956. What remains to be decided in the merits phase on the ques-
tion of the multilateral treaty reservation is whether or not the Court is also competent to entertain the proceedings with
respect to Nicaragua's claims based on multilateral treaties and, as a corollary thereof, what law will be the applicable
law. Since the question of the applicable law cannot be treated independently of the multilateral treaty reservation, the
unequivocal attitude maintained by the United States with respect to the applicable law can only be taken as waiver of
the multilateral treaty reservation. The assumption of waiver does not alter the position of the Court, which has already
entertained jurisdiction over the present proceedings. Such being the case, while the Court remains seised of the case as
before, the rights and obligations of the Parties are subject to both the multilateral treaty law and the related principles of
customary international law as well as rules derived from the bilateral Treaty of 1956.
There is no legal barrier to prevent the United States from giving effect to the waiver, since, according to the text of the
multilateral treaty reservation, the United States can always specially agree to jurisdiction. It is also to be noted that
Nicaragua has not complained in the Court of any third State or States. It did not question the right of El Salvador to re-
ceive from the United States assistance, military or otherwise (Nicaraguan Memorial, para. 193). The Court has likewise
made clear in its 1984 Judgment on jurisdiction and admissibility of Nicaragua's Application that ‘the rights of no other
State may be adjudicated in these proceedings‘ (I.C.J. Reports 1984, p. 436, para. 98). Whether or not they will be af-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 124
fected in any manner by the decision to be given, it might be appropriate to refer to Article 59 of the Statute, which
provides that a decision will have no binding force except between the parties and in respect of the particular case. In
fact, on the question whether or not Nicaragua has acted in such a way as to amount to resort to the threat or use of force
against its neighbours, the Court in the present Judgment considers the evidence to be insufficient or inconclusive. Con-
sequently no third party would be in all certainty affected thereby.
Before concluding, it may be said that the treatment of the multilateral treaty reservation invoked by the United States
has followed a zigzag path for which a careful mapping would be necessary. Failure to do so will confound the issues
resulting in contradictions and inconsistencies, as can be demonstrated by the conflict between the United States stand in
respect of jurisdiction and its stand in respect of the applicable law. They need to be re-aligned and given comprehensive
appraisal in accordance with logic *211 and good sense. For the foregoing reasons, I regret that I cannot cast an affirmat-
ive vote for subparagraph (1) of paragraph 292 in the operative part of the Judgment, which finds the multilateral treaties
invoked by Nicaragua as not applicable because of the multilateral treaty reservation of the United States. As to the other
subparagraphs in which customary international law and provisions of the Treaty of Friendship, Commerce and Naviga-
tion signed on 21 January 1956 are taken as bases, I have voted in favour on the understanding that relevant rules of the
multilateral treaty law are, where appropriate, not precluded from being applied as bases in support of the findings.
(Signed) NI Zhengyu.
FN1 Cf. The Function of Law in the International Community, Oxford 1933, p. 389.
FN2 Leo Gross, United States Diplomatic and Consular Staff in Tehran 1974 case, 2 AJIL, 1980, pp. 395 ff.
FN3 Leo Gross, op. cit. (quoting from pp. 35-36 of the I.C.J. Pleadings, United States Diplomatic and Consular Staff in
Tehran).
FN4 Ibid., p. 410.
FN5 I.C.J. Reports 1978, p. 52.
FN1 If I make use solely of the original English text, this is because of the problems of interpretation to which the French
translation in the United Nations Treaty Series might give rise – problems which there is no ground for allowing any role
in the case.
FN2 I am somewhat surprised at the assurance with which the Court in its Judgment (para. 202) has felt able to assert
that ‘the existence in the opinio juris of States of the principle of non-intervention is backed by established and substan-
tial practice‘.
FN3 See the articles entitled ‘Impressions du Nicaragua‘, I and II, by Jacques-Simon Eggly, published in the Journal de
Geneve on 26 and 27 May 1986.
FN4 I refer to Articles 11 (Conduct of persons not acting on behalf of the State) and 8 (Attribution to the State of the
conduct of persons acting in fact on behalf of the State), read together.
FN5 The underlying idea is expressed most precisely in paragraph 115, where the Judgment holds that ‘even the general
control by the respondent State over a force with a high degree of dependency on it‘ would not in itself mean ‘that the
United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by
the applicant State‘ (emphasis added). Subsequently, in this paragraph and another (277), the Judgment relies to the same

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 125
purpose on the fact that the Court is ‘not satisfied that the evidence available demonstrates that the contras were 'con-
trolled’ by the United States when committing‘ the acts in question. This observation is not wrong as far as it goes, but it
is less precise than the previous one I have quoted. It would, I think, be regrettable if the introduction at this point of the
idea of ‘control‘, accompanied by such expressions as those in paragraph 116 which contrast the acts of the contras to
those for which the United States might be ‘responsible directly‘, should implant in readers the erroneous idea that the
Court is establishing an analogy between the situation here envisaged and instances where it is appropriate to speak of
‘indirect responsibility‘ as opposed to ‘direct responsibility‘. In my view, the situations which can be correctly termed
cases of indirect responsibility are those in which one State that, in certain circumstances, exerts control over the actions
of another can be held responsible for an internationally wrongful act committed by and imputable to that second State.
The question that arises in such cases is not that of the imputability to a State of the conduct of persons and groups that
do not form part of its official apparatus, but that of the transfer to a State of the international responsibility incurred
through an act imputable to another State.
FN6 For example, I find that the Court has devoted adisproportionately lengthy passage and attached undue importance
(in paras. 117 ff.) to the – apparently limited – dissemination among the contra forces of the CIA-published manual on
Operaciones sicologicas en guerra de guerrillas. Even apart from the fact –recognized by the Judgment – that the oppos-
ing sides in a civil war like the one unhappily raging in Nicaragua need no outside encouragement to engage in activities
which may be anti-humanitarian, I have difficulty in seeing precisely how the responsibility deriving from such
‘encouragement‘, the reality and efficacy of which remain moreover to be proved, woudl take shape in general interna-
tional law.
*212 DISSENTING OPINION OF JUDGE ODA
TABLE OF CONTENTS
Paragraphs
OPENING REMARKS 1-3
I. EFFECT OF THE APPLICATION
GIVEN TO THE ‘VANDENBERG RE-
SERVATION‘ BY THE JUDGMENT –
NICARAGUA'S APPLICATION
BASED ON ARTICLE 36, PARA-
GRAPH 2, OF THE STATUTE
SHOULD BE DISMISSED
A. Applicability of the ‘Vandenberg Re- 4-6
servation‘
B. The Judgment's failure to understand 7-14
the effect of the ‘Vandenberg Reserva-
tion‘
II. THE NON-JUSTICIABILITY OF THE
PRESENT CASE – NICARAGUA'S
APPLICATION BASED ON ARTICLE
36, PARAGRAPH 2, OF THE STAT-
UTE SHOULD BE DECLARED INAD-
MISSIBLE

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 126
A. Introduction 15-19
B. Limited scope of ‘legal disputes‘ in 20
Article 36, paragraph 2, of the Statute
1. The justiciability and concept of legal
disputes historical survey
(i) The concept of ‘legal disputes sub- 21-26
ject to compulsory arbitration‘ prior to
the institution of the Permanent Court of
International Justice
(ii) Justiciable and non-justiciable dis- 27-35
putes under the Covenant of the league
of Nations and the Statute of the Per-
manent Court of International Justice
(iii) The concept of justiciable disputes 36-38
subsequent to the inception of the Per-
(iv) Legal disputes found suitable for 39-40
settlement by the International Court of
Justice
2. The difficulty of viewing the present
case as concerning a ‘legal dispute‘’
within the meaning of the Statute
(i) In general 41-45
(ii) Precedents in the previous and 46-47
present Courts
(iii) Conclusion 48-49
C. Considerations of judicial propriety
that should have dissuaded the Court
from pronouncing on the Nicaraguan
Application on the basis of Article 36,
paragraph 2, of the Statute
1. The Court should not have adjudged 50-54
the Application because of the consider-
ations of administration of justice – a
preliminary issue
2. The concept of the non-justiciable 55-60
‘political dispute‘ – parallelism of legal
and political disputes
3. Incomplete picture of the dispute as
portrayed by the Court
(i) Lack of sufficient means for fact- 61-64
finding

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 127
(ii) Nicaragua's Application reflecting 65-66

only one side of the dispute
(iii) Non-participation of the United 67-69
States in the proceedings – Article 53 of
the Statute
D. Concluding remarks on the non- 70-72
justiciability
III. BREACH OF OBLIGATIONS UNDER
THE TREATY OF FRIENDSHIP,
COMMERCE AND NAVIGATION–
THE COURT'S APPROPRIATION OF
THE CASE UNDER ARTICLE 36,
PARAGRAPH 1, OF THE STATUTE
A. The Court's jurisdiction granted by 73-74
Article XXIV, the Compromissory
Clause, of the 1956 Treaty
B. The Court's partial reversion to juris- 75-78
diction under Article 36, paragraph 2, of
the Statute in relation to the Treaty
C. Misconception of the customary-law 79-82
rule not to defeat the ‘ bject and pur-
pose‘’ of a Treaty
D. Breaches of the terms of the 1956
Treaty
1. Breaches of Article XIX of the Treaty 83-84
2. Applicability of Article XXI of the 85-89
Treaty
IV. SUPPLEMENTARY OBSERVATIONS 90-97
*214 1. I have given support to subparagraph (1) of the Operative Clause but, by the logic of this subparagraph which has
recognized the applicability of the so-called Vandenberg Reservation, the Court should now have ceased to entertain the
Application of Nicaragua in so far as it is based on Article 36, paragraph 2, of the Statute (Part I below). In addition, I
believe that, for other reasons as stated below (Part II), the dispute referred to the Court by the Nicaraguan Application,
as so based, should have been declared nonjusticiable.
2. I hold that the Court could have remained seised of this case only in relation to the alleged violation by the United
States of the 1956 Treaty of Friendship, Commerce and Navigation between the two Parties. From this point of view I
voted in favour of subparagraph (7), but voted against subparagraph (6) because it would have been sufficient for the
Court to decide on subparagraph (7) only, and against subparagraph (8) because such a decision by the Court concerning
a breach of obligations erga omnes under customary international law is out of place in this Judgment. I was also unable
to vote in favour of subparagraph (10), for the reason that I believed the Judgment was mistaken in bringing the United
States attacks on Nicaraguan territory into relation with that Treaty and, by basing a construction upon its ‘object and
purpose‘, had exceeded the jurisdiction granted by its compromissory clause. My negative vote on subparagraph (11) was
cast because the attacks on Nicaraguan territory could not be related in my view to a breach of the 1956 Treaty; nor was

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 128
the trade embargo to be regarded as a breach of it (Part III below).
3. I was obliged to vote against subparagraphs (2), (3), (4), (5), (9), (12) and (13), simply because I considered, as stated
above, that the Court should not have pronounced on these issues in the present case unless covered by the compromis-
sory clause of the 1956 Treaty. This does not mean, however, that I am in disagreement with all the legal arguments ex-
pounded by the Court regarding the principles of non-intervention, prohibition of the use of force and respect for sover-
eignty. These principles should certainly be respected, and by Nicaragua no less than the United States. In particular, my
negative vote on subparagraph (9) must not be interpreted as implying that I am opposed to the Court's findings on this
particular point.
*215 I. EFFECT OF THE APPLICATION GIVEN TO THE ‘VANDENBERG RESERVATION‘ BY THE JUDGMENT
– NICARAGUA'S APPLICATION BASED ON ARTICLE 36, PARAGRAPH 2, OF THE STATUTE SHOULD BE
DISMISSED
A. Applicability of the ‘Vandenberg Reservation‘
4. The present case was submitted by Nicaragua with a request for the Court to adjudge and declare:
‘(a) That the United States, in recruiting, training, arming, equipping, financing, supplying and otherwise encour-
aging, 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.‘
One of Nicaragua's main allegations is that the United States has violated the rules of international law under several
multilateral treaties which, in one way or another, prohibit the ‘threat or use of force‘ and ‘intervention‘.
5. Unlike some older principles of international law, the particular principle concerning ‘threat or use of force‘ emerged
in parallel with the birth of the United Nations towards the end of the Second World War, when the move to outlaw war
in general was successfully made. The principle of non-intervention, in contrast, has a long history of application since
Emer de Vattel wrote in 1758 as follows:
‘It clearly follows from the liberty and independence of Nations that each has the right to govern itself as it thinks
proper, and that no one of them has the least right to interfere in the government of another.‘ (The Law of Nations,
Classics of International Law, Trans., p. 131.)
Yet in ages previous to our own, some attempts were made to justify intervention within the framework of international
law in time of peace, even though it could eventually be tantamount to resort to war (which in itself was not then deemed
illegal). The dual system of international law in time of peace and international law in time of war was abandoned with
the emergence of the outlawry of war and the principle of non-intervention, *216 which, together with the prohibition of
the threat or use of force, came to encapsulate the founding spirit of the United Nations.
6. Thus I have no doubt that the present case conspicuously falls to be considered within the framework of the United
Nations system and, for that matter, that of the Organization of American States, which has pioneered and adopted simil-
ar principles. Having regard to the fact that the Court in 1984 found that it possessed jurisdiction under Article 36, para-
graph 2, of the Statute, I fully support the Court's decision that ‘the Court is required to apply the 'multilateral treaty re-
servation’ contained in [the United States declaration of acceptance of jurisdiction]‘ (para. 292 (1)).

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 129
B. The Judgment's Failure to Understand the Effect of the ‘Vandenberg Reservation‘
7. The United States declaration read, in part:

‘. . . this declaration shall not apply to . . .
(c) disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also
parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction . . .‘
The Court does not doubt that all parties to multilateral treaties, i.e., the Charter of the United Nations and the Charter of
the Organization of American States, affected by the Judgment are not parties to the present case. Yet the Judgment
states:
‘It should however be recalled that . . . the effect of the reservation in question is confined to barring the applicabil-
ity of the United Nations Charter and OAS Charter as multilateral treaty law, and has no further impact on the
sources of international law which Article 38 of the Statute requires the Court to apply.‘ (Para. 56.)
‘In formulating its view on the significance of the United States multilateral treaty reservation, the Court has reached
the conclusion that it must refrain from applying the multilateral treaties invoked by Nicaragua in support of its
claims, without prejudice either to other treaties or to the other sources of law enumerated in Article 38 of the Stat-
ute. The first stage in its determination of the law actually to be applied to this dispute is to ascertain the con-
sequences of the exclusion of the applicability of the multilateral treaties for the definition of the content of the cus-
tomary international law which remains applicable.‘ (Para. 172.)
*217 ‘It will . . . be clear that customary international law continues to exist and to apply, separately from interna-
tional treaty law, even where the two categories of law have an identical content.‘ (Para. 179.)
8. In sum, the Judgment holds that the Court can still decide the issues before it for the reason that, without reference
to such multilateral treaties as the Charter of the United Nations and the Charter of the Organization of American
States, the Court can apply customary and general international law which, though having been subsumed in the said
multilateral treaties, exists independently.
9. It may well be contended that principles such as the non-use of force and the non-intervention now exist independently
as customary and general international law. However, I cannot agree with the Judgment in its contention that the Court
may entertain the Nicaraguan Application under Article 36, paragraph 2, of the Statute on the alleged assumption that the
United States reservation regarding ‘disputes arising under a multilateral treaty‘ simply excludes from the jurisdiction
conferred on the Court under that provision of the Statute legal disputes concerning ‘the interpretation of a [multilateral]
treaty‘, or that, since the present case involves a ‘question of international law‘, the Court's entertainment of it should not
be affected by that reservation inasmuch as the Court, independently of ‘the interpretation of a treaty‘, can confine itself
to the application of the principles of customary and general international law.
10. I believe that the issue – which relates to applicable law – of whether, once the Court assumes jurisdiction over a
case, it can apply the rules of customary and general international law apart from any applicable treaty rules, is quite dif-
ferent from the other issue – which relates to the Court's jurisdiction – of whether a State's declaration excludes ‘disputes
arising under multilateral treat[ies]‘ (United States reservation) from ‘the jurisdiction of the Court, [which by nature can
only be voluntarily accepted] in all legal disputes concerning (a) the interpretation of a treaty, (b) any question of interna-
tional law . . .‘ (Statute, Art. 36, para. 2). The United States declaration of acceptance of the Court's jurisdiction excluded
disputes arising under multilateral treaties subject to exceptions which do not qualify my reasoning and, in any event,
have not materialized in the present case.
11. The persistent use of the term ‘reservation‘ to describe the exception clauses attached by States to their declarations
under Article 36, paragraph 2, of the Statute, and more especially the attachment of the term ‘Vandenberg Reservation‘
to the exception in the United States declaration relating to disputes that arise under a multilateral treaty, have surely

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 130
contributed to a misconception of the inherent scope of such declarations, *218 and of that one in particular. Because of
the idealism underlying the notion of a sovereign State submitting to be judged, the so-called ‘acceptance of the Optional
Clause‘ has always been imagined in terms of the ideal case, where that submission is total and ‘unreserved‘. Neverthe-
less, the very structure of Article 36, paragraph 2, should make it clear that, in framing a declaration, a State, guided by
the categories there suggested (the historical origins of which I shall explain in paras. 27-40), has simply to delineate the
bounds of the area of legal disputes over which, subject to reciprocity, it is prepared to accept the Court's jurisdiction in-
dependently of treaty clauses or special agreements. If it is under no obligation to make any declaration at all, still less is
it obliged to take the ideal case as its standard.
12. Hence the fact that exception clauses may frequently be useful as a means of delineation does not justify any pre-
sumption that a State employing them has retracted various parts of an a priori wholesale acceptance of the Court's juris-
diction; on the contrary, the instrument remains a positive indication that the State has unreservedly accepted that juris-
diction within a certain area which those exceptions have merely helped to define. Outside that area, there is simply no
acceptance, not even an acceptance subject to a ‘reservation‘, and to reason as if there were is to yield to a kind of optical
illusion.
13. In the present case, it seems that thinking about a certain exception in terms of a ‘reservation‘ has helped the Court to
imagine that if multilateral treaties were ignored as a source of positive law, the ‘reservation‘ would lose its potency, so
that the exception could be circumvented. I have explained above why I find this erroneous. The reference to multilateral
treaties is merely a means of drawing the boundaries of jurisdiction so as to exclude certain disputes: there is no justifica-
tion for supposing that a dispute ‘arising under‘ a multilateral treaty can nevertheless be brought under the Court's au-
thority because (inevitably) it can also be analysed in terms of general international law. Having decided that the present
dispute did ‘arise under‘ such a treaty or treaties, the Court should have concluded that only in the circumstances de-
scribed by the exception itself, namely, the presence of all parties affected or specific waiver, could the boundary of ac-
ceptance of jurisdiction be widened to admit the dispute under Article 36, paragraph 2.
14. Thus, if the so-called Vandenberg Reservation is applicable in this case, and the United States acceptance of the
Court's compulsory jurisdiction consequently does not extend to disputes arising under the Charter of the United Nations
and the Charter of the Organization of American States, and if the Judgment yet declares that the Court can entertain the
present case as admissible under Article 36, paragraph 2, as stated:
*219 ‘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 custom-
ary international law notwithstanding the exclusion from its jurisdiction of disputes 'arising under’ the United Na-
tions and OAS Charters‘ (para. 182),
the Court should have proved, not that it can apply customary and general international law independently, but that the
dispute referred to it in the Applicant's claims had not arisen under these multilateral treaties. The Judgment, however,
fails to do this. I must repeat my belief that, in so far as the Judgment holds the Vandenberg Reservation to be applicable,
in my view, correctly, the Court should not, and indeed could not, on the basis of Article 36, paragraph 2, of the Statute,
have entertained the whole dispute involving ‘military and paramilitary activities in and against Nicaragua‘ which the
United States has allegedly pursued.
II. THE NON-JUSTICIABILITY OF THE PRESENT CASE – NICARAGUA'S APPLICATION BASED ON ARTICLE
36, PARAGRAPH 2, OF THE STATUTE SHOULD BE DECLARED INADMISSIBLE
A. Introduction

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 131
15. While the test of jurisdiction is whether the dispute referred for judgment lies within the scope and range of the spe-
cific competence granted to the court in question by a basic instrument, so that the possession of jurisdiction has to be as-
sessed as a matter of priority and in terms of that instrument, the question of the admissibility of a claim calls for applica-
tion of instrument, norms of the judiciary as to whether the judicial function should or should not extend to cover the is-
sues in contention. Inasmuch as the answering of this question presupposes an adequate characterization of those issues,
admissibility is not necessarily a preliminary matter, in the sense of one that can be resolved before their merits are ex-
amined. In a more important sense, however, it is always preliminary, in that no finding may be made on the merits if it
remains unresolved. The Judgment states:
‘especially when the character of the objections is not exclusively preliminary because [the objections] contain
both preliminary aspects and other aspects relating to the merits, they will have to be dealt with at the stage of
the merits‘ (para. 41).
16. The Court, in its 1984 Judgment, rejected some grounds adduced by the United States for the inadmissibility of the
dispute (I.C.J. Reports *220 1984, pp. 429-441). It appears to me, however, that the 1984 Judgment did not dispose of
the still essential question of whether the present case is justiciable or not. Dealing with the justiciability, the Court ob-
serves that the United States did not argue that this is not a ‘legal dispute‘, and states:
‘the Court can at this stage confine itself to a finding that, in the circumstances of the present case, the issues
raised of collective selfdefence are issues which it has competence, and is equipped, to determine‘ (para. 35).
17. I believe that the Nicaraguan Application should be declared nonjusticiable, since in my view the dispute at issue is
one which does not fall into the category of ‘legal‘ disputes within the meaning and intention of Article 36, paragraph 2,
of the Statute. It may be argued (and the present Judgment deliberately attempts to do so, see para. 32) that the interpreta-
tion of the competence of the Court as conferred in accordance with that provision has been settled by a determination of
jurisdiction. However, the question as to whether this dispute should be considered as justiciable in terms of the concept
of ‘legal disputes‘ within the meaning of the Statute is related to the merits of the dispute. Accordingly, it deserves and
requires reconsideration at the present stage (see Section B below).
18. Furthermore, even if my contention were not well founded, it would in my view have been prudent for the Court, in
the light of the merits of the present case, to find it a matter of judicial propriety not to proceed with a case so highly
charged with issues central to the sensitive political relations of many States: a circumstance that undoubtedly accounts
for much of the vigour with which the Respondent has first challenged, then been seen to defy, the Court's jurisdiction
(see Section C below).
19. These are the positions which I have taken throughout the Court's considerations of the present case, and I regret that
the Judgment has not taken them into account.
B. Limited Scope of ‘Legal Disputes‘ in Article 36, paragraph 2, of the Statute
1. The justiciability and concept of legal disputes – historical survey
20. Referring to the concept of ‘legal disputes‘ in connection with the function of the International Court of Justice, the
following two provisions may be recalled:
The Charter of the United Nations, Article 36, paragraph 3
‘In making recommendations under this Article the Security Council should also take into consideration that legal
disputes should as a general rule be referred by the parties to the International Court of *221 Justice in accordance

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 132
with the provisions of the Statute of the Court.‘
The Statute of the International Court of Justice, Article 36, Paragraph 2
‘The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and
without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court
in all legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international obligation.‘
Looking back at the history of the settlement of international disputes by arbitration or adjudication, one may clearly see
that the ‘legal disputes‘ subject to such settlement were limited in scope and, more basically, that their referral to such a
settlement was always to depend ultimately on the assent of the States in dispute.
(i) The concept of ‘legal disputes subject to compulsory arbitration‘ prior to the institution of the Permanent Court of In-
ternational Justice
(a) The 1899 and 1907 Conventions for the Peaceful Settlement of International Disputes
21. Following the precedents set by some arbitration clauses in bilateral treaties towards the end of the nineteenth cen-
tury, and by some arbitration treaties, mainly among countries of the western hemisphere, the 1899 Convention for the
Peaceful Settlement of International Disputes provided that:
‘In questions of a legal nature, and especially in the interpretation or application of international conventions, arbit-
ration is recognized by the signatory Powers as the most effective and at the same time the most equitable means of
settling disputes which diplomacy has failed to settle.‘ (Art. 16.) (The Proceedings of the Hague Peace Conferences
(Translation of the Official Texts), The Conference of 1899, p. 238.)
Referral to arbitration was far from obligatory.
22. The 1899 Convention was amended in this regard at the Second Peace Conference in 1907 only by the addition of a
new paragraph, which suggested that:
‘Consequently, it would be desirable that, in disputes about the above-mentioned questions, the contracting Powers,
if the case arise, *222 have recourse to arbitration, in so far as circumstances permit.‘ (Art. 38.) (The Proceedings of
the Hague Peace Conferences (Translation of Official Texts), The Conference of 1907, Vol. I, p. 605.)
The Second Peace Conference, held in 1907, failed to establish compulsory arbitration. A project to institute it was put to
the vote by the First Commission but in the end was not found acceptable. The unsuccessful draft, which would have
been added to Article 16 of the 1899 Convention, sought to provide that:
‘Differences of a legal nature, and especially those relating to the interpretation of treaties existing between two or
more of the contracting States, which may in future arise between them, and which it may not have been possible to
settle by diplomacy, shall be submitted to arbitration, provided, nevertheless, that they do not affect the vital in-
terests, the independence or the honor of any of the said States, and do not concern the interests of other States not
involved in the dispute.‘ (Art. 16a.) (Ibid., p. 537.)
23. That project suggested, however, that some differences should be ‘by nature subject to arbitration without the reser-
vations mentioned in Article 16a‘ (Art. 16c.) (ibid.), and enumerated as such the following differences:
‘I. Disputes concerning the interpretation and application of conventional stipulations relating to the following sub-
jects:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 133
1. Reciprocal free aid to the indigent sick.

2. International protection of workmen.
3. Means of preventing collisions at sea.
4. Weights and measures.
5. Measurement of ships.
6. Wages and estates of deceased seamen.
7. Protection of literary and artistic works.
II. Pecuniary claims for damages, when the principle of indemnity is recognized by the parties.‘ (Art. 16d.) (Ibid.)
A suggestion was also made for a protocol enumerating ‘such other matters . . . to admit of embodiment in a stipulation
respecting arbitration without reserve . . . on condition of reciprocity‘ (Art. 16e) (ibid.). The British delegate accordingly
proposed a protocol, with an annexed table listing the following subjects:
‘1. Pecuniary claims for damages, when the principle of indemnity is recognized by the parties.
2. Reciprocal free aid to the indigent sick.
3. International protection of workmen.
*223 4. Means of preventing collisions at sea.
5. Weights and measures.
6. Measurement of vessels.
7. Wages and estates of deceased seamen.
8. Protection of literary and artistic works.
9. Governance of commercial and industrial companies.
10. Pecuniary claims arising from acts of war, civil war, arrest of foreigners, or seizure of their property.
11. Sanitary regulations.
12. Equality of foreigners and nationals as to taxes and imposts.
13. Customs tariffs.
14. Regulations concerning epizooty, phylloxera, and other similar pestilences.
15. Monetary systems.
16. Rights of foreigners to acquire and hold property.
17. Civil and commercial procedure.
18. Pecuniary claims involving the interpretation or application of conventions of all kinds between the parties in
dispute.
19. Repatriation conventions.
20. Postal, telegraph, and telephone conventions.
21. Taxes against vessels, dock charges, lighthouse and pilot dues, salvage charges and taxes imposed in case of
damage or shipwreck.
22. Private international law.‘ (Art. 16e) (The Proceedings of the Hague Peace Conferences (Translation of Official
Texts), The Conference of 1907, Vol. I, p. 539.)
Thus we see that, despite the aim of compulsory referral to arbitration, the project, on the one hand, embodied a reserva-
tion that the disputes concerned
‘do not affect the vital interests, the independence or the honor of any of the said States, and do not concern the
interests of other States not involved in the dispute‘
and, on the other hand, enumerated a limited number of extremely technical and preponderantly non-political subjects of
dispute as constituting those which the parties would unreservedly agree to submit to arbitration.
24. The project itself was not put to the vote at the plenary meeting and I do not need to repeat that the result of the 1907
Conference was far from successful, at least from the point of view of obligatory arbitration. It is, however, important to

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 134
note that even in that project only a narrowed selection of the ‘differences of a legal nature, and especially those relating
to the interpretation of treaties‘ – a selection restricted to predominantly *224 technical matters – was suggested as fall-
ing within the ambit of compulsory arbitration. Hence it is clear that even the more idealistic drafters were inclined to
consider that the ‘justiciable dispute‘ should be so restricted as to cover only some highly technical or procedural issues.
(b) Justiciable disputes in arbitration treaties early in this century
25. Four years after the 1899 Convention, but before the 1907 Second Peace Conference, the bilateral treaty of 1903
between France and Great Britain attracted the interest of the world as the first European step towards the compulsory re-
ferral of international disputes to settlement by arbitration, and this was followed by eight similar treaties concluded prior
to 1907, to which in the main either Great Britain or France was a party. The number of similar bilateral treaties of arbit-
ration concluded from 1907 to the 1920s amounts to 29. Unlike the multilateral treaty of 1899, this bilateral model set up
a binding norm for the two contracting parties with regard to compulsory referral of some types of dispute to the Perman-
ent Court of Arbitration. The 1903 treaty states that ‘differences which may arise of a legal nature, or relating to the in-
terpretation of Treaties existing between the two Contracting Parties‘, should be referred to the Permanent Court of Ar-
bitration (Art. I). The conditions for compulsory referral were restricted by the proviso in each treaty that:
‘[the disputes] do not affect the vital interests, the independence, or the honour of the two Contracting States,
and do not concern the interests of third Parties‘ (Art. I) (British and Foreign State Papers, Vol. XCVI, p. 35).
This famous clause of four reservations concerning vital interests, independence, honour and third party interests to be
attached to compulsory arbitration, which, as stated above, was also later incorporated in the 1907 project at the Hague
Conference, commenced with the 1903 Treaty. It is to be further noted that in each individual case the conclusion of a
special agreement was a prerequisite for
‘defining clearly the matter in dispute, the scope of the powers of the Arbitrators, and the periods to be fixed for
the formation of the Arbitral Tribunal and the several stages of the procedure‘ (Art. II).
26. In 1911 the United States Government concluded with Great Britain and France respectively the General Arbitration
Treaties, which provided that:
‘All differences hereafter arising between the high contracting parties . . . relating to international matters in which
the high contracting parties are concerned by virtue of a claim of right made by *225 one against the other under
treaty or otherwise, and which are justiciable in their nature by reason of being susceptible of decision by the applic-
ation of the principles of law or equity, shall be submitted to the Permanent Court of Arbitration . . . or to some other
arbitral tribunal as may be decided in each case by special agreement . . .‘ (Art. 1) (American Journal of International
Law, Supplement, Vol. V, pp. 253, 249.)
These treaties provided that, in cases where the parties disagreed as to whether a difference was subject to arbitration un-
der the treaty concerned, the question should be submitted to a joint high commission of inquiry, and that, if all, or all but
one, of the members of that commission decided the question in the affirmative, the case should be settled by arbitration
(Art. 3). These treaties would have been highly progressive from the standpoint of the compulsory settlement of disputes,
but they failed to secure the approval of the United States Senate, in particular because of the extremely novel concept of
the determination of the jurisdiction of the tribunal by a third body. Yet one more attempt to institute compulsory arbitra-
tion had thus failed.
(ii) Justiciable and non-justiciable disputes under the Covenant of the League of Nations and the Statute of the Per-
(a) The Covenant of the League of Nations

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 135
27. Plans for the post-war institution were being prepared from 1918 onwards. The peaceful settlement of international
disputes was one of the main issues, and it was always considered that, while some disputes might be suitable for settle-
ment by arbitration, others might be more properly dealt with by that worldwide institution or through conciliation by an
organ to be set up by that institution. One of the earliest plans, proposed by Lord Phillimore in 1918, identified, in partic-
ular, four types of dispute suitable for settlement by arbitration, i.e., disputes concerning ‘the interpretation of a treaty‘,
‘any question of international law‘, ‘the existence of any fact which if established would constitute a breach of any inter-
national obligation‘ or ‘the nature and extent of the reparation to be made for any such breach‘, and suggested the provi-
sion reading that ‘arbitration is recognized by the Allied States as the most effective and at the same time the most equit-
able means of settling the dispute‘ (David Hunter Miller, The Drafting of the Covenant, Vol. II, p. 4). General Smuts,
British delegate at the Paris Peace Conference, referring to ‘the two classes of justiciable and other disputes‘, also men-
tioned these four types of dispute (ibid., p. 56). Reference to the four types was maintained throughout several plans for
the future institution of the worldwide organization.
*226 28. The Commission on the League of Nations, set up by the preliminary conference to study the constitution of the
League of Nations, commenced its work on 3 February 1919. The draft covenant, including some provisions concerning
dispute settlement (Arts. 10-13) was presented. The basic idea was that the high contracting parties should ‘in no case re-
sort to armed force without previously submitting the questions and matters involved, either to arbitration or to enquiry
by the Executive Council‘ (Art. 10), and a provision was proposed:
‘Article 11. The High Contracting Parties agree that whenever any dispute or difficulty shall arise between them
which they recognise to be suitable for submission to arbitration, and which cannot be satisfactorily settled by dip-
lomacy, they will submit the whole subject matter to arbitration . . .‘ (Miller, op. cit., p. 234.)
The idea of establishing a Permanent Court of International Justice was also suggested in this draft covenant (Art. 12).
29. At the second reading of the text, on 24 March 1919, Lord Robert Cecil, intending ‘to draw a distinction between jus-
ticiable and non-justiciable disputes‘ (David Hunter Miller, The Drafting of the ovenant, Vol. II, p. 348), suggested an al-
ternative sentence which in fact had previously been proposed by Lord Phillimore more than a year earlier. Lord Robert
Cecil's suggestion read:
‘If a dispute should arise between the States members of the League as to the interpretation of a Treaty, as to any
question of any international law, as to the existence of any fact which, if established, would constitute a breach of
any international obligation, or as to the extent and nature of the reparation to be made for any such breach, if such
dispute cannot be satisfactorily settled by diplomacy, the States members of the League recognise arbitration to be
the most effective and at the same time the most equitable means of settling the dispute; and they agree to submit to
arbitration any dispute which they recognise to be of this nature.‘ (Ibid., p. 352.)
On 10 April, examining the draft covenant as amended by the Drafting Committee, Lord Robert Cecil again stated that
‘it was difficult to lay down a strict rule. For example, one could not say that the question of the interpretation of
a Treaty should be submitted to arbitration in every instance. It might happen that such an interpretation would
involve the honour or the essential interests of a country. In such a case the question should rather be submitted
to examination by the Council of the League. It would be dangerous for the future of the principle of arbitration
to impose it too strictly in a great number of cases.‘ (Ibid., p. 378.)
*227 The final version of the draft covenant was adopted at the last meeting of the Commission on 11 April 1919.
30. The Covenant of the League of Nations contained, with regard to the arbitration or judicial settlement of international
[FN1]
disputes, the following provisions :
‘Article 12

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 136
1. The Members of the League agree that if there should arise between them any dispute likely to lead to a rupture,
they will submit the matter either to arbitration * or to inquiry by the Council . . .
Article 13
1. The Members of the League agree that whenever any dispute shall arise between them which they recognise to be
suitable for submission to arbitration * and which cannot be satisfactorily settled by diplomacy, they will submit the
whole subject-matter to arbitration *.
2. Disputes as to the interpretation of a treaty, as to any questions of international law, as to the existence of any fact
which if established would constitute a breach of any international obligation, or as to the extent and nature of the re-
paration to be made for any such breach, are declared to be among those which are generally suitable for submission
to arbitration*.‘
On 28 April, at the Peace Conference, President Wilson of the United States explained that:
‘The second paragraph of Article XIII is new, inasmuch as it undertakes to give instances of disputes which are gen-
erally suitable for submission to arbitration, instances of what have latterly been called 'justiciable’ questions.‘
(David Hunter Miller, The Drafting of the Covenant, Vol. II, p. 700.)
Thus the League of Nations came to declare that the four types of dispute which Lord Phillimore had originally sugges-
ted were generally suitable for submission to arbitration.
(b) The Statute of the Permanent Court of International Justice
31. Meeting at The Hague, the Committee of Jurists set up pursuant to the first (unquoted) sentence of Article 14 pre-
pared a draft scheme for the institution of the Permanent Court of International Justice which, borrowing the concept of
the four types of dispute, provided for the jurisdiction of the Court as follows:
*228 ‘Article 34
Between States which are Members of the League of Nations, the Court shall have jurisdiction (and this without any
special convention giving it jurisdiction) to hear and determine cases of a legal nature, concerning:
(d) the nature or extent of reparation to be made for the breach of an international obligation;
(e) the interpretation of a sentence passed by the Court.
The Court shall also take cognisance of all disputes of any kind which may be submitted to it by a general or particu-
lar convention between the parties.
In the event of a dispute as to whether a certain case comes within any of the categories above mentioned, the matter
shall be settled by the decision of the Court.‘ (P.C.I.J., Advisory Committee of Jurists, Proces-Verbaux of the Pro-
ceedings of the Committee, p. 679.) (Emphasis added.)
32. The view advanced by the Committee of Jurists encountered objections from several delegates at the Council of the
League of Nations, which dealt with the draft scheme in the course of its sessions from February to October 1920. They
argued that, even if States admitted compulsory jurisdiction in the cases laid down in the suggested article, they might
not go so far as to admit that any question of international law without exception could be submitted to the Court. The re-
port presented by the French representative, Leon Bourgeois, on 27 October 1920 at the 10th Session of the Council in
Brussels, read in part:
‘We do not think it necessary to discuss here the advantages which would result from the system of compulsory jur-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 137
isdiction proposed by the Committee of Jurists with regard to the good administration of international justice and the
development of the Court's authority. But as in reality a modification in Articles 12 and 13 of the Covenant is here
involved, the Council will, no doubt, consider that it is not its duty, at the moment when the General Assembly of the
League of Nations is about to meet for the first time, to take the initiative with regard to proposed alterations in the
Covenant, whose observance and safe keeping have been entrusted to it.
...........................
At the present moment it is most important in the interests of the authority of the League of Nations that differences
of opinion should not arise at the very outset with regard to the essential rules laid down *229 in the Covenant ...‘
(League of Nations, P.C.I.J., Documents concerning the action taken by the Council of the League of Nations under
Article 14 of the Covenant, p. 47.)
Leon Bourgeois suggested that in the Hague draft scheme the Council replace Articles 33 and 34 by a new text, which
was eventually adopted by the Council, as follows:
‘Article 33
The jurisdiction of the Court is defined by Articles 12, 13 and 14 of the Covenant.
Article 34
Without prejudice to the right of the Parties, according to Article 12 of the Covenant, to submit disputes between
them either to judicial settlement or arbitration or to enquiry by the Council, the Court shall have jurisdiction (and
this without any special agreement giving it jurisdiction) to hear and determine disputes, the settlement of which is
by Treaties in force entrusted to it or to the tribunal instituted by the League of Nations.‘ (Ibid., p. 47.)
33. While the Assembly was meeting from 24 November to 7 December 1920 a subcommittee of its Third Committee
made a detailed study of the draft scheme of the Court and suggested:
‘Whatever differences of opinion there may be on the interpretation of the Covenant with regard to the acceptance of
a compulsory jurisdiction within the scope of its provisions, and upon the political expediency of adopting an uncon-
ditionally compulsory jurisdiction in international relations, the Sub-Committee was unable to go beyond the consid-
eration that unanimity on the part of the Members of the League of Nations is necessary for the establishment of the
Court, and that it does not seem possible to arrive at unanimity except on the basis of the principles laid down in the
Council's draft.‘ (Ibid., p. 210.)
The subcommittee devised in fact a modified text intended to formulate as clearly as possible the following ideas:
‘1. The jurisdiction of the Court is in principle based upon an agreement between the Parties. This agreement may be
in the form of a special Convention submitting a given case to the Court, or of a Treaty or general Convention em-
bracing a group of matters of a certain nature.
2. With regard to the right of unilateral arraignment contemplated in the words ('and this without any special agree-
ment giving it jurisdiction') in the Council's draft, the Sub-Committee, by deleting these words, has not changed the
meaning of the draft. In conformity with *230 the Council's proposal, the text prepared by the Sub-Committee ad-
mits this right only when it is based on an agreement between the Parties. In the Sub-Committee's opinion, the ques-
tion must be settled in the following manner: If a Convention establishes, without any reservation, obligatory juris-
diction for certain cases or for certain questions (as is done in certain general arbitration treaties and in certain
clauses of the Treaties of Peace dealing with the rights of minorities, labour, etc.) each of the Parties has, by virtue of
such a treaty, the right to have recourse without special agreement (compromis) to the tribunal agreed upon. On the
other hand, if the general Convention is subject to certain reservations ('vital interests', 'independence', 'honour',

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 138
etc.), the question whether any of these are involved in the terms of the Treaty, being for the Parties themselves to
decide, the Parties cannot have recourse to the International Tribunal without a preliminary agreement (compromis)
...‘ (League of Nations, P.C.I.J., Documents concerning the action taken by the Council of the League of Nations un-
der Article 14 of the Covenant, p. 211.)
The draft scheme prepared by the Council was amended by the subcommittee as follows:
‘Article 36 (Brussels, Art. 33)
The jurisdiction of the Court comprises all cases which the Parties refer to it and all matters specially provided for in
treaties and conventions in force.
Article 37 (Brussels, Art. 34)
When a treaty or convention in force provides for the reference of a matter to a tribunal to be instituted by the
League of Nations, the Court will be such tribunal.‘ (Ibid., p. 218.)
34. In the course of the deliberations of the Third Committee of the First Assembly, however, Mr. Fernandes, the Brazili-
an delegate, introduced the text adopted by the Committee of Jurists but abandoned by the Council (quoted in para. 31
above), which was accompanied by a temporary provision reading:
‘Article
In ratifying the Assembly's decision adopting this Statute, the Members of the League of Nations are free to adhere
to either of the two texts of Article 33. They may adhere unconditionally or conditionally to the Article providing for
compulsory jurisdiction, a possible condition being reciprocity on the part of a certain number of Members, or of
certain Members, or, again, of a number of Members including such and such specified Members.‘ (Ibid., p. 168.)
This proposal was adopted with some amendments. The Third Committee *231 reported in connection with Article 36
that a new provision had been added which:
‘gives power to choose compulsory jurisdiction either in all the questions enumerated in the Article or only in
certain of these questions. Further, it makes it possible to specify the States (or Members of the League of Na-
tions) in relation to which each Government is willing to agree to a more extended jurisdiction.‘ (Ibid., p. 222.)
35. The text as amended by the Third Committee at its last session, on 10 December 1920, was finally adopted, with fur-
ther slight changes, as Article 36 of the Statute of the Permanent Court of International Justice. Thus the Statute read, in
part:
‘Article 36
... The Members of the League of Nations ... may ... declare that they recognize as compulsory ipso facto and
without special agreement ... the jurisdiction of the Court in all or any of the classes of legal disputes concerning:
(d) the nature or extent of the reparation to be made for the breach of an international obligation.‘ (Emphasis added.)
While the Covenant of the League of Nations declared, in general terms, that ‘disputes‘ as enumerated ‘are generally
suitable for submission to arbitration‘, the Statute of the Permanent Court of International Justice provided for optional
acceptance of the Court's jurisdiction for ‘legal disputes concerning‘ the four categories specified in the Covenant.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 139
(iii) The concept of justiciable disputes subsequent to the inception of the Permanent Court of International Justice
36. In the post-war period, particularly during a decade beginning with the mid-1920s, a great number of bilateral treaties
were concluded to unify the procedure of conciliation with the submission of various kinds of international dispute to ar-
bitration or to the newly established Permanent Court of International Justice. In October 1925, at Locarno, Switzerland,
where a treaty of mutual guarantee aimed at maintaining the territorial status quo resulting from the adjustment of the
western frontiers of Germany was initialled, Germany negotiated arbitration treaties with Belgium, Czechoslovakia,
France and Poland, respectively, in which it was stated that:
‘All disputes of every kind between Germany and [the parties] with regard to which the Parties are in conflict as to
their respective rights *232 ... shall be submitted for decision either to an arbitral tribunal or to the Permanent Court
of International Justice ...‘ (Art. I.) (League of Nations Treaty Series, Vol. 54, p. 304.)
The disputes were to ‘include in particular those mentioned in Article 13 of the Covenant of the League of Nations‘ (Art.
1) and be submitted – but only by means of a special agreement – either to the Permanent Court of International Justice
or to an arbitral tribunal (Art. 16).
37. Originating with the Committee on Arbitration and Security which the Preparatory Committee of the Disarmament
Conference established in November 1927, the General Act for Pacific Settlement of International Disputes was ap-
proved by the Ninth Assembly of the League of Nations in 1928 as a compendium of the results produced by a number of
bilateral arbitration or conciliation treaties. As to judicial recourse, it was agreed that ‘All disputes with regard to which
the parties are in conflict as to their respective rights‘ should be submitted for decision to the Permanent Court of Inter-
national Justice. It was understood, however, that these disputes would ‘include in particular those mentioned in Article
36 of the Statute of the Permanent Court of International Justice‘ (Art. 17) (League of Nations Treaty Series, Vol. 93, p.
351).
38. The arbitration treaties concluded by the United States in the years 1928-1930 with as many as 25 countries provided
for the submission to the Permanent Court of Arbitration or to some other competent tribunal of:
‘all differences relating to international matters in which the high contracting parties are concerned by virtue of
a claim of right made by one against the other under treaty or otherwise ... which are justiciable in their nature
by reason of being susceptible of decision by the application of the principles of law or equity‘ (Art. I) (The
American Journal of International Law, Supplement, Vol. 23, p. 197).
A special agreement for the submission was first to be made by the parties in each case. In 1929 the United States con-
cluded at Washington with 19 Latin American States the General Treaty of Inter-American Arbitration, which belonged
to the same type in providing for the obligation of the contracting parties to submit to arbitration:
‘all differences of an international character which have arisen or may arise between them by virtue of a claim of
right made by one against the other under treaty or otherwise ... which are juridical in their nature by reason of
being susceptible of decision by the application of the principles of law‘ (Art. I) (League of Nations Treaty
Series, Vol. 130, p. 140).
*233 The Treaty also provided that the ‘questions of juridical character‘ (Art. 1) would include four types of dispute spe-
cified in Article 13, paragraph 2, of the Covenant of the League of Nations. The formulation of a special agreement, to be
concluded in each case, was to define the particular subject-matter of the controversy (Art. 4).
(iv) Legal disputes found suitable for settlement by the International Court of Justice
39. The United Nations set up the International Court of Justice as ‘the principal judicial organ of the United Nations‘ to
‘function in accordance with the annexed Statute‘ (Charter, Art. 92), but the principal responsibility for the maintenance
of international peace and security is entrusted to the Security Council, which should as a final resort handle a dispute the
continuation of which is likely to endanger the maintenance of international peace and security, while taking cognizance

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 140
of the consideration that ‘legal disputes‘ should as a general rule be referred by the parties to the International Court of
Justice (Charter, Art. 36, para. 3).
40. The 1945 Statute of the present Court, the relevant provision of which is quoted above (para. 20), follows the pattern
of the previous Court except that declarations may be made accepting the jurisdiction of the Court ‘in all legal disputes
concerning ...‘ (Art. 36, para. 2), not ‘in all or any of the classes of legal disputes concerning ...‘, and that the Optional
Clause attached to the protocol of signature of the previous Statute was incorporated in the new Statute (Art. 36, paras. 3
and 4). All that the dropping of the reference to ‘classes‘ of legal dispute indicates is a realization of the redundancy of
this vague expression, while the relocation of the Optional Clause is but a corollary of the permanent integration of the
Court and its Statute into the system of the Charter. Consequently, any suggestion that the present Court possesses a
wider jurisdiction than its predecessor ratione materiae must depend on an assumed evolution in the meaning of the term
‘legal disputes‘.
2. The difficulty of viewing the present case as concerning a ‘legal dispute‘ within the meaning of the Stat-
ute
(i) In general
41. The above survey of the developments behind the provision of Article 36, paragraph 2, of the Statute of the Interna-
tional Court of Justice leads me to the following observations.
42. First, the term ‘legal disputes‘ was defined in some instruments as referring to those disputes which arise
‘by virtue of a claim of right made by one against the other under treaty or otherwise [and] which are juridical in
their nature by reason *234 of being susceptible of decision by the application of the principles of law‘ (e.g., the
1911 General Arbitration Treaties),
or in other cases as those ‘with regard to which the Parties are in conflict as to their respective rights‘ (e.g., the 1925 Lo-
carno Treaties; the 1928 General Act). These definitions should not be overlooked or made light of in interpreting the
term ‘legal disputes‘ as used in the Statute.
43. Secondly, the well-known reservations in the 1903 Anglo-French Treaty concerning vital interests, independence,
honour and third-party interests in connection with referral to arbitration disappeared with the League of Nations.
However, this was only because disputes involving such considerations were thenceforth to be submitted for examination
by the Council, the League's pre-eminently political organ. In the United Nations system, it is likewise the Security
Council which is entrusted with the ultimate function for the peaceful settlement of any dispute the continuance of which
is likely to end nger the maintenance of international peace and security.
44. Thirdly, it should be recalled that, while the draft prepared by the Hague Committee of Jurists was being discussed at
the Brussels Council, the suggestion of the compulsory referral of disputes over any point of international law met with
opposition, as reflected in Leon Bourgeois's report, part of which read:
‘If this view advanced by the Jurisconsults at The Hague is adopted without modification, a considerable advance
has certainly been made, in view of the terms of Article 34. What must be understood, then, by the expression 'any
point of international law’? Even if the States admitted the compulsory jurisdiction in the cases definitely laid down
in the Article, will they consent to go so far as to admit that any question of international law may be submitted to
the Court? Objections of this nature have been raised by several Governments, which have forwarded us their re-
marks on the draft scheme.‘ (League of Nations, P.C.I.J., Documents concerning the action taken by the Council of
the League of Nations under Article 14 of the Covenant, pp. 46-47.)
45. Fourthly, it is important to note that at the First Assembly of the League of Nations the proposal for the compulsory

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 141
referral of ‘legal disputes‘ to arbitration was declared acceptable subject to its voluntary acceptance by each State, as wit-
ness the eventual Article 36 of the Statute. It follows that, despite the provision of the Statute that determination of the
Court's jurisdiction should in case of doubt be in the hands of the Court (Art. 36 (6)), it is to be assumed that when volun-
tarily accepting compulsory*235 jurisdiction a State (the United States in this case) will not only have had in mind its
own concept of what should constitute a justiciable ‘legal dispute‘ under Article 36, paragraph 2, of the Statute but may
legitimately entertain expectations that that concept will if necessary be elicited and respected by the Court.
(ii) Precedents in the previous and present Courts
46. Previous opportunities for testing this assumption have been almost non-existent, as may be demonstrated by a sur-
vey of the past practice regarding the submission of a case under the Optional Clause of the Statutes of the previous and
present Courts. Of more than 20 contentious cases during the period of the Permanent Court of International Justice, the
cases which were brought to the previous Court relying on Article 36, paragraph 2, numbered only seven, among which
three cases – Denunciation of the Treaty of 2 November 1865 between China and Belgium, Losinger and Legal Status of
the South-Eastern Territory of Greenland – were eventually withdrawn, and the Electricity Company of Sofia and Bul-
garia case was not concluded because of the Second World War. Legal Status of Eastern Greenland, Phosphates in Mo-
rocco and Panevezys-Saldutiskis Railway were the only such cases to have remained before the previous Court, and in
the first of these Denmark, the respondent Party, raised no objection to the Court's jurisdiction. The objections raised in
the other two were merely procedural in character; the previous Court, recognizing the objection of the Respondents, de-
clared the applications in both cases inadmissible. There was no single case before the previous Court in which judgment
on the merits was given against a challenge by a Respondent to the Court's jurisdiction under the Optional Clause of the
Statute.
47. Of the ten cases brought before the present Court under Article 36, paragraph 2, prior to the present case, there were
three in which objections regarding jurisdiction and admissibility were not raised by the Respondent: Fisheries, Rights of
Nationals of the United States of America in Morocco and Application of the Convention of 1902 Governing the Guardi-
anship of Infants. In the remaining seven cases: Anglo-Iranian Oil Co., Nottebohm, Certain Norwegian Loans, Right of
Passage over Indian Territory, Interhandel, Aerial Incident of 27 July 1955 and Temple of Preah Vihear, the jurisdiction
of the Court was disputed only for reasons of a procedural nature. The Court, after having rejected the preliminary objec-
tions raised by the Respondents, has proceeded on the merits only in the following three cases: Nottebohm, Right of Pas-
sage over Indian Territory and Temple of Preah Vihear. In these cases, the objections raised by the Respondents were of
a procedural nature not related to the substantive justiciability of the dispute. Prior to the present case, therefore, there
has never been an Article 36, paragraph 2, case before either the previous or the present Court where justiciability was
doubtful because of the substantive nature of the dispute.
*236 (iii) Conclusion
48. In consequence, the fact that the Court or its predecessor entertained a handful of previous cases submitted on the
basis of Article 36, paragraph 2, of the Statute affords absolutely no ground for concluding that voluntary acceptance of
the obligation for submission of legal disputes to the Court's jurisdiction under that Article equates with the submission
of all disputes however politically charged they may be. The United States, though having voluntarily accepted the Op-
tional Clause, appears to be of the view that the present dispute does not fall within the meaning of what is a ‘legal dis-
pute‘ under Article 36, paragraph 2. Even if it did not explicitly contend this during the proceedings on jurisdiction,
which were largely devoted to the jurisdictional position of the Applicant, its reliance on the ‘ongoing armed conflict‘ ar-
gument furnished a clear indication that the Respondent viewed the dispute as ‘not susceptible of decision by the applica-
tion of the principles of law‘ – or, in other words, that the sense of ‘legal dispute‘ had not evolved so far as to embrace

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 142
the subject-matter of the application. Whether this view is right or wrong is beside the point in considering a voluntary
acceptance of jurisdiction.
49. In sum, the Court should note that the meaning of ‘legal disputes‘ is not to be taken separately from the fact that the
Court's jurisdiction over ‘legal disputes‘ can only be accepted voluntarily. The Court is at present not in a position, as it
was in the Aegean Sea Continental Shelf case, to apply an extended concept of the law, one not contemplated at the time
of the filing of the declaration, because by doing so it would risk imposing its jurisdiction in contravention of the volun-
tary character of that instrument, whereas in the case referred to it did so in order to be quite sure of respecting that char-
acter in the case of the Respondent's declaration.
C. Considerations of Judicial Propriety that Should Have Dissuaded the Court from Pronouncing on the Nicaraguan Ap-
plication on the Basis of Article 36, Paragraph 2, of the Statute
1. The Court should not have adjudged the Application because of the considerations of administration of justice – a pre-
liminary issue
50. Even if the foregoing argument (Section B above) is not considered well founded, and if the present dispute is re-
garded as a ‘legal dispute‘ under Article 36, paragraph 2, of the Statute from the procedural point of view, I still believe
that ‘judicial propriety‘ provides another prudential ground for concluding that the Nicaraguan Application as based on
that *237 provision should be declared by the Court as non-justiciable and hence as inadmissible.
51. I do not deny that once a judicial institution is duly seised of a dispute which is not primarily legal, that dispute may
be held justiciable, as a matter of principle. In many systems of domestic law, non liquet is generally rejected, even if a
directly applicable rule of law is lacking, and a judicial court, in relying on the exclusion of non liquet, is in theory able
to pass judgment. The French Civil Code of 1804 states:
‘Le juge qui refusera de juger sous pretexte du silence, de l'obscurite ou de l'insuffisance de la loi, pourra etre pour-
suivi comme coupable de deni de justice.‘ (Art. 4.) (Code civil des Francais, edition originale et seule officielle,
1804, p. 2.)
Speaking of English law, Sir Frederick Pollock in his note on Maine's Ancient Law stated:
‘[English judges] are bound to find a decision for every case, however novel it may be; and that decision, so far as it
goes beyond drawing inferences of fact, will be authority for other like cases in future; therefore it is part of their
duty to lay down new rules if required. Perhaps this is really the first and greatest rule of our customary law.‘
(Maine, Ancient Law, with introduction and notes by Sir Frederick Pollock, 1906, p. 48.)
52. In the case of international law, the Statute of the Permanent Court of International Justice introduced the clause ‘the
general principles of law recognized by civilized nations‘ mainly to avoid a non liquet resulting from the lack of any pos-
itive rules. The Model Rules on Arbitral Procedure prepared by the International Law Commission in 1958 state that ‘the
tribunal may not bring in a finding of non liquet on the ground of the silence or obscurity of the law to be applied‘ (Art.
11) (Yearbook of the International Law Commission, 1958, Vol. II, p. 84). Here it is important to note that the exclusion
of non liquet is connected with the absence of an alternative forum.
53. It is definitely not my intention to have the Court declare, as a matter of principle, that disputes relating to use of
force or intervention are non-justiciable, nor to contend that the Court is incapable of dealing with the present dispute
once it is properly entertained. Yet my opinion is that the fact that the Court can entertain a case once it is properly seised
is a different matter from the suggestion that the Court must exercise jurisdiction. Let me quote a well-known passage
from the 1963 Judgment in the case concerning the Northern Cameroons:
‘In its Judgment of 18 November 1953 on the Preliminary Objection in the Nottebohm case ... the Court had occa-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 143
sion to deal at some *238 length with the nature of seisin and the consequences of seising the Court. As this Court
said in that Judgment: 'the seising of the Court is one thing, the administration of justice is another’. It is the act of
the Applicant which seises the Court but even if the Court, when seised, finds that it has jurisdiction, the Court is not
compelled in every case to exercise that jurisdiction. There are inherent limitations on the exercise of the judicial
function which the Court, as a court of justice, can never ignore. There may thus be an incompatibility between the
desires of an applicant, or, indeed, of both parties to a case, on the one hand, and on the other hand the duty of the
Court to maintain its judicial character. The Court itself, and not the parties, must be the guardian of the Court's judi-
cial integrity.‘ (I.C.J. Reports 1963, p. 29.)
54. It must be added that the Court should not allow any sentiment that States ought to accept its jurisdiction to affect its
perception of the voluntary nature of such acceptance or its caution not to overstep the limits of individual acts of accept-
ance. Thus, for example, the phenomenon of the so-called self-judging reservation may be objectively dubious and de-
plorable, but it must nonetheless be respected as a symptom of the importance attached by the declarant State to the vol-
untary character of its submission to the Court. It therefore behoves the Court to exercise that caution with special care in
dealing with States that have made such reservations – and the United States is notoriously one. In pointing this out,
however, I must not be understood as suggesting that the subject-matter of the present case belongs in any way to the ex-
clusive domestic jurisdiction of that country; clearly it does not, and the United States has not maintained that it does.
2. The concept of the non-justiciable ‘political dispute‘ – parallelism of legal and political disputes
55. As stated above (sec. B,1), it has throughout this century been considered that any dispute which a State was prepared
voluntarily to submit to judicial settlement should be one where the parties are in conflict as to their respective rights, or
where differences arise by virtue of a claim of right made by one against the other; and disputes such as the present one,
at least where it concerns allegations of threat or use of force and intervention, have not been deemed to fall into this cat-
egory. The distinction between ‘legal‘ and ‘non-legal‘ (or political) is certainly vague inasmuch as, on the one hand, a
legal dispute may eventually give rise to political friction and tension and, on the other, any political dispute is almost
bound to contain certain aspects of a legal nature; yet in the 60-year history of the past and present Courts, issues regard-
ing matters of an overwhelmingly political nature have never been dealt with by way of adjudication before the Court on
the basis of Article 36, paragraph 2, of the Statute.
*239 56. The drafters of the Covenant of the League of Nations were well aware that those disputes which could have
been excluded from the Court's jurisdiction in terms of the well-known four reservations of the 1903 Treaty could more
properly be disposed of in the international political field, not by a neutral third party, but by a highly political organ
such as the Council, as rightly pointed out by Lord Robert Cecil at the drafting of the Covenant of the League of Nations,
when he stated that:
‘One could not say that the question of the interpretation of a Treaty should be submitted to arbitration in every in-
stance. It might happen that such an interpretation would involve the honour or the essential interests of a country. In
such a case the question should rather be submitted to examination by the Council of the League.‘ (David Hunter
Miller, The Drafting of the Covenant, Vol. II, p. 378.)
The League of Nations accordingly initiated a means of having its supreme political organ, that is, the Council, offer a
conciliation procedure for the fundamental frictions and tensions existing among nations, apart from some differences of
view over certain specific items covered by the terms ‘disputes as to the interpretation of a treaty, as to any question of
international law, ...‘ (Covenant of the League of Nations, Art. 13, para. 2).
57. There can be no doubt that this parallelism was essentially maintained by the United Nations. While Article 36 of the
United Nations Charter states that ‘legal disputes should as a general rule be referred by the parties to the International

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 144
Court of Justice‘, this certainly should not be interpreted as implying that the term ‘legal disputes‘ covers disputes which
are non-justiciable because of their overwhelmingly political nature. In other words, it is normal to assume that the term
‘legal disputes‘ refers to disputes whose primary characteristic it is to be ‘legal‘. Otherwise – since practically every dis-
pute has a ‘legal‘ aspect as at least a secondary characteristic –there would have been no reason to include the word
‘legal‘ in the provision. Furthermore, the qualifying phrase ‘as a general rule‘ serves to stress the necessity of not jump-
ing to the conclusion that the presence of a legal element in a dispute attracts the application of the provision. For it is
well known that the phrase in question, just like ‘in principle‘, functions as a pointer to the possibility of exceptions and
borderline cases. Moreover, it may be observed that, in practice, the parties to international legal disputes do not, as a
general rule, refer them to the Court, while, for its part, the Security Council has almost invariably failed to make recom-
mendations for such referral; this may be deplored, but should not be ignored as an indication of the relative cogency of
the rule.
58. Under the United Nations system, where the maintenance of international peace and security falls within the func-
tions of the Security *240 Council, resort to force as a means of self-defence is permissible only until such time as the
Security Council has taken the necessary measures, and any measures taken by the member State in the exercise of its
right of self-defence must be reported immediately to the Security Council. This would mean, in my view, that a dispute
in which use of force is resorted to is in essence and in limine one most suitable for settlement by a political organ such
as the Security Council, but is not necessarily a justiciable dispute such as falls within the proper functions of the judicial
organ.
59. I certainly am not suggesting any principle that, once a dispute has been brought before the Security Council, or con-
sidered through regional negotiations, it cannot or should not be dealt with by the Court. The 1984 Judgment was quite
correct in stating that ‘the fact that the matter is before the Security Council should not prevent it being dealt with by the
Court and both proceedings could be pursued pari passu‘ (I.C.J. Reports 1984, p. 433). Yet the international community,
or the States Members of the League of Nations or the United Nations, have always been aware that certain disputes are
more properly resolved by a means other than judicial settlement, that is, by the Council in the case of the League of Na-
tions and the Security Council or the General Assembly in the case of the United Nations, or by some other means. The
parallel scheme pursued under the League of Nations and the United Nations is surely confirmed by a scrutiny of the pre-
cedents, in the previous and present Courts.
60. The case of United States Diplomatic and Consular Staff in Tehran has often been referred to as an instance of a
highly political issue having been dealt with by the present Court. Yet the Court then stood seised of the United States
Application not because of the Optional Clause, i.e., Article 36, paragraph 2, of the Statute, but on the basis of some mul-
tilateral and bilateral treaties to which both Iran and the United States were signatory parties, thus because of Article 36,
paragraph 1, of the Statute. It was therefore to the subject-matter of those treaties that the Court had to look in order to
determine the admissibility of the Application, and it did not have to involve itself, for that particular purpose, in any
general considerations of justiciability or propriety.
3. Incomplete picture of the dispute as portrayed by the Court
(i) Lack of sufficient means for fact-finding
61. The subject-matters comprised in the dispute at issue are related to the resort to force and intervention that the United
States has allegedly undertaken against Nicaragua and to the United States allegation that these measures have been
taken as a means of collective self-defence against actions of Nicaragua. Yet the picture which the Court has depicted for
the present conflict between the two States seems to be incomplete. The Judgment hinges to a critical extent on the mere
assumptions that, while *241 there may have been a flow of arms from Nicaragua to El Salvador prior to 1981, no signi-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 145
ficant flow of arms has occurred since that time, and that there has never been any use of force by Nicaragua against El
Salvador amounting, in the Court's interpretation, to armed attack. The Judgment states:
‘The Court merely takes note that the allegations of arms-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.‘ (Para. 153.) (Emphasis added.)
‘[The Court] can only interpret the lack of evidence of the transborder arms-flow in one of the following two ways
...‘ (Para. 154.) (Emphasis added.)
‘[T]he Court is satisfied that, between July 1979, the date of the fall of the Somoza 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 sig-
nificant scale, or that the Government of Nicaragua was responsible for any flow of arms at either period.‘ (Para.
160.) (Emphasis added.)
The Court has thus frequently had to admit that the evidence, particularly concerning the relevant facts attributable to
Nicaragua, is not sufficient.
62. The assertions in the Judgment, based on the evidence presented to the Court, may – or may not – be unchallengeable
from the point of view of the Court's procedure on evidence. Be that as it may, the materials available through official
publications of the United States Government suggest completely opposite facts. The 13 May 1983 Report of the Per-
manent Select Committee on Intelligence of the House of Representatives, presented by Nicaragua as evidence, reiterated
its early finding that:
‘The insurgents [in El Salvador] are well trained, well equipped with modern weapons and supplies, and rely on the
use of sites in Nicaragua for command and control and for logistical support.‘ (P. 5.)
More concretely, the document Background Paper: Central America of 27 May 1983 stated in section III that:
‘Throughout 1981, Cuba, Nicaragua and the Soviet bloc aided in rebuilding, rearming and improving the Salvadoran
guerrilla forces, which expanded their operations in the fall ... The FMLN headquarters in Nicaragua evolved into an
extremely sophisticated command-and-control*242 center – more elaborate in fact, than that used by the Sandinistas
against Somoza. Guerrilla planning and operations are guided from this headquarters, where Cuban and Nicaraguan
officers are involved in command and control. The guidance flows to guerrilla units widely spread throughout El
Salvador. The FMLN headquarters in Nicaragua also coordinates propaganda and logistical support for the insur-
gents, including food, medicines, clothing, money and –most importantly – weapons and ammunition.‘ (P. 6.)
‘During the first 3 months of 1982, arms shipments into El Salvador surged. Cuban-Nicaraguan arms flowed through
Honduras into El Salvador by sea, air, and overland routes. In February, for example, Salvadoran guerrilla groups
picked up a large shipment on the Salvadoran coast, near Usulutan, after the shipment arrived by sea from
Nicaragua.‘ (P. 7.)
The document Background Paper. Nicaragua's Military Build-up and Support for Central American Subversion of 18 Ju-
ly 1984 offered extensive accounts of ‘The Nicaraguan Supply Operations for the Salvadoran Guerrillas‘, ‘Sources of
FMLN Armaments‘, ‘Training, Communications, and Staging of the FMLN‘, ‘The International Connection‘, ‘The Sig-
nificance of the Subversive Network‘ and others. The conclusions of this document read in part:
‘Guerrilla and Sandinista defectors maintain that the Nicaraguan regime provides the Salvadoran guerrillas commu-
nications centers, safehouses, storage of arms, shops for vehicles, and transportation of military supplies ...
Training of Central American guerrillas has taken place in Nicaragua, Cuba, and Vietnam.
Because of the subversive system involving a number of governments and terrorist organizations centered in
Nicaragua, the Sandinista Government is able to threaten neighboring countries and to carry out the threats, indir-
ectly, through one or other of the organizations.‘ (P. 37.)

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 146
‘Revolution Beyond Our Borders‘ – Sandinista Intervention in Central America issued in September 1985, addressed to
the library of the Court during the oral proceedings on the merits and mentioned in the Judgment (para. 73), reads in part:
‘The Sandinistas can no longer deny that they have engaged and continue to engage in intervention by:
*243 –Providing the arms, training areas, command and control facilities, and communications that transformed dis-
organized factions in El Salvador into a well-organized and -equipped guerrilla force of several thousand responsible
for many thousands of civilian casualties and direct economic damages of over $1 billion.‘ (P. 31.)
63. In addition, these elements supplied by the United States were supported in El Salvador's Declaration of Intervention
filed with the Court on 15 August 1984, which stated:
‘A blatant form of Nicaraguan aggression against El Salvador is the Sandinista involvement in supply operations for
the FMLN subversives. 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.)
‘The subversives, aided and abetted by their allies in Nicaragua, have destroyed farms, businesses, bridges, roads,
dams, power sources, trains and buses. They have mined our roads in an attempt to disrupt our economy and with the
purpose of preventing our citizens from participating effectively in the national elections. The total of the damages
produced by the subversion to the Salvadorian economy since 1979 to the end of 1983 has been conservatively es-
timated to amount to approximately US$800 million.‘ (Para. XI.)
‘up to this moment, Nicaragua continues to be the principal source of material assistance to the subversives
(munitions, arms, medical supplies, training, etc.) in preparation for the expected general summer offensive, pre-
dicted by the very same FMLN‘ (Para. XIII).
64. The clear discrepancy thus revealed in the assessment of the facts mainly derives from three elements: first, that no
counter-claim has ever been presented by the United States againsts Nicaragua (see (ii) below); secondly, that El Sal-
vador was not allowed to intervene in this case when it wished (ibid.); thirdly, that the United States was absent from the
whole of the proceedings on the merits (see (iii) below). These missing elements were of such potential importance that
the Court was ill-advised to rely on certain evidence which, had these missing elements been present, would undoubtedly
have been tested in a normal adversarial framework. Thus, while I am in no way attempting to suggest that conclusions
disseminated by the United States Government outside the courtroom should be accepted as evidence, it is in my view
beyond any doubt that the picture of the present dispute painted by the Court is far from the reality. That is clear even if
one confines oneself to a scrutiny of the evidence which the United States duly submitted in 1984 together with its
Counter-Memorial*244 on jurisdiction and admissibility –evidence to which the Judgment barely alludes. I enlarge upon
this view in the following subsections.
(ii) Nicaragua's Application reflecting only one side of the dispute
65. If one notes that the conflict in progress between Nicaragua and the United States is not simply one involving accusa-
tions levelled by Nicaragua against the United States, but that the accusations made by the United States against
Nicaragua may be claimed to be technically not at issue in this case, brought as it is by the one side, and in the absence of
formal submissions by the other, it should also be noted that the true facts may have remained hidden behind the scenes.
It may be contended that such a problem could have been properly solved if the United States had presented a counter-
claim in this case or El Salvador had been allowed to participate; but the actual situation to be faced is simply that the
United States did not bring a counter-claim – whether it could have, under the Statute, in the present case is another mat-
ter – and that the Court, in its Order of 4 October 1984, denied El Salvador the right to participate when it wished.
66. Thus I would like here to take the opportunity of expressing regret that, with regard to the attempt of El Salvador to
intervene in the earlier phase of the present case, I took a negative position towards granting that State a hearing;

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 147
however, as I stated in my separate opinion attached to the Order of 4 October 1984, I did so only for ‘purely procedural
reasons‘. At any rate, the situation resulting from the absence of any counter-claim by the United States and the frustra-
tion, at that stage, of El Salvador's intervention effectively precluded the Court from obtaining a complete picture of the
dispute in all the ramifications needed to determine the validity of the United States claim of acting in collective self-
defence.
(iii) Non-participation of the United States in the proceedings – Article 53 of the Statute
67. In the present case, Nicaragua presented a great amount of evidence to the Court and asked for five witnesses to be
heard, but it would certainly not have been expected to provide evidence unfavourable to itself. Owing to the United
States failure to participate in the proceedings, the evidence presented by Nicaragua was not challenged, and the wit-
nesses were not subjected to cross-examination, although questions were put from the bench. Moreover, Nicaragua was
not obliged to and in fact did not make any comment upon several relevant United States documents, some duly depos-
ited with the Court in 1984.
68. Here I wish to consider the spirit behind the Statute relevant to this *245 problem. What is laid down in the first para-
graph of Article 53 of the Statute originates in a general rule of domestic law. In civil cases in domestic society, the ob-
ligation of the defending party to appear before and be subject to the jurisdiction of the court is, in principle, not dis-
puted: and the rule has been established in domestic society that the simple fact of non-appearance of a defendant allows
the court to deliver a judgment in favour of the plaintiff. However, inter-State issues in dispute before an international ju-
dicial court are placed in a different legal environment in that the jurisdiction of the Court is based upon the consent of
sovereign States and compulsory jurisdiction is lacking. The second paragraph of Article 53 is therefore drafted so as to
prevent the absolute application of the above rule of domestic law. This provision, whereby the Court is not allowed to
pronounce judgment in favour of an applicant for the simple reason that the respondent has not appeared, is unique in
procedure before an international judicial forum.
69. This does not however suggest that the Court is required to establish proprio motu facts on behalf of the absent re-
spondent, or to assume the mantle of a defending counsel. The way in which the Judgment proposes to handle the evid-
ence and information available to it may be correct under the Statute, and the Judgment is right in stating that ‘the party
which declines to appear cannot be permitted to profit from its absence, since this would amount to placing the party ap-
pearing at a disadvantage‘ (para. 31). Yet Article 53 by no means prohibits the Court from endeavouring to find facts
proprio motu, and the facts ascertained by the Court through the procedure of evidence under its interpretation of Article
53 of the Statute and Article 58 of the Rules of Court do not necessarily reflect the true situation of the dispute as a
whole. The Court should therefore have been wary of over-facile ‘satisfaction‘ as to the facts, and perhaps should not
have ventured to deliver a Judgment on the basis of such unreliable sources of evidence.
D. Concluding Remarks on Non-Justiciability
70. The present case is characterized by the fact that the dispute at issue, not being a legal dispute within the demon-
strable meaning of Article 36, paragraph 2, of the Statute, is one which the Respondent had never imagined as falling un-
der the jurisdiction which it had voluntarily accepted. To point this out is not to nullify but to clarify Article 36, para-
graph 2, of the Statute. It must be realized that, in accepting the Court's jurisdiction under Article 36, paragraph 2, of the
Statute, States express their readiness to accept the Court's decision in disputes the scope of which is limited to the issue
as to whether or not the right which the Applicant asserts has a ground in international law. A number of disputes of
political significance which contain certain legal implications have been reported from every corner of the world for the
past six decades, both prior and subsequent to the Second World War. Yet they have not been treated as justiciable *246

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 148
disputes subject to compulsory jurisdiction before the Court or its predecessor under the Optional Clause of the Statute.
How then could this particular case have come to be singled out? Is it because the Court has managed to assume jurisdic-
tion in the present case, in spite of the objections of the United States, through a questionable loophole in Article 36,
paragraph 2, of the Statute (not to speak of the questionable loophole which the Court drilled into Article 36, paragraph
5), when jurisdiction should have been based in principle on the sovereign consent or will of the respondent State?
71. A second characteristic of the present case is that the facts the Court could elicit by examining the evidence under the
conditions of Article 53 of the Statute were far from sufficient to show a complete picture of the dispute, because the is-
sues placed before the Court were limited to aspects significantly narrower than the whole.
72. Considering these two characteristics together, I came to the conclusion that it would not be consonant with judicial
propriety for the Court to entertain Nicaragua's Application on the basis of the Optional Clause of the Statute. The
Court's appropriation of a case against the wish of a respondent State under these circumstances will distort the genuine
solution of the dispute. I neither undervalue the sincere intentions of Nicaragua in bringing a dispute of such a massive
scale to the Court under the Optional Clause of the Statute nor necessarily support the activities which the United States
is pursuing against Nicaragua. In my opinion, however, judicial propriety dictates that the correct manner for dealing
with the dispute would have been, and still may prove to be, a conciliation procedure through the political organs of the
United Nations or a regional arrangement such as the Contadora Group, and not reference to the International Court of
Justice, whose function, which is limited to the purely legal aspect of disputes, has heretofore not been exceeded.
III. BREACH OF OBLIGATIONS UNDER THE 1956 TREATY OF FRIENDSHIP, COMMERCE AND NAVIGATION
– THE COURT'S APPROPRIATION OF THE CASE UNDER ARTICLE 36, PARAGRAPH 1, OF THE STATUTE
A. The Court's Jurisdiction Granted by Article XXIV, the Compromissory Clause, of the 1956 Treaty
73. The contention that the Court should not be seised of the Nicaraguan Application in so far as it is based on Article 36,
paragraph 2, of the Statute does not preclude the Court's seisin on the basis of Article 36, *247 paragraph 1. The term ‘all
matters‘ to be comprised by the jurisdiction of the Court under Article 36, paragraph 1, of the Statute is different from
‘all legal disputes‘ under Article 36, paragraph 2, since the former, ‘provided for in the Charter of the United Nations or
in treaties and conventions in force‘, are specified in concrete terms in each instrument, no matter whether legal or polit-
ical, and thus there will be no supervening question of justiciability, as I stated above (para. 60) in connection with the
case of United States Diplomatic and Consular Staff in Tehran.
74. In fact, the 1956 Treaty of Friendship, Commerce and Navigation was not mentioned at all in Nicaragua's Applica-
tion, even though the compromissory clause of the Treaty reads:
‘Article XXIV
2. Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily ad-
justed by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by
some other pacific means.‘
Nevertheless, considering that
‘the fact that the 1956 Treaty was not invoked in the Application as a title of jurisdiction does not in itself con-
stitute a bar to reli nce being placed upon it in the Memorial‘ (I.C.J. Reports 1984, p. 426),
the Court found in the operative parts of its 1984 Judgment that it had
‘jurisdiction to entertain the Application ... in so far as that Application relates to a dispute concerning the inter-
pretation or application of the [1956] Treaty of Friendship, Commerce and Navigation‘ (ibid., p. 442, para. 113

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 149
(1) (b)).
With regard to a precondition of adjustment by diplomacy, the Court was of the view in 1984 that:
‘it does not necessarily follow that, because a State has not expressly referred in negotiations with another State
to a particular treaty as having been violated by conduct of that other State, it is debarred from invoking a com-
promissory clause in that treaty‘ (ibid., p. 428).
In 1984, the Court thus confirmed its jurisdiction under the 1956 Treaty on ‘any dispute between [Nicaragua and the
United States] as to the interpretation or application of the Treaty‘.
*248 B. The Court's Partial Reversion to Jurisdiction under Article 36, paragraph 2, of the Statute in Relation to the
Treaty
75. If the Court remained duly seised of this case, it was in my view only because the Court's jurisdiction was granted by
virtue of Article XXIV of the 1956 Treaty under Article 36, paragraph 1, of the Statute. I further believe that, irrespective
of my arguments in opposition to the Judgment, expounded in Parts I and II above, to the effect that the Court should
have ceased to entertain the Nicaraguan Application in so far as it is based on Article 36, paragraph 2, of the Statute, the
Court has erred in its handling of this Treaty even within the bounds of the jurisdiction under Article 36, paragraph 1, of
the Statute which it recognized in 1984 to be the proper basis for its consideration of this Treaty.
76. The Court first identifies ‘the direct attacks on ports, oil installations, etc.‘ and ‘the mining of Nicaraguan ports‘ as
activities of the United States ‘which are such as to undermine the whole spirit of‘ the 1956 Treaty (para. 275); referring
to ‘the acts of economic pressure‘, the Judgment also states that
‘such an abrupt act of termination of commercial intercourse as the general trade embargo of 1 May 1985 will
normally constitute a violation of the obligation not to defeat the object and purpose of the treaty‘ (para. 276).
In the Court's view these activities on the part of the United States ‘were violations of customary international law‘ (para.
274). Thus the Court attempts to dissociate these issues from the compromissory clause of the 1956 Treaty, and states in-
stead that this particular provision (which, as I have just pointed out, the Judgment in 1984 referred to as a basis for the
Court's jurisdiction) does not constitute ‘a bar to examination of Nicaragua's claims‘ (para. 274). The Judgment further
states that these violations of customary international law cannot be justified under Article XXI (that is, an exclusion
clause) of the Treaty.
77. The Judgment then speaks of breaches of concrete provisions of the Treaty, and maintains that
‘the mining of the Nicaraguan ports by the United States is in manifest contradiction with the freedom of navig-
ation and commerce guaranteed by Article XIX, paragraph 1, of the 1956 Treaty‘ (para. 278)
and that the trade embargo declared by the United States Government on 1 May 1985 ‘constituted a measure in contra-
diction with Article XIX of the 1956 FCN Treaty‘ (para. 279). The relevant provisions, quoted in the Judgment, read:
*249 ‘Article XIX
1. Between the territories of the two Parties there shall be freedom of commerce and navigation.
...............................
3. Vessels of either Party shall have liberty, on equal terms with vessels of the other Party and on equal terms with
foreign commerce and navigation ...‘
78. The Court comes to a conclusion that

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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 150
(para. 280).
Thus the Judgment appears to be very confused, as it partially reverts to the Court's jurisdiction under Article 36, para-
graph 2, of the Statute by speaking of the customary law rule not to defeat the object and purpose of a treaty despite the
fact that it, quite properly, adjudges breaches of the terms of the 1956 Treaty on the basis of Article 36, paragraph 1.
C. Misconception of the Customary-Law Rule not to Defeat the ‘Object and Purpose‘ of a Treaty
79. It appears to me that the Court exceeds its powers in examining the question of a ‘duty not to deprive the 1956 FCN
Treaty of its object and purpose‘ (para. 280). The ‘undermin[ing of] the whole spirit‘ (para. 275) of a treaty or ‘violation
of the obligation not to defeat the object and purpose of‘ (para. 276) a treaty is not tantamount to specific breach of the
treaty obligations. But it is the fulfilment of those obligations, and of those alone, that may be subject to the Court's juris-
diction under Article XXIV, the compromissory clause in the Treaty. The Court, therefore, should simply have taken a
decision as to whether the United States had breached the terms of the 1956 Treaty and thus incurred responsibility for
the violation of international law.
80. The Court appears to have been misled by speaking of the customary law rule concerning respect for ‘the whole spir-
it‘ or ‘the object and purpose‘ of the treaty. The term ‘the object and/or purpose of the treaty‘ is referred to several times
in the 1969 Vienna Convention on the Law of Treaties but only for the purpose of indicating first, that a reservation to a
treaty is impermissible unless it is compatible with ‘the object and purpose of the treaty‘ (Art. 19), or, second, that multi-
lateral treaties may only be modified as between certain of the parties if the modification ‘does *250 not relate to a provi-
sion, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a
whole‘ (Art. 41), and, third, in connection with the termination or suspension of the operation of a treaty as a con-
sequence of its breach. The Convention stipulates in the latter connection that:
‘Article 60
1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for
terminating the treaty or suspending its operation in whole or in part.
...............................
3. A material breach of a treaty, for the purpose of this article, consists in:
...............................
(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.‘
Here it is important to emphasize the reference to the violation of a provision in paragraph 3 (b). All that the Convention
is here seeking to establish is that there is a degree of such violation justifying termination or suspension, and that the
touchstone of that degree is that the provision violated should be essential to the accomplishment of the treaty's object
and purpose. There is no suggestion that the undermining of the object and/or purpose, independently of any breach of a
provision, would be tantamount in itself to a violation of the Treaty.
81. Thus the Court appears to have misinterpreted the words ‘the object and purpose‘ of a treaty, as introduced by the
1969 Convention on the Law of Treaties in a completely different context. Independently of that Convention, it is noted
that the Court attributes to Nicaragua an argument to the effect that abstention from conduct likely to defeat the object
and purpose of a treaty is an obligation implicit in the principle pacta sunt servanda. However, the Judgment does not
make it clear whether it is espousing this point of view. In any case, I would like to take this opportunity of indicating my
own understanding of this principle, which to my mind requires compliance with the letter of obligations subscribed to,
and not necessarily the avoidance of conduct not expressly precluded by the terms of the given treaty. It may furthermore
be asked where the jurisdiction granted by a treaty clause would ever end if it were held to entitle the Court to scrutinize

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 151
any act remotely describable as inimical to the object and purpose of the treaty in question. The ultimate result of so
sweeping an assumption could only be an increasing reluctance on the part of States to support the inclusion of such
clauses in their treaties.
82. All this may be said without in any way condoning or minimizing the gravity of any action which does in fact thwart
the purpose of a treaty.
*251 D. Breaches of the Terms of the 1956 Treaty
1. Breaches of Article XIX of the Treaty
83. If the Court is duly seised of Nicaragua's Application on the basis of Article 36, paragraph 1, of the Statute, the Court
should have more clearly declared what United States actions, unjustifiable by reference to Article XXI (to which I shall
refer in paras. 85-89) of the 1956 Treaty of Friendship, Commerce and Navigation, constituted breaches of the treaty ob-
ligations incumbent upon the United States under specific provisions of that Treaty. The Judgment refers in its reasoning
to a few activities of the United States as constituting breaches of the 1956 Treaty. As stated above (para. 77), the laying
of mines in early 1984 and the trade embargo on 1 May 1985 are thus mentioned.
84. The Judgment does not in its reasoning identify any other types of action taken by the United States as constituting
breaches of treaty obligations under the Treaty. In the operative part of the Judgment, however, the Court lists not only
‘laying mines‘ (para. 292 (7)) and the ‘general embargo on trade‘ (para. 292 (11)) but also ‘the attacks on Nicaraguan ter-
ritory‘ (ibid.) as breaches of the United States obligations under Article XIX of the Treaty. No reasoning is given as to
how the attacks on Nicaraguan territory constituted a violation of that Article, which is exclusively devoted to matters of
maritime commerce.
2. Applicability of Article XXI of the Treaty
85. The question which remains is whether, in case the United States has breached the provisions of Article XIX of the
1956 Treaty, these actions could have been justified for the reasons specified in Article XXI of the Treaty, which
provides:
‘1. The present Treaty shall not preclude the application of measures:
...............................
(c) regulating the production of or traffic in arms, ammunition and implements of war, ...
(d) necessary to fulfil the obligations of a Party for the maintenance or restoration of international peace and secur-
ity, or necessary to protect its essential security interests.‘
The Court's treatment of this provision involves, in my view, a non sequitur when it states:
‘The question thus arises whether Article XXI similarly affords a defence to a claim under customary international
law based on allegation*252 of conduct depriving the Treaty of its object and purpose if such conduct can be shown
to be 'measures ... necessary to protect’ essential security interests.‘ (Para. 271.)
Article XXI is meant, in my view, to absolve either treaty partner from responsibility in the event of its having applied
certain measures which, had they not possessed the character described, would have conflicted with any obligations im-
posed in any provisions of the Treaty, and not to afford ‘a defence to a claim under customary international law‘ as the
Judgment states.
86. I must now, for the sake of clarity, recapitulate the argument of the Judgment in respect of Article XXI. Considering
‘whether the exceptions in Article XXI, paragraphs 1 (c) and 1 (d), ... may be invoked to justify the acts complained of‘,
the Judgment includes in these acts ‘the direct attacks on ports, oil installations, etc.; the mining of Nicaraguan ports; and
the general trade embargo of 1 May 1985‘ (para. 280). The ‘direct attacks on ports, oil installations, etc.‘, which were not

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 152
mentioned at all as constituting breaches of the terms of the 1956 Treaty in any preceding part of the Judgment, are sud-
denly placed in this context.
87. As the Court finds that ‘laying mines‘ and the ‘general trade embargo‘ constitute violations of Article XIX, it has to
examine whether these acts were justifiable or not under Article XXI. The Court considers that
‘the mining of Nicaraguan ports ... cannot possibly be justified as 'necessary’ to protect the essential security in-
terests of the United States‘ (para. 282).
With regard to the trade embargo, the Court is also ‘unable to find that the embargo was 'necessary’ to protect those in-
terests‘ (para. 282). In conclusion, the Judgment suggests that ‘Article XXI affords no defence for the United States in
respect of any of the actions here under consideration‘ (ibid.). The Judgment states:
‘Since no evidence at all is available to show how Nicaraguan policies had in fact become a threat to 'essential secur-
ity interests' in May 1985, when those policies had been consistent, and consistently criticized by the United States
for four years previously, the Court is unable to find that the embargo was 'necessary’ to protect those interests.‘
(Para. 282.)
88. Now, whatever the situation with regard to the laying of mines (see para. 89 below), I totally fail to understand what
the Court has attempted to contend in connection with the trade embargo ordered on 1 May 1985. From my point of
view, the United States decision on a trade embargo, *253 quite unlike that on laying of mines, is open to justification
under Article XXI. Trade is not a duty of a State under general international law but may only be a duty imposed by a
treaty to which that State is a party, and can be suspended under certain circumstances expressly specified in that treaty.
In fact, the United States, when declaring a trade embargo on 1 May 1985, did not announce its reliance on this particular
provision of the Treaty, but, instead, gave notice on the same day to terminate the Treaty. Even so, I am inclined to main-
tain that, in principle, the trade assured by Article XIX, paragraph 3, of the Treaty, could also justifiably have been sus-
pended in reliance on another provision, Article XXI, of the same Treaty.
89. ‘Laying mines‘ is totally different, in that it is illegal in the absence of any justification recognized in international
law, while Article XXI of the Treaty, being simply one provision in a commercial treaty, can in no way be interpreted to
justify a State party in derogating from this principle of general international law. I must add that this action did not meet
the conditions of necessity and proportionality that may be required as a minimum in resort to the doctrine of self-de-
fence under general and customary international law. I thus conclude that, under the jurisdiction granted to the Court by
Article XXIV of the 1956 Treaty, the Court should have found the United States responsible only for violation of Article
XIX by laying mines in Nicaraguan waters. It was for this reason only that I voted for subparagraph (14) in the operative
clause.
IV. SUPPLEMENTARY OBSERVATIONS
90. Since I hold the view that the Court should have dismissed the Nicaraguan Application so far as it is based on Article
36, paragraph 2, of the Statute, I have refrained from making comments on the doctrines of non-use of force, non-
intervention, etc., which the Court has expounded. However, I would like to express just one of my concerns, namely that
the Court was so precipitate in giving its views on collective self-defence justifying the use of force which would other-
wise have been illegal.
91. The term ‘collective self-defence‘, unknown before 1945, was not found in the Dumbarton Oaks proposals which
were prepared by the four big Powers to constitute a basis for a general international organization in the post-war period.
The deliberations on Chapter VIII, Section C, of the Dumbarton Oaks proposals concerning regional arrangements were
entrusted, at the San Francisco Conference in 1945, to Commission III (Security Council), Committee 4 (Regional ar-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 153
rangements). On 17 May 1945, in this Committee, the United States representative observed that his delegation was ‘now
prepared to submit a formula regarding the relationship of regional agencies to the world Organization‘ (United Nations
*254 Conference on International Organization, Vol. 12, p. 674). This United States formula had already been announced
by Stettinius, the United States Secretary of State, on 15 May 1945 as follows:
‘As a result of discussions with a number of interested delegations, proposals will be made to clarify in the Charter
the relationship of regional agencies and collective arrangements to the world Organization.
These proposals will:
...............................
2. Recognize that the inherent right of self-defense, either individual or collective, remains unimpaired in case the
Security Council does not maintain international peace and security and an armed attack against a member state oc-
curs ...
The second point will be dealt with by an addition to chapter VIII of a new section substantially as follows:
Nothing in this Charter impairs the inherent right of self-defense, either individual or collective, in the event that the
Security Council does not maintain international peace and security and an armed attack against a member state oc-
curs ...‘ (Documents on American Foreign Relations, Vol. VII, 1944-1945, p. 434.) (Emphasis added.)
92. On 23 May 1945, a subcommittee on the Amalgamation of Amendments unanimously recommended to Committee 4:
‘2. That a new paragraph be inserted into the language of the Dumbarton Oaks Proposals, in accordance with a fur-
ther suggestion in the United States proposal for the amalgamation of amendments to Chapter VIII, Section C, read-
ing as follows:
'Nothing in this Charter impairs the inherent right of individual or collective self-defense if an armed attack occurs
against a member state, until the Security Council has taken the measures necessary to maintain international peace
and security ...'‘
(United Nations Conference on International Organization, Vol. 12, p. 848.) (Emphasis added.)
93. Committee 4, at its fourth meeting on 25 May 1945, unanimously approved the following decision:
‘That a new paragraph be inserted in the text of the Dumbarton Oaks Proposals, to read as follows:
'Nothing in this Charter impairs the inherent right of the individual or collective self-defense if an armed attack oc-
curs against a member *255 state, until the Security Council has taken the measures necessary to maintain interna-
tional peace and security ...'‘ (United Nations Conference on International Organization, Vol. 12, p. 680.) (Emphasis
added.)
The emphasized part of this quotation was expressed in the French version as follows:
‘Aucune disposition de la presente Charte ne peut porter atteinte au droit naturel de tout Etat Membre de se defendre,
par une action individuelle ou collective, contre une agression armee.‘ (Ibid., p. 691.)
In connection with this decision, the Chairman, speaking as the delegate of Colombia, made the following statement:
‘The Latin American Countries understood, as Senator Vandenberg [a delegate of the United States] had said, that
the origin of the term 'collective self-defense’ is identified with the necessity of preserving regional systems like the
Inter-American one. The Charter, in general terms, is a constitution, and it legitimatizes the right of collective self-
defense to be carried out in accord with regional pacts so long as they are not opposed to the purposes and principles
of the Organization as expressed in the Charter. If a group of countries with regional ties declare their solidarity for
their mutual defense, as in the case of the American States, they will undertake such defense jointly if and when one
of them is attacked. And the right of defense is not limited to the country which is the direct victim of aggression but
extends to those countries which have established solidarity through regional arrangements, with the country directly
attacked.‘ (Ibid., p. 680.)
After the exchange of opinions, particularly among the Latin American delegates, ‘the Chairman paid tribute at this point

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 154
to the work of Senator Vandenberg [of the United States] in the elaboration of the new text‘ (ibid., p. 682). Senator
Vandenberg replied that ‘in his opinion the unanimity expressed by voice and vote on this question was a signpost to-
wards a peaceful world with justice for free men in a free earth‘ (ibid.). Thus the concepts of individual or collective self-
defence were incorporated into the United Nations Charter, at the suggestion of the United States, without much discus-
sion. Hence Article 51 of the Charter reads:
‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed at-
tack occurs against a Member of the United Nations, until the Security Council has taken necessary measures to
maintain international peace and security ...‘ (Emphasis added.)
*256 This text is practically identical to the one adopted by Committee 4 but the French version is different:
‘Aucune disposition de la presente Charte ne porte atteinte au droit naturel de legitime defense, individuelle ou col-
lective, dans le cas ou un Membre des Nations Unies est l'objet d'une agression armee ...‘
It is to be noted that the reflexive verb ‘se defendre‘ (corresponding to the English ‘self-defence‘) has disappeared in this
version, so that it no longer appears that the invocation of individual or collective defence is the exclusive prerogative of
the State directly attacked.
94. At all events, there was certainly no discussion whether the right of collective self-defence was inherent or not. If
there was any statement that the right of self-defence is inherent, this goes back to 1928, when at the time of the prepara-
tion of the 1928 Multilateral Treaty for the Renunciation of War the United States Government sent notes to various gov-
ernments on 23 June 1928, which read:
‘There is nothing in the American draft of anti-war treaty which restricts or impairs in any way the right of self-
defense. That right is inherent in every sovereign state and is implicit in every treaty. Every nation is free at all times
and regardless of treaty provisions to defend its territory from attack or invasion and it alone is competent to decide
whether circumstances require recourse to war in selfdefense.‘ (American Journal of International Law, Supplement,
Vol. 22, p. 109.) (emphasis added.)
A fortiori, the idea that the right of collective self-defence is inherent is certainly not traceable up to 1928, and so far as
the proceedings of the San Francisco Conference indicate, there was hardly any discussion on this point in 1945.
95. After recalling that ‘the Charter [of the United Nations] itself testifies to the existence of the right of collective self-
defence in customary international law‘ (para. 193), and that the General Assembly resolution containing the Declaration
on the principles of international law concerning friendly relations and co-operation among States
‘demonstrates that the States represented in the General Assembly regard the exception to the prohibition of
force constituted by the right of individual or collective self-defence as already a matter of customary interna-
tional law‘ (ibid.),
the present Judgment states that
*257 ‘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.‘ (Para. 194.)
Referring to a precondition required for the exercise of collective selfdefence, the Judgment remarks:
‘Where collective self-defence is invoked, it is to be expected that the State for whose benefit this right is used will
have declared itself to be the victim of an armed attack.‘ (Para. 195.)
And it goes on to mention a second condition:
‘The Court concludes that the requirement of a request by the State which is the victim of the alleged attack is addi-
tional to the requirement that such a State should have declared itself to have been attacked.‘ (Para. 199.)
The Judgment also draws certain inferences from a further requirement imposed by the Charter of the United Nations for
the exercise of the right of self-defence under Article 51, namely that: ‘measures taken by States in exercise of this right

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 155
of self-defence must be 'immediately reported’ to the Security Council‘ (para. 200).
96. The concept of collective self-defence has been the subject of extensive discussion among the scholars of internation-
al law for the past several decades. It is well known that speaking of ‘inherent‘ right of self-defence, Kelsen stated:
‘This is a theoretical opinion of the legislator which has no legal importance. The effect of Article 51 would not
change if the term 'inherent’ were dropped.‘ (The Law of the United Nations, 1950, p. 791.)
Julius Stone held the view:
‘In its form as reserving a preexisting right of 'collective selfdefence’, Article 51 presents such insoluble problems
that it may seem better to treat the term 'inherent' as otiose, and regard Article 51 as itself conferring the liberties
there described.‘ (Legal Controls of International Conflict, 1954, p. 245.)
I do not attempt to suggest that these views necessarily reflect the leading school of thought. Yet the Court should have
been aware of so much discussion, either for or against, on the inherent right of collective selfdefence.*258 Attention
should also be paid to the difference in connotations of the English and French texts of Article 51 of the United Nations
Charter.
97. In sum even if it was necessary for the Court to take up the concept of collective self-defence – and I do not agree
that it was – this concept should have been more extensively probed by the Court in its first Judgment to broach the sub-
ject.
(Signed) Shigeru ODA.
*259 DISSENTING OPINION OF JUDGE SCHWEBEL
TABLE OF CONTENTS
Paragraphs
I. INTRODUCTION 1-5
II. SUMMARY OF SALIENT LEGAL 6-16
CONCLUSIONS
III. FACTUAL PREMISES 17-41
A. The Nicaraguan Government came to 17-18
power on the back of some of the very
forms of foreign intervention of which it
now complains (Appendix, paras. 2-7)
B. The new Nicaraguan Government 19
achieved foreign recognition in ex-
change for international commitments
concerning its internal and external
policies, commitments which it deliber-
ately has violated (Appendix, paras.
8-13)
C. The new Nicaraguan Government re- 20
ceived unprecedented aid from the inter-
national community, including the
United States (Appendix, paras. 14-15)

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 156
D. The Carter Administration suspended 21

aid to Nicaragua in January 1981 be-
cause of its support of insurgency in El
Salvador, support evidenced, inter alia,
by documents captured from the Sal-
vadoran guerrillas (Appendix, paras.
16-22)
E. The Reagan Administration termin- 22
ated aid to the Nicaraguan Government
while waiving the latter's obligation to
return aid already extended in the hope
that its support of foreign insurgencies
would cease; subsequently, it twice offi-
cially offered to resume aid if Nicaragua
would stop supporting insurgency in El
Salvador, offers which were not accep-
ted (Appendix, paras. 23-24)
F. The Reagan Administration made 23
clear to the Nicaraguan Government in
1981 that it regarded the Sandinista re-
volution ‘as Irreversible‘; its condition
for co-existence was stopping the flow
of arms to El Salvador (Appendix,
paras. 25-26)
G. Before this Court, representatives of 24-27
the Government of Nicaragua have
falsely maintained that the Nicaraguan
Government has ‘never‘ supplied arms
or other material assistance to insur-
gents in El Salvador, has ‘never‘ main-
tained Salvadoran command and control
facilities on Nicaraguan territory and
‘never‘ permitted its territory to be used
for training of Salvadoran insurgents
(Appendix, para. 27)
H. The Nicaraguan Government, despite 28-32
its denials, in fact has acted as the prin-
cipal conduit for the provision of arms
and munitions to the Salvadoran insur-
gents from 1979 to the present day;
command and control of the Salvadoran
insurgency has been exercised from
Nicaraguan territory with the co-
operation of the Cuban and Nicaraguan

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 157
Governments; training of Salvadoran in-

surgents has been carried out in Cuba
and Nicaragua; the Salvadoran insur-
gents' radio station at one time operated
from Nicaraguan territory; and Nicara-
guan political and diplomatic support of
the Salvadoran insurgency has been ar-
dent, open and sustained (Appendix,
paras. 28-188)
I. In 1979, members of the Nicaraguan 33
National Guard escaped to Honduras,
from which they harassed Nicaragua.
Officers of the Argentine Army began
training these counter-revolutionaries in
late 1980 or early in 1981 – and contin-
ued to do so until 1984 (Appendix,
paras. 189-196)
J. In November 1981, after Nicaragua 34
had failed to accept repeated United
States requests to cease its material sup-
port for Salvadoran insurgents, the
United States decided to exert military
pressure upon Nicaragua in order to
force it to do what it would not agree to
do (Appendix, paras. 169-170, 173, 110,
121-122, 128-129)
K. The object of United States support 35
of the contras was claimed by the
United States to be interdiction of traffic
in arms to El Salvador, though clearly
that was not the purpose of the contras
(Appendix, paras. 156-173, and the
Court's Judgment)
L. By October 1983, in apparent re- 36
sponse to United States pressures,
Nicaragua proposed four treaties which
were interpreted as an offer to cease
supporting rebellion in El Salvador if
the United States would cease support
of the contras and of the Government of
El Salvador (Appendix, paras. 174-178)
M. In 1983, the United States called 37
upon Nicaragua to cut back its arms
build-up, to sever its ties with the USSR

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 158
and Cuba, and to carry out its pledges to

the OAS and its Members for a demo-
cratic society (Appendix, paras.
194-198)
N. By the beginning of 1984, the United 38
States undertook direct if covert military
action against Nicaragua, assaulting oil
facilities and mining Nicaraguan ports
(Appendix, para. 199, and the Court's
Judgment)
O. Particularly since January 1985, the 39
United States has spoken in terms which
can be interpreted as requiring compre-
hensive change in the policies of, or, al-
ternatively, overthrow of, the Nicara-
guan Government as a condition of ces-
sation of its support of the contras
(Appendix, paras. 200-205)
P. There is evidence of the commission 40
of atrocities by the contras, by Nicara-
guan Government forces, and by Sal-
vadoran insurgents, and of advocacy by
the CIA of actions contrary to the law of
war (Appendix, paras. 206-224)
Q. The Contadora process designed to 41
re-establish peace in Central America
embraces the democratic performance
internally of thefive Central American
Governments (Appendix, paras.
225-227)
IV. THE LAW 42-272
A. Introduction 42
B. Questions of admissibility and of jus- 43-77
ticiability
1. Political questions 43-50
2. The Court's capacity to pass upon 51-60
continuing uses of force
3. United States Diplomatic and Consu- 61-68
lar Staff in Tehran case
4. The incapacity of the Court to judge 69-77
the necessity of continuing use of force
in the circumstances of this case

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 159
C. The relevance and effect of the 78-99

‘multilateral treaty‘ reservation
1. The Court was and is bound to apply 78-90
the reservation
2. The relationship of customary inter- 91-99
national law to the reservation
D. The question of jurisdiction under 100-106
the Treaty of Friendship, Commerce and
Navigation
E. The effect of the absence of El Sal- 107-113
vador
F. The effect of the absence of the 114-127
United States
1. Events bearing on the absence of the 114-115
United States
2. The meaning of Article 53 of the 116-127
Statute
G. The Court's treatment of the evidence 128-153
1. The title of the case 128-131
2. The failure to use the Court's author- 132-134
ity to find the facts
3. The Court's articulation and applica- 135-153
tion of evidential standards
H. The Nicaraguan Government's mater- 154-161
ial support of insurgency in El Salvador
is legally tantamount to an armed attack
by Nicaragua upon El Salvador
I. The Court's conclusion is inconsistent 162-171
with the General Assembly's Definition
of Aggression
J. The question of whether measures in 172-173
self-defence may be taken only in case
of armed attack
K. The Court's views on counter-in- 174-181
tervention and its implied support for
‘wars of liberation‘
L. El Salvador is entitled to act in self- 182-184
defence against Nicaraguan armed at-
tack
M. The United States is entitled to act in 185-200
collective self-defence with El Salvador

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 160
1. The position of El Salvador 185-191

2. The position of the United States 192
3. The pertinence of provisions of the 193-197
Inter-American Treaty of Reciprocal
Assistance
4. The position under the United Na- 198-200
tions Charter and customary internation-
al law
N. Considerations of necessity and pro- 201-214
portionality
O. Measures of collective self-defence 215-220
may lawfully extend to Nicaraguan ter-
ritory
P. The failure of the United States to no- 221-230
tify the Security Council of measures of
self-defence
Q. If United States reliance on a claim 231-233
of self-defence is well founded, it con-
stitutes a complete defence to virtually
all Nicaraguan claims
R. The mining of Nicaraguan ports was 234-240
unlawful in regard to third States but
lawful in respect to Nicaragua
S. The United States has not unlawfully 241-250
intervened in the internal or external af-
fairs of Nicaragua
T. The United States has not violated its 251-256
obligations towards Nicaragua under the
Treaty of Friendship, Commerce and
Navigation
U. Responsibility for violations of the 257-261
law of war
V. As the State which first used armed 262-265
force in contravention of the Charter,
the aggressor is Nicaragua
W. The misrepresentations of its repres- 266-267
entatives in Court must prejudice rather
than protect Nicaragua's claims
X. Nicaragua's unclean hands require 268-272
the Court in any event to reject its
claims
Paragraphs

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 161
(Appendix)
V. FACTUAL APPENDIX 1-227
A. The Sandinistas came to power on 2-7
the back of some of the very forms of
intervention of which they now com-
plain
B. The new Nicaraguan Government 8-13
achieved foreign recognition in ex-
change for international pledges con-
cerning its internal and external
policies, commitments which it deliber-
ately has violated
C. The new Nicaraguan Government re- 14-15
ceived unprecedented aid from the inter-
national community, including the
United States
D. The Carter Administration suspended 16-22
aid to Nicaragua because of its support
of insurgency in El Salvador, support
evidenced, inter alia, by documents cap-
tured from Salvadoran guerrillas
E. The Reagan Administration termin- 23-24
ated aid to the Nicaraguan Government
while waiving the latter's obligation to
return aid already extended in the hope
that its support for foreign insurgencies
would cease; subsequently, it twice offi-
cially offered to resume aid if Nicaragua
would stop supporting insurgency in El
Salvador, offers which were not accep-
ted
F. The Reagan Administration made 25-26
clear to the Nicaraguan Government in
1981 that it regarded the Sandinista re-
volution ‘as irreversible‘; its sole condi-
tion for co-existence was stopping the
flow of arms to El Salvador
G. Before this Court, representatives of 27
the Government of Nicaragua have
maintained that the Nicaraguan Govern-
ment has ‘never‘ supplied arms or other
material assistance to insurgents in El
Salvador, has ‘never‘ maintained Sal-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 162
vadoran command and control facilities

on Nicaraguan territory and ‘never‘ per-
mitted its territory to be used for train-
ing of Salvadoran insurgents
H. The Nicaraguan Government, despite 28-188
its denials, in fact has acted as the prin-
cipal conduit for the provision of arms
and munitions to the Salvadoran insur-
gents from 1979 to the present day;
command and control of the Salvadoran
insurgency has been exercised from
Nicaraguan territory with the co-
operation of the Cuban and Nicaraguan
Governments; training of Salvadoran in-
surgents has been carried out in Cuba
and Nicaragua; the Salvadoran insur-
gents' radio station at one time operated
from Nicaraguan territory; and Nicara-
guan political and diplomatic support of
the Salvadoran insurgency has been ar-
dent, open and sustained
1. Admissions by authorities of the 29-62
Nicaraguan Government
2. Admissions by witnesses appearing 63-77
on behalf of the Nicaraguan Govern-
ment
3. Admissions by Nicaraguan counsel 78-86
4. Admissions by leaders of the Sal- 87-97
vadoran insurgency
5. Statements by defectors 98-107
6. Statements by diplomats of univolved 108
countries
7. Statements by the Government of El 109-129
Salvador accusing Nicaragua of assist-
ing insurgency in El Salvador
8. Statements by the Government of 130-138
Honduras accusing Nicaragua of sub-
verting El Salvador as well as Honduras
9. Statements by the Government of 139
Costa Rica accusing Nicaragua of sub-
versive acts
10. Statements by the Congess of the 140-155
United States and by Congressmen op-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 163
posed to United States support of the

contrs
11. The transcript of conversation 156-170
between Assistant Secretary of State
Enders and Co-ordinator Ortega
12. Further early United States attempts 171-173
at peaceful settlement
13. The four treaties proposed by 174-178
Nicaragua in 1983
14. Details of Nicaraguan subversion of 179-188
El Salvador provided in ‘Revolution
Beyond Our Borders‘ and in earlier pub-
lications duly submitted to the Court –
and Nicaragua's reply
I. In 1979, members of the Nicaraguan 189-190
National Guard escaped to Honduras,
from which they harassed Nicaragua.
Officers of the Argentine Army began
training these counter-revolutionaries
apparently early in 1981 – and contin-
ued to do so until 1984
J. In November 1981, after Nicaragua 191
had failed to accept repeated United
States requests to cease its material sup-
port for Salvadoran insurgents, the
United States decided to exert military
pressure upon Nicaragua in order to
force it to do what it would not agree to
do
K. The object of United States support 192
of the contras was claimed by the
United States to be interdiction of traffic
in arms to El Salvador, though clearly
that was not the purpose of the contras
L. By October 1983, in apparent re- 193
sponse to United States pressures,
Nicaragua proposed four treaties which
were interpreted as an offer to cease
supporting rebellion in El Salvador if
the United States would cease support
of the contras and of the Government of
El Salvador
M. In 1983, the United States called 194-198

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 164
upon Nicaragua to cut back its arms

build-up, to sever its ties with the USSR
and Cuba, and to carry out its pledges to
the OAS and its Members for a demo-
cratic society
N. By the beginning of 1984, the United 199
States undertook direct if covert military
action against Nicaragua, assaulting oil
facilities and mining Nicaraguan ports
O. Particularly since January 1985, the 200-205
United States has spoken in terms which
can be interpreted as requiring compre-
hensive change in the policies of, or, al-
ternatively, overthrow of, the Nicara-
guan Government as a condition of ces-
sation of its support of the contras
P. There is evidence of the commission 206-224
of atrocities by the contras, by Nicara-
guan Government forces, and of ad-
vocacy by the CIA of contrary to the
law of war
Q. The Contadora process designed to 225-227
re-establish peace in Central America
embraces the democratic performance
internally of the five Central American
Governments
*266 I. INTRODUCTION
1. To say that I dissent from the Court's Judgment is to understate the depth of my differences with it. I agree with the
Court's finding that the United States, by failing to make known the existence and location of the mines laid by it, acted
in violation of customary international law (in relation to the shipping of third States); I agree that the CIA's causing pub-
lication of a manual advocating acts in violation of the law of war is indefensible; and I agree with some other elements
of the Judgment as well. Nevertheless, in my view the Judgment misperceives and misconstrues essential facts – not so
much the facts concerning the actions of the United States of which Nicaragua complains as the facts concerning the ac-
tions of Nicaragua of which the United States complains. It misconceives and misapplies the law – not in all respects, on
some of which the whole Court is agreed, but in paramount respects: particularly in its interpretation of what is an
‘armed attack‘ within the meaning of the United Nations Charter and customary international law; in its appearing to jus-
tify foreign intervention in furtherance of ‘the process of decolonization‘; and in nearly all of its holdings as to which
Party to this case has acted in violation of its international responsibilities and which, because it has acted defensively,
has not. For reasons which, because of its further examination of questions of jurisdiction, are even clearer today than
when it rendered its Judgment of 26 November 1984, this Judgment asserts a jurisdiction which in my view the Court
properly lacks, and it adjudges a vital question which, I believe, is not justiciable. And, I am profoundly pained to say, I
dissent from this Judgment because I believe that, in effect, it adopts the false testimony of representatives of the Gov-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 165
ernment of the Republic of Nicaragua on a matter which, in my view, is essential to the disposition of this case and
which, on any view, is material to its disposition. The effect of the Court's treatment of that false testimony upon the
validity of the Judgment is a question which only others can decide.
2. These are uncommonly critical words in a Court which rightly enjoys very great respect. Coming as they do from a
Judge who is a national of a Party to the case, I am conscious of the fact that the This opinion accordingly is long, not
only for that reason but because the differences between the Court's views and mine turn particularly on the facts. The
facts are in fundamental controversy. I find the Court's statement of the facts to be inadequate, in that it sufficiently sets
out the facts which have led it to reach conclusions of law *267 adverse to the United States, while it insufficiently sets
out the facts which should have led it to reach conclusions of law adverse to Nicaragua. In such a situation, where the
Parties differ profoundly on what the facts are, and where the Court has arrived at one evaluation of them and I another, I
believe that it is my obligation to present the factual support for the conclusions which I have reached. That cannot be
done in a few pages.
3. This opinion accordingly is cast in the following form. First, it presents a summary of its salient legal conclusions.
Second, it states, in abbreviated terms, the factual premises on which it is based – premises whose support is appended.
Third, it analyses the principal legal questions which the case –and the Court's Judgment – pose, some of which are pre-
liminary in character, others of which are central to the merits. Fourth and finally, it contains an appendix, in which a de-
tailed exposition and analysis of the facts inadequately stated in the Court's Judgment is placed. The facts are relegated to
an appendix not because they are secondary in importance. On the contrary, they are primary. Nevertheless I believe that
ease of evaluation of this dissenting opinion will be promoted by this approach.
4. In embarking on so lengthy an opinion, it may be appropriate to recall what that late distinguished Judge of the Court,
Philip C. Jessup, wrote, as he began a dissent to the Judgment in the South West Africa cases which ran to 117 printed
pages:
‘This full examination is the more necessary because I dissent not only from the legal reasoning and factual inter-
pretations in the Court's Judgment but also from its entire disposition of the case. In regard to the nature and value of
dissenting opinions, I am in complete agreement with the views of a great judge, a former member of this Court –
the late Sir Hersch Lauterpacht – who so often and so brilliantly contributed to the cause of international law and
justice his own concurring or dissenting opinions; I refer to section 23 of his book, The Development of International
Law by the International Court, 1958. He quotes, with evident approval (in note 10 on p. 66), the 'clear expression’
of Charles Evans Hughes who was a member of the Permanent Court of International Justice and later Chief Justice
of the United States:
'A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day,
when a later decision may possibly correct the error into which the dissenting judge believes the court to have been
betrayed.'
It is not out of disrespect for the Court, but out of respect for one of its *268 great and important traditions, that,
when necessary, I express my disagreement with its conclusions.‘ (I.C.J. Reports 1966, pp. 325-326.)
5. I should add that, in setting out my views on the facts and law of this case, I take no position on the politics of it. I
have views about the desirability and feasibility of the policies which the United States, Nicaragua, El Salvador and other
States concerned have pursued and are pursuing in respect of questions at issue in this case. But I have endeavoured to
separate those views from the exposition of the facts and evaluation of the law which this opinion contains. If, as is the
case, on most of those questions I have concluded that, by reason of Nicaragua's prior and continuing violations of inter-
national law, responsive actions of the United States are not in violation of international law, that is by no means to infer
that I believe that the pertinent policies and practices of the United States – and Nicaragua – are desirable or undesirable,

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 166
workable or unworkable, politic or impolitic, sensible or insensible, humane or inhumane. I do not suggest that law and
policy are divorced; far from it. Obviously law is meant to promote and does promote community policies, and conform-
ity with the law must be measured in the light of that fundamental truth. Nevertheless, States and men are not obliged to
do, or necessarily are well advised to do, all that the law permits. In my view, the proper function of a judge of this Court
is limited to an appraisal of what the law permits or requires, and does not extend to passing judgment on the merits of
policies which are pursued within those confines.
II. SUMMARY OF SALIENT LEGAL CONCLUSIONS
6. Without any pretence, still less actuality, of provocation, Nicaragua since 1979 has assisted and persisted in efforts to
overthrow the Government of El Salvador by providing large-scale, significant and sustained assistance to the rebellion
in El Salvador – a rebellion which, before the rendering of Nicaraguan and other foreign assistance, was ill-organized,
ill-equipped and ineffective. The delictual acts of the Nicaraguan Government have not been confined to provision of
very large quantities of arms, munitions and supplies (an act which of itself might be viewed as not tantamount to an
armed attack); Nicaragua (and Cuba) have joined with the Salvadoran rebels in the organization, planning and training
for their acts of insurgency; and Nicaragua has provided the Salvadoran insurgents with command-and-control facilities,
bases, communications and sanctuary, which have enabled the leadership of the Salvadoran insurgency to operate from
Nicaraguan territory. Under both customary and conventional international law, that scale of Nicaraguan subversive
activity not only constitutes unlawful intervention in the affairs of El Salvador; it is *269 cumulatively tantamount to an
armed attack upon El Salvador. (It is striking that both Nicaragua and the United States, in their pleadings before the
Court, agree that significant material support by a State of foreign armed irregulars who endeavour forcibly to overthrow
the Government of another State is tantamount to armed attack upon the latter State by the former State.) Not only is El
Salvador entitled to defend itself against this armed attack; it can, and has, called upon the United States to assist it in the
exercise of collective self-defence. The United States is legally entitled to respond. It can lawfully respond to Nicaragua's
covert attempt to overthrow the Government of El Salvador by overt or covert pressures, military and other, upon the
Government of Nicaragua, which are exerted either directly upon the Government, territory and people of Nicaragua by
the United States, or indirectly through the actions of Nicaraguan rebels – the ‘contras‘ – supported by the United States.
7. While United States pressure upon Nicaragua is essentially lawful, nevertheless questions about the legality of aspects
of United States conduct remain. In my view, the fundamental question is this. Granting that the United States can join El
Salvador in measures of collective self-defence (even if, contrary to Article 51 of the United Nations Charter, they were
not reported to the United Nations Security Council, as, by their nature, covert defensive measures will not be), those
measures must be necessary, and proportionate to the delicts – the actions tantamount to armed attack – of Nicaragua.
And they must in their nature be fundamentally measures of self-defence.
8. By these standards, the unannounced mining by the United States of Nicaraguan ports was a violation of international
law. That mining could affect and did affect third States as against whom no rationale of self-defence could apply in
these circumstances. As against Nicaragua, however, the mining was no less lawful than other measures of pressure.
9. Are United States support of the contras and direct United States assaults on Nicaraguan oil tanks, ports and pipelines,
as well as other measures such as intelligence overflights, military and naval manoeuvres, and a trade embargo, unneces-
sary and disproportionate acts of self-defence? I do not believe so. Their necessity is, or arguably is, indicated by recur-
rent, persistent Nicaraguan failure to cease armed subversion of El Salvador. To the extent that proportionality of defens-
ive measures is required – a question examined below – in their nature, far from being disproportionate to the acts
against which they are a defence, the actions of *270 the United States are strikingly proportionate. The Salvadoran
rebels, vitally supported by Nicaragua, conduct a rebellion in El Salvador; in collective self-defence, the United States

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 167
symmetrically supports rebels who conduct a rebellion in Nicaragua. The rebels in El Salvador pervasively attack eco-
nomic targets of importance in El Salvador; the United States selectively attacks economic targets of military import-
ance, such as ports and oil stocks, in Nicaragua. Even if it be accepted, arguendo, that the current object of United States
policy is to overthrow the Nicaraguan Government – and that is by no means established – that is not necessarily dispro-
portionate to the obvious object of Nicaragua in supporting the Salvadoran rebels who seek overthrow of the Government
of El Salvador. To say, as did Nicaraguan counsel, that action designed to overthrow a government cannot be defensive,
is evident error, which would have come as a surprise to Roosevelt and Churchill (and Stalin), who insisted on the un-
conditional surrender of the Axis Powers. In the largest-scale international hostilities currently in progress, one State,
which maintains that it is the victim of armed attack, proclaims as its essential condition for peace that the government of
the alleged aggressor be overthrown – a condition which some may find extreme, others not, but which in any event has
not aroused the legal condemnation of the international community. Moreover, I agree with the Court that, if Nicaragua
has been giving support to the armed opposition in El Salvador, and if this constitutes an armed attack upon El Salvador,
collective self-defence may be legally invoked by the United States, even though the United States may possibly have an
additional and perhaps more decisive motive drawn from the political orientation of the Nicaraguan Government.
10. Nevertheless, it could be maintained that the necessity of United States actions claimed to be in collective self-
defence has been open to question, particularly since that time in 1983 when Nicaragua began to indicate that it was pre-
pared to cease its support for the armed subversion of El Salvador's Government if the United States would cease both its
direct support for El Salvador's Government and its pressures upon Nicaragua's. It may be maintained that, at any rate
since that time, there have been peaceful means of resolving the dispute which were open and should have been exploited
before the continued application of armed pressure was pursued. Whether that question of the necessity of the continued
use of force is justiciable is doubtful, for reasons explained below.
11. The Court has concluded that it can adjudge the necessity of United States pressures against Nicaragua. It has further
concluded that it need not make that judgment, on the ground that the pressures of the United States upon Nicaragua –
the measures which the United States has taken in alleged exercise of its right of collective self-defence – cannot be in
*271 response to a prior armed attack by Nicaragua upon El Salvador, for the reason that there has been no such armed
attack. Nevertheless, the Court holds that the measures taken by the United States against Nicaragua cannot in any event
be justified on grounds of necessity.
12. I share none of these conclusions. The Court's statement of, and apparent understanding of, the facts that underlie its
conclusion that there has been no armed attack by Nicaragua upon El Salvador essentially turn upon its conclusions that
it has not been proven that the Nicaraguan Government itself was engaged in the shipment of arms to Salvadoran insur-
gents, still less in any related subversive acts, such as training of Salvadoran insurgents and provision of headquarters for
their leadership on Nicaraguan territory, to which allegations the Court pays scant attention; that such arms shipments as
there may have been through Nicaraguan territory to Salvadoran insurgents appear largely or entirely to have ended in
early 1981; and that, accordingly, United States measures launched some months and maintained for some years there-
after could not have been a timely, necessary and proportionate response to such arms trafficking, if indeed there were
any. These conclusions, in turn, reflect rules of evidence which the Court has articulated for this case and purported to
apply, whose application will be shown below to be inappropriate. In my view, for reasons fully expounded in the ap-
pendix to this opinion, the Court's finding of the facts on the critical question of the reality and extent of the intervention
of the Nicaraguan Government in El Salvador in support of the insurgency in that country – which goes far beyond the
shipment of arms – cannot be objectively sustained.
13. As to the law, the Court holds that, even if the shipment of arms through Nicaragua to Salvadoran insurgents could be
imputed to the Nicaraguan Government, such shipment would not be legally tantamount to an armed attack upon El Sal-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 168
vador. In the absence of armed attack, the Court holds, El Salvador is not entitled to react in self-defence – and did not –
and the United States is not entitled to react in collective self-defence – and did not. I find the Court's interpretation of
what is tantamount to an armed attack, and of the consequential law, inconsonant with accepted international law and
with the realities of international relations. And I find its holdings as to what El Salvador and the United States actually
did inconsistent with the facts.
14. The truth is that the State which first intervened with the use of force in the affairs of another State in the dispute be-
fore the Court was Nicaragua, which initiated and has maintained its efforts to subvert or overthrow the governments of
its neighbours, particularly of El Salvador. In *272 contemporary international law, the State which first undertakes spe-
cified unprovoked, unlawful uses of force against another State – such as substantial involvement in the sending of armed
bands onto its territory – is, prima facie, the aggressor. On examination, Nicaragua's status as the prima facie aggressor
can only be definitively confirmed. Moreover, Nicaragua has compounded its delictual behaviour by pressing false testi-
mony on the Court in a deliberate effort to conceal it. Accordingly, on both grounds, Nicaragua does not come before the
Court with clean hands. Judgment in its favour is thus unwarranted, and would be unwarranted even if it should be con-
cluded – as it should not be – that the responsive actions of the United States were unnecessary or disproportionate.
15. The Court has arrived at very different conclusions. While I disagree with its legal conclusions – particularly as they
turn on its holding that there has been no action by Nicaragua tantamount to an armed attack upon El Salvador to which
the United States may respond in collective self-defence – I recognize that there is room for the Court's construction of
the legal meaning of an armed attack, as well as for some of its other conclusions of law. The Court could have produced
a plausible judgment – unsound in its ultimate conclusions, in my view, but not implausible – which would have recog-
nized not only the facts of United States intervention in Nicaragua but the facts of Nicaragua's prior and continuing inter-
vention in El Salvador; which would have treated Nicaragua's intervention as unlawful (as it undeniably is); but which
would also have held that it nevertheless was not tantamount to an armed attack upon El Salvador or that, even if it were,
the response of the United States was unnecessary, ill-timed or disproportionate. Such a judgment could plausibly have
held against the United States on other points as well, among them, its failure to report its actions to the United Nations
Security Council and its failure to have adequate recourse to the multilateral institutions for peaceful settlement and col-
lective security constituted by the Charters of the United Nations and the Organization of American States.
16. But the Court has proceeded otherwise. It has excluded, discounted and excused the unanswerable evidence of
Nicaragua's major and maintained intervention in the Salvadoran insurgency, an intervention which has consisted not
only in provision of great quantities of small arms until early 1981, but provision of arms, ammunition, munitions and
supplies thereafter and provision of command-and-control centres, training and communications facilities and other sup-
port before and after 1981. The facts, and the law, demanded condemnation of these Nicaraguan actions which, even if
not tantamount to armed attack, must constitute unlawful intervention. For reasons that neither judicial nor judicious con-
siderations sustain, the Court has chosen to depreciate these facts, to omit any consequential statement of the law, and
even, in effect, to appear to lend its *273 good name to Nicaragua's misrepresentation of the facts. The Court may
thereby have thrown into question the validity of a Judgment which is bound to its factual predicates. By so doing,
Nicaragua's credibility has not been established, but that of the Court has been strained. Moreover, the Court has in my
view further compromised its Judgment by its inference that there may be a double standard in the law governing the use
of force in international relations: intervention is debarred, except, it appears, in ‘the process of decolonization‘. I deeply
regret to be obliged to say that, in my submission, far from the Court, in pursuance of the requirements of its Statute, sat-
isfying itself as to the facts and the law, it has stultified itself.
III. FACTUAL PREMISES

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 169
A. The Nicaraguan Government Came to Power on the Back of Some of the Very Forms of Foreign Intervention of
Which it now Complains (Appendix, Paras. 2-7)
17. The overthrow in 1979 of the Government of President Somoza by a widespread and popularly supported rebellion,
led by the fighting forces of the Sandinistas, was vitally assisted by foreign governments. President Castro had united di-
verse factions of the Sandinista leadership into the nine-member directorate of comandantes which today governs
Nicaragua, and Cuba supplied the united Sandinista forces with large quantities of arms, with training, and advisers in
the field. Venezuela provided the Sandinistas with arms, money and logistical support. Costa Rica provided safe haven
for large numbers of Sandinista forces based in its territory and was the prime channel for the extensive shipments of
arms provided by third States to the Sandinistas. Panama also served as such a channel and deployed members of the
Panamanian National Guard who joined in fighting against the Somoza regime. For its part, Honduras was unable or un-
willing to take effective measures against the Sandinista forces which operated from Honduran territory. Thus the
Sandinistas, who today complain of foreign intervention, particularly the sending of irregulars on to their territory from
safe havens of neighbouring States who are financed, trained and provisioned by a foreign State, actually came to power
with the aid of these very forms of foreign intervention against the Government which they then were battling.
18. Moreover, the fall of President Somoza was facilitated by the exertion of other foreign pressures upon his Govern-
ment. The United States brought its influence to bear to withhold international credits from the *274 Nicaraguan Govern-
ment. It cut off military assistance and sales to the Nicaraguan Government and persuaded other major governmental
suppliers to stop selling ammunition to the Nicaraguan Government. In the Organization of American States, strong pres-
sures were exerted upon President Somoza to step down, culminating in a resolution of the Seventeenth Meeting of Con-
sultation of Ministers of Foreign Affairs of 23 June 1979 which called for ‘Immediate and definitive replacement of the
Somoza regime‘.
B. The New Nicaraguan Government Achieved Foreign Recognition in Exchange for International Commitments con-
cerning its Internal and External Policies, Commitments Which it Deliberately Has Violated (Appendix, Paras. 8-13)
19. In response to the foregoing resolution – which also called for installation of a democratic government in Nicaragua
which would guarantee the human rights of all Nicaraguans and hold free elections – the Junta of the Government of Na-
tional Reconstruction of Nicaragua on 12 July 1979 sent to the OAS and ‘to the Ministers of Foreign Affairs of the Mem-
ber States of the Organization‘ its written statement of plans for Somoza's resignation and its assumption of power. The
Junta pledged that, upon the recognition by the member States of the OAS of the Government of National Reconstruction
as the legitimate Government of Nicaragua, that Government when in power would immediately proceed to enact into
law and implement provisions which would meet the prescriptions of the OAS. The States Members of the OAS carried
out their part of this international understanding, individually as well as collectively extending promptly the recognition
which the Junta solicited. But the Sandinistas – who soon asserted and maintained exclusive control of the Junta and sub-
sequent formations of the Nicaraguan Government – did not carry out their part. On the contrary, they violated important
elements of the Junta's assurances to the OAS and its Members, and did so, as a matter of deliberate governmental
policy, well before there could be any justification for such derogations on grounds of national emergency provoked by
armed attacks upon the revolutionary government.
C. The New Nicaraguan Government Received Unprecedented Aid from the International Community, including the
United States (Appendix, Paras. 14-15)
20. The advent of the revolutionary Government in Nicaragua was welcomed virtually throughout the world. Assistance
to it poured in, from East, West and Latin America. West included not only Europe but the United States which, in the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 170
first 18 months of Sandinista rule, gave more *275 economic aid to Nicaragua than did any other country and more than
it had given in total in 20 previous years of Somoza family rule. The Carter Administration exerted itself to establish
friendly relations with the new Nicaraguan Government which, for its part, adopted a national anthem which proclaims
the Yankees to be ‘the enemy of mankind‘. The United States attached a critical condition to its aid, namely, that
Nicaragua not assist violence or terrorism in other countries, a provision which was designed to discourage support of in-
surrection in El Salvador which, when the Sandinistas came to power in Nicaragua, was smouldering rather than flaring.
D. The Carter Administration Suspended Aid to Nicaragua in January 1981 Because of its Support of Insurgency in El
Salvador, Support Evidenced, inter alia, by Documents Captured from the Salvadoran Guerrillas (Appendix, Paras.
16-22)
21. Confronted with convincing evidence of large-scale supply of arms by the Nicaraguan Government to the insurgents
in El Salvador, culminating in their ‘final offensive‘ of January 1981, the Carter Administration in its closing days sus-
pended economic aid to the Government of Nicaragua and resumed military aid to the Government of El Salvador. That
evidence included captured documents demonstrating the involvement of Communist States, particularly Cuba, and
Nicaragua in the unification, planning, training, arming and provisioning of a Salvadoran insurgency which would have
its command-and-control facilities in Nicaragua.
E. The Reagan Administration Terminated Aid to the Nicaraguan Government while Waiving the Latter's Obligation to
Repay Aid already Extended in the Hope that its Support of Foreign Insurgencies Would Cease; Subsequently, it Twice
Officially Offered to Resume Aid if Nicaragua Would Stop Supporting Insurgency in El Salvador, Offers Which Were
not Accepted (Appendix, Paras. 23-24)
22. The Reagan Administration in April 1981 terminated the suspended aid to the Nicaraguan Government because of the
evidence of its support of insurgency in El Salvador. Because the suspension of that aid in January by the Carter Admin-
istration and urgent United States diplomatic representations, buttressed with detailed intelligence reports, had had some
success in persuading the Nicaraguan Government to interrupt its provision of arms to the Salvadoran insurgents, the Re-
agan Administration waived repayment for which United States law provided. In August 1981, the United States offi-
cially offered to resume aid to the Nicaraguan Government provided that it cease its by then resumed support for the
*276 rebels in El Salvador, an offer which the United States repeated in April 1982. Nicaragua accepted neither offer.
Nicaragua denied that it was extending such support.
F. The Reagan Administration Made Clear to the Nicaraguan Government in 1981 that it Regarded the Sandinista Re-
volution ‘As Irreversible‘; its Condition for Co-existence Was Stopping the Flow of Arms to El Salvador (Appendix,
Paras. 25-26)
23. Nicaragua's evidence shows that, in 1981, the United States sent then Assistant Secretary of State Thomas O. Enders
to Managua where, in conversations at the highest levels of the Nicaraguan Government, he gave assurances – according
to the transcript of conversation supplied by Nicaragua – that the United States Government was prepared to accept the
Nicaraguan revolution ‘as irreversible‘ provided that Nicaragua stopped the flow of arms to El Salvador.
G. Before this Court, Representatives of the Government of Nicaragua Have Falsely Maintained that the Nicaraguan
Government Has ‘Never‘ Supplied Arms or Other Material Assistance to Insurgents in El Salvador, Has ‘Never‘ Main-
tained Salvadoran Command-and-Control Facilities on Nicaraguan Territory and ‘Never‘ Permitted its Territory to Be
Used for Training of Salvadoran Insurgents (Appendix, Para. 27)
24. The Foreign Minister of Nicaragua submitted an affidavit to the Court, repeatedly relied upon by Nicaragua, which

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 171
avers that: ‘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.‘ Another Minister, as a principal witness in Court for
Nicaragua, testified that his Government ‘never‘ had a policy of sending arms to opposition forces in Central America.
And, in the final word of the Nicaraguan Government to the Court on this vital question, the Agent of Nicaragua on 26
November 1985 wrote to the Court as follows:
‘As the Government of Nicaragua has consistently stated, it has never supplied arms or other material assistance to
insurgents in El Salvador or sanctioned the use of its territory for such purpose, it has never permitted Salvadoran in-
surgents to establish a headquarters or operations base or command and control facility in Nicaraguan territory and
has never permitted its territory to be used for training of Salvadoran insurgents.‘
25. It is my studied conclusion that these statements are untrue. In my *277 view, they are demonstrably false, and, in the
factual appendix to this opinion, are demonstrated to be false.
26. It is of course a commonplace that government officials dissemble. Reasons of State are often thought to justify state-
ments which are incomplete, misleading or contrary to fact. Covert operations, by their nature, are intended to provide
cover, to lend credibility to ‘deniability‘. In this very case, certain statements of representatives of the United States in
the United Nations Security Council have been less than candid and have been shown to be inconsistent with other state-
ments of the most senior representatives of the United States. Moreover, the Government of the United States has made
some allegations against the Government of Nicaragua which appear to be erroneous or exaggerated or in any event un-
substantiated by evidence made public.
27. Nevertheless, there can be no equation between governmental statements made in this Court and governmental state-
ments made outside of it. The foundation of judicial decision is the establishment of the truth. Deliberate misrepresenta-
tions by the representatives of a government party to a case before this Court cannot be accepted because they undermine
the essence of the judicial function. This is particularly true where, as here, such misrepresentations are of facts that ar-
guably are essential, and incontestably are material, to the Court's Judgment.
H. The Nicaraguan Government, Despite its Denials, in Fact Has Acted as the Principal Conduit for the Provision of
Arms and Munitions to the Salvadoran Insurgents from 1979 to the Present Day; Command and Control of the Salvador-
an Insurgency Has Been Exercised from Nicaraguan Territory with the Co-operation of the Cuban and Nicaraguan Gov-
ernments; Training of Salvadoran Insurgents Has Been Carried out in Cuba and Nicaragua; the Salvadoran Insurgents'
Radio Station at One Time Operated from Nicaraguan Territory; and Nicaraguan Political and Diplomatic Support of the
Salvadoran Insurgency Has Been Ardent, Open and Sustained (Appendix, Paras. 28-188)
28. The fact that the Government of Nicaragua, soon after the time the Sandinistas took power to the present day (and
certainly to the period of the currency of this case before the Court), has extended material assistance to the insurgency in
El Salvador is, in my view, beyond objective dispute. As the extensive exposition of the factual appendix establishes,
Nicaragua has acted as the convinced conduit for the shipment of very large quantities of arms, and continuing supplies
of ammunition, munitions and medicines, from Cuba, Viet Nam, Ethiopia, and certain States of Eastern Europe, to the
Salvadoran insurgents. Provision of arms appears to have been on a large-scale in preparation for the January 1981 ‘final
*278 offensive‘ of the Salvadoran insurgents, to have declined markedly thereafter, revived in 1982, and been irregular
but not insignificant since; an important, perhaps vital, supply of ammunition, explosives and medicines appears to have
been maintained relatively continuously. Nicaragua has facilitated the training of Salvadoran insurgents in Cuba and in
Nicaragua. The command-and-control centres for the military operations of the Salvadoran insurgents have operated
from Nicaraguan territory and may still do so. Military as well as political leaders of the Salvadoran insurgency were
based in Nicaragua, indisputably until the well-publicized murder in 1983 in Managua of a resident leading member of

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 172
the Salvadoran insurgency by revolutionary rivals and the reputed suicide of a still more prominent Salvadoran insurgent
leader in Managua in response to that murder. For some time after the Sandinistas took power, the radio station of the
Salvadoran insurgency operated from Nicaraguan territory. Nicaraguan political and diplomatic support for the over-
throw of the Government of El Salvador by Salvadoran insurgents has been ardent, open and sustained.
29. That these are the facts has been recognized in significant measure by statements of authorities of the Nicaraguan
Government. In 1985, President Ortega was publicly and authoritatively quoted as stating (and has never denied stating)
that:
‘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 only one thing: that they don't attack us .
. .‘
President Ortega's admission is even more probative in his original Spanish words: ‘estamos Dispuestos ... a suspender
todo transito por nuestro territorio de ayuda militar u otra a los salvadorenos ...‘. Nicaragua can only ‘suspend‘ what is in
progress. (The Court discounts President Ortega's words on grounds that are patently unpersuasive; see below, para. 149.
The full text of President Ortega's remarks is found in the appendix to this opinion, paras. 30-31.) Moreover, as recently
as April 1986, President Ortega gave another press interview in which he reportedly declared that Nicaragua is ready to
agree to halt aid to ‘irregular forces‘ in the region in exchange for ending by the United States of its military pressure
upon Nicaragua; this President Ortega is quoted as saying, would be ‘a reciprocal arrangement‘ (ibid., para. 33).
30. These facts of Nicaragua's material support of the insurgency in El Salvador find further substantiation in admissions
by leaders of the Salvadoran insurgency, and much more explicit and emphatic support in *279 declarations of defectors
from that insurgency and from the Sandinistas. These facts are confirmed by the appraisals of diplomats from third
States. They are strongly maintained by the Governments of El Salvador and Honduras, the primary current objectives of
Nicaraguan policies of support of foreign insurrection and subversion. Statements of the Government of Costa Rica, and
the diplomatic positions which it has taken from the time of the accession of the Sandinistas to power, comport with this
evaluation of the facts.
31. The Government of the United States has consistently maintained that these are the facts, and it has provided consid-
erable evidence in support of its contentions, virtually all of which has not been specifically or adequately refuted by
Nicaragua – or the Court – in this case. That evidence includes shipments of arms en route to El Salvador seized in trans-
it from Nicaragua through Honduras, and in Costa Rica; captured documents of Salvadoran insurgents which reveal
Nicaragua to be the immediate source of their arms; and arms, verified by their serial numbers, abandoned by the United
States forces in Viet Nam, which were captured from Salvadoran insurgents, after having been shipped from Viet Nam to
Cuba to Nicaragua before being passed on to the Salvadoran insurgents. Moreover, the Congress of the United States,
which has not been fully supportive of the policies of the United States Government towards Nicaragua, has repeatedly
gone on record in full support of this finding of the facts. No less probative is that leading members of the Congress of
the United States who oppose support by the United States of the contras and who oppose exertion of armed pressures
upon Nicaragua, and who have at their disposal the intelligence resources of the United States Government on the issue,
such as Congressman Boland, have concluded that the insurgency in El Salvador:
‘depends for its life-blood – arms, ammunition, financing, logistics and command-and-control facilities – upon
outside assistance from Nicaragua and Cuba ... contrary to the repeated denials of Nicaraguan officials, that
country is thoroughly involved in supporting the Salvadoran insurgency‘.
32. Equally, informed critics of United States policy in Central America, such as Christopher Dickey, author of With the
Contras, A Reporter in the Wilds of Nicaragua, 1985, conclude that:
‘as the election results came in, with Reagan and his Republican platform the obvious winners, the Sandinistas

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 173
opened the floodgates for the Salvadoran rebels. By the middle of November the Salvadorans were complaining
they couldn't distribute so much materiel.
*280 You couldn't hide that many arms. Some were caught. Others were tracked through radio intercepts. And from
that point on, the new Reagan administration could present proof that ... the battle for El Salvador and the battle for
Nicaragua were one and the same.‘ (At p. 75.)
As to whether the flow of arms stopped in 1981, Dickey concludes that in 1982: ‘In fact arms to the Salvadorans ... had
not stopped. They had increased.‘ (Ibid., p. 133.)
I. In 1979, Members of the Nicaraguan National Guard Escaped to Honduras, from which they Harassed Nicaragua. Of-
ficers of the Argentine Army Began Training these Counter-Revolutionaries in Late 1980 or Early in 1981 – and Contin-
ued to Do So until 1984 (Appendix, Paras. 189-190)
33. At the fall of President Somoza in July 1979, numbers of former members of the Nicaraguan National Guard escaped
to Honduras, from which they mounted small-scale raids on Nicaragua. At a time which is not precisely established, but
apparently late in 1980 or early in 1981, Argentine officers, dispatched by the then military Government of Argentina,
began to train these counter-revolutionaries – contras – in Honduras and in Argentina. These Argentine officers were not
withdrawn until early 1984, months after the fall of the military Government of Argentina. Thus the first State to inter-
vene against the Nicaraguan Government was not the United States but Argentina (apparently with the support of the
Government of Honduras). It is not clear whether the initial Argentine intervention was carried out with United States
support. It is clear that, when the United States itself began to lend support to the contras (the very end of 1981 or early
1982), its agents co-operated with and apparently financed those of Argentina. Training of the contras appears to have re-
mained largely in Argentine hands into early 1984.
J. In November 1981, after Nicaragua Had Failed to Accept Repeated United States Requests to Cease its Material Sup-
port for Salvadoran Insurgents, the United States Decided to Exert Military Pressure upon Nicaragua in Order to Force it
to Do what it Would not Agree to Do (Appendix, Paras. 169-170, 173, 110, 121-122, 128-129)
34. In November 1981, eight months after the United States had terminated aid to Nicaragua, and three months after
Nicaragua had failed to respond positively to a clear, high-level, urgent United States demand (by the Enders mission) to
put an end to its material support for the Salvadoran*281 insurgency in return for the resumption of United States aid and
other inducements, the United States decided to exert military pressure upon Nicaragua in order to force it to do what it
would not agree to do. The exertion of that pressure was welcomed by the Government of El Salvador, to which the
United States by then was rendering large-scale material assistance to fend off rebel attacks and sustain a wounded eco-
nomy. El Salvador made it clear that it regarded, and continues to regard, United States pressure upon Nicaragua as ac-
tion in legitimate defence against Nicaraguan aggression and intervention against it.
K. The Object of United States Support of the Contras Was Claimed by the United States to Be Interdiction of Traffic in
Arms to El Salvador, though Clearly that Was not the Purpose of the Contras (Appendix, Paras. 156-173, and the Court's
Judgment)
35. The object of the United States programme was said to be interdiction of the traffic in arms and termination of the
other material support rendered by Nicaragua to the Salvadoran rebels. That this was the object of United States policy at
that initial stage (at least if interdiction is understood to mean cessation) is supported not only by the thrust of the Enders
mission of 1981 but by the fact that, in 1982, the United States offered to cease support of the contras if Nicaragua would
cease supporting rebellion in El Salvador. Nicaragua refused, and fundamentally prejudiced United States official opin-
ion against it by continuing to deny – in the teeth of the facts – that it was assisting the Salvadoran rebellion. However,

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 174
the contras, whose forces quickly grew to embrace disillusioned Sandinistas and discontent as well as dragooned
campesinos, clearly had another objective, namely, overthrow of Sandinista authority.
L. By October 1983, in Apparent Response to United States Pressures, Nicaragua Proposed Four Treaties which Were In-
terpreted as an Offer to Cease Supporting Rebellion in El Salvador if the United States Would Cease Support of the Con-
tras and of the Government of El Salvador (Appendix, Paras. 174-178)
36. By October 1983, in apparent response to United States pressures, Nicaragua came forward with four draft treaties
which were widely interpreted as an offer to cease support of rebellion in El Salvador in return not only for United States
termination of support for the contras but support for the Government of El Salvador as well. The United States refused.
*282 M. In 1983, the United States Called upon Nicaragua to Cut Back its Arms Build-up, to Sever its Ties with the
USSR and Cuba, and to Carry out its Pledges to the OAS and its Members for a Democratic Society (Appendix, Paras.
194-198)
37. Immediately upon taking power, and well before there was any military threat to Nicaragua, the Sandinistas began a
military build-up unprecedented in Central America. Very large numbers of military advisers from Cuba, and much less-
er but not insubstantial numbers from the USSR and other States of Eastern Europe, as well as Libya and the PLO,
quickly established themselves in Nicaragua, and Cuban and other foreign Communist functionaries were placed in influ-
ential positions in Nicaraguan Government ministries. The substantial elements of Nicaraguan society which had op-
posed the Somoza regime and joined in initial support of the Junta of the Government of National Reconstruction were
forced out, and elections, which the Sandinistas characterized as a ‘bourgeois ... nuisance‘, were postponed until late
1984. By 1983, the United States no longer only demanded cessation of Nicaraguan support of subversion of its neigh-
bours and for Nicaragua to ‘look inwards‘. It called as well upon Nicaragua to cut back its arms build-up, to sever its ties
to Cuba and the USSR, and to carry out its pledges to the OAS and its Members to establish a pluralistic and democratic
society in which the government would be freely elected by the whole of the voting population, including the opposition
forces represented by the contras and their political allies (who grew to include some of the leading democratic figures of
Nicaragua).
N. By the Beginning of 1984, the United States Undertook Direct if Covert Military Action against Nicaragua, Assault-
ing Oil Facilities and Mining Nicaraguan Ports (Appendix, Para. 199, and the Court's Judgment)
38. By the beginning of 1984, in order to increase pressure upon Nicaragua, the United States launched direct if covert
military action against Nicaragua. Latin American commandos in the service of the CIA carried out assaults on Nicara-
guan oil storage tanks and pipelines, and port facilities, and United States agents mined Nicaraguan ports and waters.
While mining and other direct armed actions of the United States against Nicaragua ceased by the time of the Court's in-
dication of provisional measures in May 1984, United States support of the contras has been maintained, though subjec-
ted since mid-1984 to Congressionally-imposed interruption and limitation. Military training of contra forces by United
States advisers apparently has ceased, and aid has been limited to so-called ‘humanitarian‘ (non-lethal) forms.
*283 O. Particularly Since January 1985, the United States Has Spoken in Terms which Can Be Interpreted as Requiring
Comprehensive Change in the Policies of, or, Alternatively, Overthrow of, the Nicaraguan Government as a Condition of
Cessation of its Support of the Contras (Appendix, Paras. 200-205)
39. Particularly since January 1985, when it withdrew from participation in the case before the Court, the United States
has spoken in terms which can be interpreted as requiring substantial change in the policies and composition of, or, al-
ternatively, overthrow of, the Nicaraguan Government as a condition of its cessation of support for the contras. The view

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 175
of the United States appears to be that, if Sandinista authority is not diluted by processes leading to a sharing of power
with the opposition, the Nicaraguan Government cannot be trusted to carry out any assurances it might give to stop sub-
verting its neighbours. The United States has pressed for negotiations between the Nicaraguan Government and the con-
tras, which the Nicaraguan Government has refused.
P. There Is Evidence of the Commission of Atrocities by the Contras, by Nicaraguan Government Forces, and by Sal-
vadoran Insurgents, and of Advocacy by the CIA of Actions Contrary to the Law of War (Appendix, Paras. 206-224)
40. There is evidence of the commission of atrocities in Nicaragua by the contras and, to some extent, by Nicaraguan
Government forces and agents. The CIA prepared and caused publication of a manual which advocates actions by the
contras in violation of the law of war. In El Salvador, atrocities have been committed by the insurgents supported by
Nicaragua and by right-wing death squads.
Q. The Contadora Process Designed to Re-establish Peace in Central America Embraces the Democratic Performance In-
ternally of the Five Central American Governments (Appendix, Paras. 225-227)
41. The Latin American States of the Contadora Group have made, since January 1983, a sustained and intricate effort to
re-establish peaceful and co-operative relations among Nicaragua, El Salvador, Honduras, Costa Rica and Guatemala.
This effort is concerned not solely with issues of support of irregulars, arms trafficking, military manoeuvres, foreign
bases, foreign military advisers, the levels of armed forces, and external economic pressures. It is also concerned with the
democratic performance internally of the five Central American Governments. The Contadora process, in which
Nicaragua participates, assumes that certain political processes of the Central American States in dispute are matters of
international concern, and the Contadora proposals reflect that concern.
*284 IV. THE LAW
A. Introduction
42. This case admits of more than one appreciation of the law on many points, as the Court's Judgment, and the several
opinions of judges including this dissenting opinion, demonstrate. I shall initially treat certain preliminary and procedural
questions, namely, admissibility and justiciability; outstanding questions of jurisdiction as they arise under the multilater-
al treaty (Vandenberg) reservation to the United States acceptance of the Optional Clause and under the bilateral Treaty
of Friendship, Commerce and Navigation; questions pertaining to the absence of a party to a case and of a State seeking
to intervene; and last, matters of evidence. Then I shall turn to the multiple legal questions of the merits, above all,
whether Nicaraguan material support of the overthrow of the Government of El Salvador is tantamount to an armed at-
tack upon El Salvador against which the United States has justifiably joined El Salvador in reacting in collective self-
defence.
B. Questions of Admissibility and of Justiciability
1. Political questions
43. In its Judgment of 26 November 1984, the Court declined to accede to arguments advanced by the United States pur-
porting to demonstrate that the instant case is inadmissible (I.C.J. Reports 1984, pp. 429-441). In my dissent to the
Court's Judgment, I stated:
‘While I do not agree with all of the Court's holdings on admissibility, at the present stage I do not find the conten-
tions of the United States concerning the inadmissibility of the case to be convincing. Accordingly, I have joined the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 176
Court in voting that the Application is admissible ... without prejudice to any questions of admissibility which may
arise at the stage of the merits of the case.‘ (Ibid., p. 562.)
44. That stage having been reached, it is right that I amplify my views. I may summarize them by saying that I remain
largely unconvinced about the merit of United States contentions on admissibility. However, in view of the facts of the
case as they have been developed during the argument of the merits, I have concluded that the better view is that one,
critical element of the case is not ju ticiable.
45. I cannot subscribe to the contention – which the United States does not advance – that the use by a State of force in
self-defence, or alleged self-defence, is a ‘political‘ and hence non-justiciable question. That *285 contention is unper-
suasive, both in customary international law and under the law of the United Nations Charter.
46. Article 51 of the Charter prescribes that: ‘Nothing in the present Charter shall impair the inherent right of individual
or collective self-defence if an armed attack occurs against a Member of the United Nations...‘ But that provision cannot
reasonably be interpreted to mean that only the State exercising a claimed right of self-defence is the judge of the legality
of its actions. The Charter expressly authorizes the Security Council to ‘determine the existence of any threat to the
peace, breach of the peace, or act of aggression ...‘. Clearly the Security Council is entitled to adjudge the legality of a
State's resort to self-defence and to decide whether such recourse is legitimate or, on the contrary, an act of aggression.
The United States fully recognizes that, and indeed does not argue that the use of force by States in self-defence is a
political act unsubjected to legal appraisal by others. It rather argues that the collective responsibility for making such
judgments is accorded primarily to the Security Council, and secondarily and less definitively to the General Assembly
and regional organizations acting in accordance with the Security Council's authorization, but is not an authority entrus-
ted to the Court.
47. Nevertheless, it has been and still is argued by distinguished international lawyers that the use of force in self-de-
fence is a political question which no court, including the International Court of Justice, should adjudge. Analogies have
been drawn to exercise of judicial discretion by national courts which decline to pass upon certain questions – such as the
legality of the State's use of its armed forces internationally – on the ground that they are political questions entrusted to
other branches of government, and it is urged that the International Court of Justice is bound to exercise, or should exer-
cise, a like discretion.
48. Thus two distinct questions are raised by these contentions. One is whether a State's use of force in self-defence, or
alleged self-defence, is, as a political question, inherently non-justiciable. The other is whether, if a State's use of force in
self-defence is subject to legal judgment, the capacity to make that judgment has been entrusted to the Security Council
and withheld from the Court.
49. The theoretical foundations of the first contention were subjected to searching scrutiny in the work by Hersch Lauter-
pacht which has never been surpassed in its fundamental field: The Function of Law in the International Community
(1933). Lauterpacht recognized that:
‘It is of the essence of the legal conception of self-defence that recourse to it must, in the first instance, be a matter
for the judgment *286 of the State concerned. For if recourse to it were conditioned by a previous authorization of a
law-administering agency, then it would no longer be self-defence; it would be execution of a legal decision.‘ (Op.
cit., p. 179.)
However, Lauterpacht pointed out, the doctrine that the legitimacy of the exercise of the right of self-defence:
‘is incapable of judicial determination . . . cannot be admitted as juridically sound. If the conception of self-
defence is a legal conception ... then any action undertaken under it must be capable of legal appreciation ... The

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 177
right of self-defence is a general principle of law, and as such it is necessarily recognized to its full extent in in-
ternational law. But it is not a right fundamentally different from the corresponding right possessed by individu-
als under municipal law. In both cases it is an absolute right, inasmuch as no law can disregard it; in both cases
it is a relative right, inasmuch as it is recognized and regulated by law. It is recognized to the extent – but no
more – that recourse to it is not in itself illegal. It is regulated to the extent that it is the business of the Courts to
determine whether, how far, and for how long, there was a necessity to have recourse to it. There is not the
slightest relation between the content of the right to self-defence and the claim that it is above the law and not
amenable to evaluation by law. Such a claim is self-contradictory, inasmuch as it purports to be based on legal
right, and as, at the same time, it dissociates itself from regulation and evaluation by the law. Like any other dis-
pute involving important issues, so also the question of the right of recourse to war in self-defence is in itself
capable of judicial decision, and it is only the determination of States not to have questions of this nature de-
cided by a foreign tribunal which may make it non-justicable.‘ (Ibid., pp. 179-180.)
50. At the Nuremberg Trials in which Lauterpacht played such a seminal role –both in the conception and composition of
the Tribunal's material jurisdiction and in the arguments advanced before it by the distinguished counsel of the United
Kingdom – Lauterpacht, while suffering the marshalling of the evidence of organized bestialities of unspeakable horror,
nevertheless had the privilege of seeing an historic court place its jural imprimatur on the analysis which he had so co-
gently made:
‘It was further argued that Germany alone could decide, in accordance with the reservations made by many of the
Signatory Powers at the time of the conclusion of the Briand-Kellogg Pact, whether preventive action was a neces-
sity, and that in making her decision her judgment was conclusive. But whether action taken under the claim of *287
self-defence was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if inter-
national law is ever to be enforced.‘ (Judgment of the International Military Tribunal for the Trial of German Major
War Criminals, Nuremberg, 1946, His Majesty's Stationery Office, Cmd. 6964, p. 30.)
2. The Court's capacity to pass upon continuing uses of fore
51. As to the second contention, namely, that judgment of the legality of a State's resort to self-defence is essentially en-
trusted to the Security Council and exceptionally withheld from the Court, it is both theoretically tenable and politically
plausible. There is no inherent reason why States could not have reconstructed a contemporary international organization,
of which the Court is a principal organ, so as to have placed that judgmental authority only in the hands of the Security
Council, or of it and other political organs such as the General Assembly and regional organizations acting under the au-
thority of the Security Council. The question which a judge of the Court must decide is whether the authors of the
Charter of the United Nations and the Statute of the Court did so.
52. At the stage of the case dealing with jurisdiction and admissibility, the United States advanced an acute analysis in
support of the position that, by the terms and intent of the Charter, the design was to leave the judgment of aggression
entirely to the Security Council. The United States pointed out that the essence of Nicaragua's Application to the Court is
the assertion that there is currently taking place an unlawful use of force by the United States against Nicaragua's territ-
orial integrity and political independence. Nicaragua itself unsuccessfully had sought to obtain in the Security Council
days before its resort to the Court a determination that these alleged actions of the United States constituted aggression
against it. (Nicaragua's communication to the Security Council of 29 March 1984 called upon it to consider ‘the escala-
tion of acts of aggression currently being perpetrated against‘ Nicaragua (S/16449). The acts complained of in the Secur-
ity Council by Nicaragua – which it denominated ‘further acts of aggression‘ (S/PV.2525, pp. 6, 16, 18, 23, 63, 68-70,
and S/PV.2529, pp. 95-96) – were the very acts of which Nicaragua's Application in the case before the Court complains.
That Application itself acknowledges that Nicaragua has called the attention of the Security Council and the General As-
sembly ‘to these activities of the United States, in their character as threats to or breaches of the peace, and acts of ag-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 178
gression‘ (para. 12).) The United States observed that the fact that the Security Council had not granted relief to
Nicaragua in the terms in which Nicaragua sought it was of no matter; the Court has neither the competence to reverse
decisions of the Security Council nor the power to engage in functions expressly allocated to the Council.
53. The United States maintained that a complaint of ‘an ongoing use of unlawful armed force, was never intended by the
drafters of the Charter *288 of the United Nations to be encompassed by Article 36(2) of the Statute of the Court‘.
(Hearing of 16 October 1984, morning). It argued that, while Article 24 of the Charter confers only ‘primary‘ responsib-
ility for the maintenance of international peace and security on the Security Council, complementary responsibilities
were conferred on the General Assembly and regional organizations – but not upon the Court. The Court has an express,
clearly defined role under Chapter VI of the Charter with respect to the pacific settlement of international disputes. But
when the case rather involves ‘action with respect to threats to the peace, breaches of the peace, and acts of aggression‘
under Chapter VII of the Charter, not a word of the Charter or the Statute suggests a role for the Court. On the contrary,
as the records of the San Francisco Conference declare, it was decided ‘to leave to the Council the entire decision, and
also the entire responsibility for that decision, as to what constitutes a threat to the peace, a breach of the peace, or an act
of aggression‘ (United Nations Conference on International Organization, Vol. 11, p. 17). It was the understanding of the
United States in ratifying the Charter and Statute that the Statute does not ‘permit the Court to interfere with the func-
tions of the Security Council or the General Assembly‘. (Report of the Committee on Foreign Relations, ‘The Charter of
the United Nations‘, 79th Congress, 1st Session, 1945, p. 14.)
54. The United States recognized that Article 12, paragraph 1, of the Charter provides that, while the Security Council is
exercising the functions assigned to it in respect of a particular dispute, the General Assembly shall not make any recom-
mendation upon it, whereas the Court is not subject to any such express debarral; but it argued that that is because:
‘the framers of the Charter intended that, among the organs of the United Nations, only the General Assembly
would have a role supplementary to that of the Security Council in the maintenance of international peace and
security. It simply was never considered at the San Francisco Conference that the Court would, or should, have
the competence to engage in such matters.‘ (Hearing of 16 October 1984, afternoon.)
55. As to earlier cases involving the use of armed force in which there had been resort to the Court, such as the Corfu
Channel and Aerial Incident cases, the United States pointed out that, in all those cases, the action complained of had
already taken place.
‘In each case, the Court was called upon to adjudicate the rights and duties of the Parties with respect to a matter that
was fully in the past, that was not ongoing, that was not merely one element of a continuing stream of actions.‘
(Ibid.)
56. Despite the force of these arguments and of passages in the records of the San Francisco Conference in support of
them on which the United *289 States relies, I find myself unable to agree that it was the design of the drafters of the
Charter and the Statute to exclude the Court from adjudicating disputes falling within the scope of Chapter VII of the
United Nations Charter, and unable to agree that the practice of States in interpreting the Charter and the Statute con-
firms such a design.
57. It may well be, as counsel of the United States argued, that, ‘It was simply never considered at the San Francisco
Conference that the Court would, or should, have the competence to engage in such matters‘. It may well be that, had that
question been squarely and searchingly engaged, there would have been a decision to exclude from the competence of
the Court the authority to give judgment on matters which were before the Security Council under Chapter VII, or which
involved the continuing use of armed force in international relations. Certainly the argument is plausible that no Power
enjoying the veto right in the Security Council contemplated that, whereas the exercise of that right could block adoption

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 179
of any charge of aggression against it in the Security Council, it held itself open to a judgment of the Court branding it as
the aggressor in the very same case and on the very same facts in respect of which it had so exercised its Security Coun-
cil veto.
58. But while that argument is perfectly plausible, it is, in my view, insufficient. It is insufficient because nowhere in the
text of the Statute of the Court is there any indication that disputes involving the continuing use of armed force are ex-
cluded from its jurisdiction. On the contrary, Article 36 of the Statute is cast in comprehensive terms. Article 36, para-
graph 1, provides that the jurisdiction of the Court ‘comprises all cases‘ which the parties refer to it and ‘all matters spe-
cially provided for in the Charter of the United Nations or in treaties and conventions in force‘. Article 36, paragraph 2,
provides that States may recognize the jurisdiction of the Court ‘in all legal disputes‘ concerning:
‘(a) the interpretation of a treaty;
(d) the nature or extent of the reparation to be made for the breach of an international obligation.‘
These capacious terms do not exclude disputes over the continuing use of force from the Court's jurisdiction. To be sure,
a State recognizing the jurisdiction of the Court under Article 36, paragraph 2, could exclude disputes involving the use
of armed force, and some States have. The United States was not among them. (Nevertheless, whether the term ‘all legal
disputes‘, as used in the United States adherence to the Optional Clause, was meant to embrace disputes involving the
use of force may be open to question, for reasons which Judge Oda's opinion in this case sets forth.)
59. Now if one turns to the text of the Charter, of which the Court's *290 Statute is an integral part, the picture is not so
clear. There is support for the United States contentions, in the Charter's structure and terms and its travaux preparator-
ies. But the support is ambivalent, as the contrasting interpretations currently placed by the United States and the Court
on the implications of Article 12, paragraph 1, of the Charter illustrate. I am not disposed to conclude that so far-reaching
a restriction on the competence of the Court can be held to be implied by such ambiguous indications.
60. Moreover, while the Security Council is invested by the Charter with the authority to determine the existence of an
act of aggression, it does not act as a court in making such a determination. It may arrive at a determination of aggression
– or, as more often is the case, fail to arrive at a determination of aggression – for political rather than legal reasons.
However compelling the facts which could give rise to a determination of aggression, the Security Council acts within its
rights when it decides that to make such a determination will set back the cause of peace rather than advance it. In short,
the Security Council is a political organ which acts for political reasons. It may take legal considerations into account
but, unlike a court, it is not bound to apply them.
3. United States Diplomatic and Consular Staff in Tehran case
61. These conclusions are confirmed by the arguments which the United States itself advanced in the United States Dip-
lomatic and Consular Staff in Tehran case. It should be recalled that, promptly after the seizure of the hostages in Iran,
the United States sought the assistance of the Security Council in freeing them. By letter of 9 November 1979, the United
States requested the Security Council urgently to consider what might be done to secure the release of the hostages. On
25 November 1979, the Secretary-General of the United Nations, in exercise of his exceptional authority under Article 99
of the United Nations Charter to bring to the attention of the Security Council any matter which in his opinion may
threaten international peace and security, requested that the Security Council be urgently convened in an effort to seek a
peaceful solution to the hostage crisis. In his address to the Council on 27 November 1979, the Secretary-General de-
clared that the situation in Iran ‘threatens the peace and security of the region and could well have very grave con-
sequences for the entire world‘ (S/PV.2172). On 29 November 1979, the United States filed an Application in the Inter-
national Court of Justice instituting proceedings against Iran. On 4 December 1979, the Security Council unanimously

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 180
adopted a resolution calling upon the Government of Iran to release the detained personnel immediately. When hearings
before the Court on the concurrent request of the United States for the indication of provisional measures took place on
10 December, the President of the Court concluded his statement opening the hearings by addressing to the Agent of the
United States the following question: ‘What significance should be attached by the Court, for the purpose of the present
proceedings, to *291 resolution 457 adopted by the Security Council on 4 December 1979?‘ (I.C.J. Pleadings, United
States Diplomatic and Consular Staff in Tehran, p. 19.)
62. The answer to that question of the then Legal Adviser of the Department of State, Roberts Owen, is illuminating:
‘At this point, in response to a question raised by the President of the Court, I should make one final comment on the
Court's jurisdiction. As the Court is aware, the Security Council of the United Nations has addressed the present dis-
pute, and in resolution No. 457, adopted six days ago, the Council called upon the Government of Iran to bring about
the immediate release of the hostages. In such circumstances it might conceivably be suggested that this Court
should not exercise jurisdiction over the same dispute.
I respectfully submit that any such suggestion would be untenable. It is, of course, an impressive fact that the 15
countries represented in the Security Council – 15 countries of very diverse views and philosophies – have voted un-
animously – 15 to nothing – in favour of the resolution to which I have referred. The fact remains, however, that the
Security Council is a political organ which has responsibility for seeking solutions to international problems through
political means. By contrast, this Court is a judicial body with the responsibility to employ judicial methods in order
to resolve those problems which lie within its jurisdiction. There is absolutely nothing in the United Nations Charter
or in this Court's Statute to suggest that action by the Security Council excludes action by the Court, even if the two
actions might in some respects be parallel. By contrast, Article 12 of the United Nations Charter provides that, while
the Security Council is exercising its functions respecting a dispute, the General Assembly shall not make any re-
commendation on that dispute – but the Charter places no corresponding restriction on the Court. As Rosenne has
observed at page 87 of his treatise, The Law and Practice of the International Court of Justice, the fact that one of the
political organs of the United Nations is dealing with a particular dispute does not militate against the Court's taking
action on those aspects of the same dispute which fall within its jurisdiction.
To sum up on this point, the United States has brought to the Court a dispute which plainly falls within the Court's
compulsory jurisdiction, and I respectfully submit that, if we can satisfy the Court that an indication of provisional
measures is justified and needed in a manner consistent with Article 41 of the Court's Statute, the Court will have a
duty to indicate such measures, quite without regard to any parallel action which may have been taken by the Secur-
ity Council of the United Nations.‘ (Ibid., pp. 28-29. See also pp. 33-34.)
63. At the request of the United States, the Security Council met again in late December, after it had become clear that Ir-
an had no intention of *292 complying with the Court's indication of provisional measures of 15 December 1979 which
principally called for the immediate release of the hostages. On 31 December 1979, the Council adopted a resolution
which recorded its concern over the situation ‘which could have grave consequences for international peace and secur-
ity‘, recalled the view of the Secretary-General that the present crisis between Iran and the United States ‘poses a serious
threat to international peace and security‘, expressly took into account the terms of the Court's Order of 15 December
1979, recalled the terms of Article 2, paragraphs 3 and 4, of the Charter, deplored the detention of the hostages contrary
to the Court's Order, urgently called on Iran immediately to release the hostages, and decided to meet on 7 January 1980
‘in order to review the situation and, in the event of non-compliance with this resolution, to adopt effective measures un-
der Articles 39 and 41 of the Charter of the United Nations‘.
64. Thus, in a case then actively being pursued before the Court, the Security Council found it perfectly proper to take,
and to contemplate taking further, action under Chapter VII of the Charter. In the event, such further action was blocked
by the exercise of the power of the veto. Nevertheless, I do not believe that this history of concurrent action of the Secur-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 181
ity Council and the Court, initiated in both forums by the United States, on a question which was seen to fall under
Chapter VII of the Charter, can be reconciled with the contention of the United States in the current case that the jurisdic-
tion of the Court cannot comprehend a case involving the continuing use of armed force because the Charter allots the
entire responsibility of such cases to the Organization's political organs. As the Court held in its Judgment of 24 May
1980:
‘it does not seem to have occurred to any member of the Council that there was or could be anything irregular in
the simultaneous exercise of their respective functions by the Court and the Security Council. Nor is there in this
any cause for surprise.‘ (United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, pp. 21-22,
para. 40.)
The Court then cited the terms of Article 12 of the Charter.
65. It is of course true that the United States Diplomatic and Consular Staff in Tehran case did not involve a continuing
use of force in international relations of the kinds at issue in the current case. But it should be recalled that the United
States treated its aborted rescue mission of the hostages as ‘in exercise of its inherent right of self-defence with the aim
of extricating American nationals who have been and remain the victims of the Iranian armed attack on our Embassy‘,
and reported that exercise to the Security Council ‘Pursuant to Article 51 of the Charter of the United Nations‘ (I.C.J.
Pleadings, United States Diplomatic and Consular Staff in Tehran, p. 486). That was, in my view, a sound legal evalu-
ation of the rescue attempt; there had been an armed attack upon the United States Embassy, and American hostages
were being held by force of arms in *293 conditions which the United States reasonably viewed as dangerous. In its
Judgment of 24 May 1980, the Court itself, while not adjudging the legality of the rescue mission, spoke of ‘the armed
attack on the United States Embassy by militants on 4 November 1979‘ (I.C.J. Reports 1980, p. 29). The situation was
not, at the time of the Court's Judgment, one which, like the Corfu Channel case, was wholly in the past; the use of force
against the hostages was continuing, and the threat to the peace – the Chapter VII situation – to which their detention
gave rise was continuing.
66. But, while I believe that the United States Diplomatic and Consular Staff in Tehran case demonstrates that the Court
can adjudge the legal aspects of a case the subject-matter of which at the same time is under the active consideration of
the Security Council under Chapter VII of the Charter, there is a critical distinction between the factual complexities of
the United States Diplomatic and Consular Staff in Tehran case and the case now before the Court.
67. In the former case, there was no consequential dispute about the essential facts surrounding the seizure and detention
of the hostages. They were proclaimed by Iran as they were condemned by the United States and the international com-
munity. Essentially uncontested, they were demonstrated by quantities of unchallenged data filed by the United States
with the Court.
68. In the instant case, the situation is very different. The factual contentions of the Parties vitally differ. It is true that
some allegations of Nicaragua against the United States are sustained by official admissions of the United States. But the
allegations of the United States against Nicaragua are vehemently denied by Nicaragua – even if, as is shown in the ap-
pendix to this opinion, Nicaragua's denials are contradicted by its admissions and other evidence. The essential truth of
United States charges against Nicaragua has been demonstrated in so far as the facts show that it was Nicaragua which
initiated armed subversion of the Government of El Salvador before the United States took responsive action in support
of El Salvador against Nicaragua, and further show that Nicaragua has maintained its material support for the violent
overthrow of the Government of El Salvador. Nevertheless, a critical question is left in a measure of uncertainty.
4. The incapacity of the Court to judge the necessity of continuing use of force in the circumstances of this case
69. For the United States response to Nicaragua's aggressive behaviour to be lawful, that response must be necessary. Is

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 182
the Court in a position to adjudge the necessity of continued United States recourse to measures of *294 collective self-
defence? I doubt that it is, essentially because such a judgment of necessity requires the Court to pass upon whether or
not the United States acts reasonably in refusing the belated professions of the Nicaraguan Government's willingness to
refrain from undermining the governments of its neighbours if the United States will cease undermining it. Such a judg-
ment, involving as it does an appraisal of the motives and good faith of Nicaragua and the United States, is exceedingly
difficult for this Court now to make.
70. One may say that the United States was justified, on grounds of necessity, in exerting pressure upon Nicaragua from
the end of 1981 until at least mid-1983, when it appears that Nicaragua was prepared to affirm that it would not support
rebellion in El Salvador (notably but not exclusively, by its proposal of the four treaties described in the appendix, paras.
174-178), in return for United States cessation of its support for the contras and for the Government of El Salvador.
Nicaragua's acceptance of the Contadora Group's Document of Objectives of 9 September 1983 may be read as embody-
ing a similar affirmation by it. But, if these apparent facts are true, can this Court really judge, by legal criteria, whether
the United States was right or wrong to reject this belated approach of Nicaragua? If the prior unlawful and prevaricating
behaviour of Nicaragua had convinced the United States that Nicaragua's change of tune or tactics could not be trusted,
can the United States be blamed for rejecting Nicaragua's four treaties and like subsequent Nicaraguan professions, made
bilaterally and in the Contadora context, in the apprehension that, once the contras were abandoned or disbanded, and in
its own good time, Nicaragua would resume its armed subversion of its neighbours? After all, the Nicaraguan Govern-
ment has affirmed (in an address of one of the nine governing comandantes) that its policy of ‘interventionism‘ – this is
the word Commander Bayardo Arce chose – ‘cannot cease‘. (‘Commander Bayardo Arce's Secret Speech before the
Nicaraguan Socialist Party (PSN)‘, Department of State Publication 9422, 1985, p. 4.)
71. This is a reasonable question, but I doubt that it is a justiciable question. I say this not because of what the United
States has characterized as the ‘ongoing‘ character of the case and the ‘fluid‘ nature of its changing facts. The Statute of
the Court rightly contemplates that the Court may deal with cases of an ‘ongoing‘ nature; if it did not, the provisions of
the Statute for the indication of ‘any provisional measures which ought to be taken to preserve the respective rights of
either party‘ would not make sense. Nor do I believe that the answer to the question is beyond the Court's capacity be-
cause, or essentially because, of the unwillingness of the United States to take part in the proceedings of the Court on the
merits of the case. It would be difficult for the Court to establish the true motives, and the reasonableness, of the policy
of a Party on a question such as this, even if it were present in Court. The Court is not in a position *295 to subpoena the
files of the Central Intelligence Agency and the White House – or the files of the Nicaraguan Government, not to speak
of the files of the Government of Cuba and of other supporters of the subversion of El Salvador. It is one thing for the
Nuremberg Tribunal ‘ultimately‘ (to use its term) to have arrived at a judgment of necessity after the fact and having be-
fore it as part of the evidence offered by the prosecution the captured files of the defendant. It is another for this Court to
reach a confident judgment on the policies – and motives – of the States immediately concerned, the more so when not
only is one Party absent and, in any event, unwilling, for security reasons, to reveal information it treats as secret, but
when other States inextricably concerned also are not in Court, and apparently no more willing. The difficulties of the
Court adjudicating the validity of a plea of collective self-defence in the absence not only of the United States, a Party to
the case, but in the absence of others of the ‘collective‘, namely El Salvador and Honduras, which are not parties to the
case, are considerable. Nor, as shown below, can El Salvador be blamed for not intervening at the stage of the merits;
contrary to Nicaragua's contention, inferences against the allegations El Salvador makes cannot be drawn by its failure to
appear in Court to sustain those allegations.
72. As for the Government of Nicaragua, whose Congress is not controlled by the opposition, which has no need to adopt
an Intelligence Authorization Act, which is not subject to the oversight of a Select Committee on Intelligence or the rev-
elations of an uncensored press, whose ministries act with the assistance of advisers from authoritarian regimes, whose

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 183
ideology is not liberal, and whose Ministers misrepresent the facts before this Court, the difficulties of arriving at the
truth in respect of its actions and, a fortiori, its motives, are compounded.
73. Moreover, if a fuller finding of the facts might arguably have put the Court in a better position to pass upon the ques-
tion of the necessity of United States action in alleged self-defence, the Court has not troubled to find those facts, as
pointed out below. The fact is that, if its fact-finding powers could, if used, perhaps have enabled the Court to make a
more informed judgment of the necessity or lack of necessity of United States actions in collective self-defence, the
Court has refrained from exercising those powers.
74. In view of all these considerations, the Court would have done well to have prudentially held that a core issue of this
case – whether the United States plea of self-defence is justified – is not now justiciable. However, the Court has decided
to reach a judgment on this question on the basis of such facts as have come to light, as it has found those facts.
75. In my view, the finding of facts by the Court is not only inadequate *296 because of the singular character of the case
and, perhaps, because it has failed to exert its fact-finding powers; the Court, partially because of its misapplication of
the rules of evidence which it has articulated for this case, has even failed adequately to recognize and appraise the facts
which do appear in the record of the proceedings and in this dissenting opinion, including the fact of the purposeful pre-
varication of the Nicaraguan Government. It has also failed to draw the correct legal conclusions from those facts which
it gives some sign of recognizing, as by failing to apply against Nicaragua that fundamental general principle of law so
graphically phrased in the term, ‘clean hands‘.
76. In these circumstances, in which I do not share the view of the Court that the question of the necessity of United
States actions is now justiciable, I feel bound to express a judgment – as has the Court – on the basis of the facts which
are before the Court and in the public domain, inadequate as they may be. For reasons which are set out in subsequent
paragraphs of this opinion, my conclusion is that the United States has acted and does act reasonably – at any rate, not
unreasonably – in deciding that its continuing exertion of armed and other pressures upon Nicaragua is necessary to con-
strain Nicaragua's continuing exertion of armed and other pressures upon El Salvador. If United States action is neces-
sary, then, as a matter of law, it is proper.
77. That is not to say that – as pointed out in paragraph 5 of this opinion –I approve or disapprove of the policies which
the United States is pursuing vis-a-vis Nicaragua, El Salvador or other Central American countries. My conclusion
simply is that, as a matter of international law, the United States acts legally in exerting armed and other pressures upon
Nicaragua with the object of inducing it to desist definitively from its armed subversion of the Government of El Sal-
vador and of other of its neighbours.
C. The Relevance and Effect of the ‘Multilateral Treaty‘ Reservation
1. The Court was and is bound to apply the reservation
78. In my view, one of the several unfounded elements of the Court's decision on jurisdiction was its treatment of the
‘multilateral treaty‘ (Vandenberg) reservation of the United States to the compulsory jurisdiction of the Court, which
withholds from the Court's jurisdiction
‘disputes arising under a multilateral treaty, unless (1) all the 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‘.
*297 For the reasons set out in my dissent, I remain convinced that the Court evaded application of that reservation (see
I.C.J. Reports 1984, pp. 602-613).

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 184
79. The Court's failure to give the multilateral treaty reservation effect at the stage at which it was intended to have effect
– in the jurisdictional phase – has had regrettable results. The United States cited that failure as a reason for withdrawing
from the case. It also cited that failure as a reason for withdrawing from the Court's compulsory jurisdiction. In testimony
before the Senate Foreign Relations Committee on 4 December 1985, the Legal Adviser of the State Department, Judge
Abraham D. Sofaer, declared:
‘We carefully considered modifying our 1946 declaration as an alternative to its termination, but we concluded that
modification would not meet our concerns. No limiting language that we could draft would prevent the Court from
asserting jurisdiction if it wanted to take a particular case, as the Court's treatment of our multilateral treaty reserva-
tion in the Nicaragua case demonstrates. That reservation excludes disputes arising under a multilateral treaty unless
all treaty partners affected by the Court's decision are before the Court. Despite Nicaragua's own written and oral
pleadings before the Court – which expressly implicated El Salvador, Honduras, and Costa Rica in the alleged viola-
tions of the UN and OAS [Organization of American States] Charters and prayed for a termination of U.S. assistance
to them – and statements received directly from those countries, a majority of the Court refused to recognize that
those countries would be affected by its decision and refused to give effect to the reservation.‘ (‘The United States
and the World Court‘, Department of State Current Policy No. 769, p. 3.)
Not only has this argument carried the day in Washington; there may be reason to apprehend that other States which have
made declarations under the Optional Clause with reservations may withdraw their declarations because of a like percep-
tion that the Court may not apply their reservations should occasion for their application arise. One State already has
withdrawn its adherence, perhaps in this apprehension.
80. But while the Court avoided application of the multilateral treaty reservation at the jurisdictional stage, it did join ap-
plication of the reservation to the merits in holding that ‘it is only when the general lines of the judgment to be given be-
come clear that the States 'affected’ could be identified‘ (I.C.J. Reports 1984, p. 425, para. 75). Thus, as the general lines
of today's Judgment became clear, the Court decided whether any States party to the four treaties relied upon by
Nicaragua – most notably, the United Nations Charter and OAS Charter – will be affected by the Judgment. It has
reached the conclusion that El Salvador will be affected – *298 a correct conclusion, which, however, was no less plain
at the jurisdictional stage than it is today.
81. That, indeed, it was perfectly plain at the jurisdictional stage that El Salvador (and Honduras and Costa Rica) would
ineluctably be affected by the Court's Judgment, whatever its content, was, in my view, not only demonstrable in 1984
but demonstrated (see I.C.J. Reports 1984, pp. 604-608). It is demonstrated anew by the Court's endeavour in today's
Judgment to explain why it is that it is apparent now that El Salvador will be affected but was not in 1984. The Court
maintains that, generally speaking, if the relevant claim is rejected on the facts, a third party could not be affected by the
Court's judgment. It continues:
‘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.‘
82. That explanation is patently unpersuasive. In the first place, it was no less obvious in 1984 than it is today that the
United States had used force against Nicaragua. By 26 November 1984, such use of force against it not only had been
charged by Nicaragua; by its legislation and otherwise, the United States had officially and repeatedly acknowledged the
use of force and it was obvious to all the world. For the Court to suggest otherwise is implausible in the extreme. In the
second place, as I observed in 1984:
‘Nor is it persuasive to argue, as the Court does, that if it should reject Nicaragua's Application, there would be no
third States that could claim to be affected by the judgment in the case. That is like saying that, if in a national court,
citizen 'A’ is indicted on charges of terrorism involving the smuggling of narcotics and arms, and foreigners 'B', 'C'

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 185
and 'D', who are situated abroad, are named in the charges as unindicted co-conspirators, and if the court finds cit-
izen 'A' not guilty, then foreigners 'B', 'C' and 'D' are not affected by the judgment – not affected legally, economic-
ally, morally or otherwise.‘
83. The Court has rightly concluded in today's Judgment that application of the multilateral treaty reservation cannot be
avoided on the ground that the United States was not present in the proceedings on the merits so as to raise that objection
at the stage when the Court apparently held that it could be raised. Since the Court itself had held that, when the general
lines of the judgment to be given have become clear, the States ‘affected‘ can be identified, that implied that, at that
stage, the Court would address the issue. For its part, the United States had formally raised and fully argued an objection
based on the multilateral treaty reservation and had never *299 withdrawn or waived that objection; it remained before
the Court, postponed by it to the merits. But, more than this, for the Court to have avoided application of the reservation
on the ground that the United States was not here to press it would have conflicted with the letter and spirit of Article 53
of the Statute. By reason of that mandatory provision, the Court ‘must‘, before deciding upon the claim, ‘satisfy itself,
not only that it has jurisdiction ... but also that the claim is well founded in fact and law‘. Having put off a preliminary
objection of a jurisdictional character on the ground that it is not of an exclusively preliminary character, the Court re-
mained bound to examine that objection at the stage to which it had removed it, whether or not the Party which raised the
objection was present to argue it. To have held the contrary would have deprived Article 53 of the Statute of its effect. It
would also have run counter to what the Court held in the United States Diplomatic and Consular Staff in Tehran case in
interpretation of Article 53:
‘33. It is to be regretted that the Iranian Government has not appeared before the Court in order to put forward its ar-
guments on the questions of law and of fact which arise in the present case; and that, in consequence, the Court has
not had the assistance it might have derived from such arguments or from any evidence adduced in support of them.
Nevertheless, in accordance with its settled jurisprudence, the Court, in applying Article 53 of its Statute, must first
take up, proprio motu, any preliminary question, whether of admissibility or of jurisdiction, that appears from the in-
formation before it to arise in the case and the decision of which might constitute a bar to any further examination of
the merits of the Applicant's case.‘ (United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports
1980, p. 18.)
84. Nicaragua's essential contention against application of the multilateral treaty reservation at this stage is that the argu-
ment of the United States that El Salvador, Honduras and Costa Rica will be affected by the decision in this case has
been vitiated by the United States admission that it seeks overthrow of the Nicaraguan Government. Nicaragua contends
that overthrow is incompatible with self-defence; hence the United States argument ‘simply evaporates‘ (Memorial of
Nicaragua, para. 355).
85. This simple argument is unduly simplistic. In the first place, it is by no means established that the United States seeks
the overthrow of the Nicaraguan Government (appendix to this opinion, paras. 23-26, 157-159, 200-205). Second, if, ar-
guendo, one assumes that the purpose of United States military and paramilitary activities in and against Nicaragua is the
overthrow of its Government, it does not follow that that necessarily is incompatible with, and constitutes an abandon-
ment of, the argument of self-defence. In some, indeed most, instances, overthrow of the aggressor *300 government
might be an unnecessary and disproportionate act of selfdefence, but in others it may be necessary and proportionate. It
depends on the facts (if they can be found).
86. The official position of the United States has been and remains that it does not seek the overthrow of the Government
of Nicaragua, and that the pressures which it continues to exert upon that Government are lawful measures of collective
self-defence taken in support of El Salvador. Contrary to the contentions of Nicaragua before the Court, the United States
has abandoned neither of these positions. While Nicaragua maintains that, with its withdrawal from the case, the United

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 186
States no longer spoke of collective self-defence as the legal justification for its exertion of pressures upon Nicaragua,
‘Revolution Beyond Our Borders‘, published by the Department of State in September 1985, some nine months after the
announcement of United States withdrawal from the Court's proceedings, re-affirms that justification. As recently as 15
January 1986, Secretary of State Shultz, in a public address entitled, ‘Low-Intensity Warfare: the Challenge of Ambigu-
ity‘, maintained that the Nicaraguans:
‘have committed aggression against their neighbors and provided arms to terrorists like the M-19 group in
Colombia, but cynically used the International Court of Justice to accuse us of aggression because we joined
with El Salvador in its defense‘ (Department of State, Current Policy No. 783, p. 1).
87. Since the multilateral treaty reservation is a reservation in force which limits the extent of United States submission
to the Court's jurisdiction, the Court is bound to apply it and thus to revert to the question which it postponed in its Judg-
ment of 26 November 1984: will El Salvador, Honduras and Costa Rica, or any of them, be affected by the Judgment of
the Court in this phase of the case?
88. It is plain that the Court's Judgment, which holds in favour of Nicaragua's essential claims and against the essential
defence of the United States, must affect El Salvador, Honduras and Costa Rica. They are affected not only legally, but
politically, militarily, economically and morally (it will be observed that the multilateral treaty reservation does not spe-
cify ‘legally affected‘). The very pleadings of Nicaragua reinforce that conclusion. As I pointed out in my dissent to the
Judgment of 26 November 1984:
‘The very first numbered paragraph of its Application claims that the United States has installed more than '10,000
mercenaries ... in more than ten base camps in Honduras along the border with Nicaragua ...’ ... Nicaragua has also
alleged that there are 2,000 United States-supported 'mercenaries' operating against it from Costa Rica ... and that the
Government of Costa Rica is acting in concert *301 with the United States ... Moreover, in the recent oral argument
in this phase of the proceedings, the Agent of Nicaragua alleged that, in this dispute, 'the United States has bases,
radar stations, spy planes, spy ships – the armies of El Salvador and Honduras at its service ...'; that is to say,
Nicaragua has alleged that the United States acts in concert with Honduras and El Salvador. It is accordingly plain
that, if the pleadings of Nicaragua are to be accepted for these purposes as accurate, and if Nicaragua were in a de-
cision of the Court to be accorded the remedies which it seeks, Honduras, Costa Rica and El Salvador necessarily
would be 'affected' by the Court's decision. Point (g) of what Nicaragua in its Application ... requests the Court to ad-
judge and declare makes this particularly clear. Nicaragua requests that the Court hold that the United States
'is under a particular duty to cease and desist immediately ... from all support of any kind – including the provi-
sion of training, arms, ammunition, finances, supplies, assistance, direction or any other form of support – to any
nation ... engaged or planning to engage in military or paramilitary actions in or against Nicaragua ...'
It is a fact that the United States is heavily engaged in supporting Honduras and El Salvador with training, arms,
finances, etc. Nicaragua itself in its Application and pleadings alleges that Honduras and El Salvador are en-
gaged in military or paramilitary actions in or against Nicaragua, in concert with the United States. Honduras
and El Salvador, in their communications to the Court, maintain that actually it is Nicaragua which has engaged
and is engaging in a variety of acts of direct and indirect aggression against them, including armed attacks ... In
short, Nicaragua seeks a judgment from the Court requiring the United States to cease and desist from actions
which Nicaragua claims are unlawfully directed against Nicaragua, with the assistance of Honduras, Costa Rica
and El Salvador, whereas the United States, Honduras and El Salvador claim that these very actions are conduc-
ted in collective self-defence against Nicaraguan acts of aggression. The judgment which the Court reaches on
this critical point accordingly must 'affect' not only the United States but Honduras and El Salvador, and – in
view of Nicaragua's allegations – Costa Rica as well.‘
89. While the final submissions of Nicaragua in the case are cast in general terms, they do not derogate from the forego-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 187
ing analysis. The Court is requested to adjudge and declare that:

‘the United States has violated the obligations of international law indicated in the Memorial ... and to state in
clear terms the obligations which the United States bears to bring to an end the aforesaid breaches of internation-
al law ...‘ (Hearing of 20 September 1985).
*302 The Court has responded positively to the substance of Nicaragua's request. The essence of the contentions of
Nicaragua is to brand the United States as in violation of its obligations not to use force against and not to intervene
against Nicaragua, and, correspondingly and necessarily, the essence of Nicaraguan contentions entails rejection of the
United States defence that it acts in collective self-defence. But El Salvador and Honduras support the claim that the
United States acts in collective selfdefence, not only verbally, but by their actions in the field. El Salvador and Honduras
necessarily are affected by the Court's treatment of the United States claim to act in collective self-defence, and would be
whether the Court rejected – or upheld –that claim. To have held otherwise, on the ground that the only Parties to the in-
stant case are the United States and Nicaragua and that the Court's Judgment will be directed to and bind them alone,
would have been patently unconvincing. It not only would have vitiated the multilateral treaty reservation but run counter
to the sense of Articles 62 and 63 of the Statute, which recognize and provide for the possibility that States not parties to
a case ‘may be affected‘ by the decision in the case.
90. Nicaragua further argues that neither El Salvador nor Costa Rica nor Honduras could be ‘affected‘ by a decision in
this case, since ‘no legitimate‘ rights or interests of those States would be prejudiced by an adjudication of Nicaragua's
claims against the United States. That is a question-begging argument. Perhaps it is Nicaragua's view that neighbouring
States have no right or interest in resisting Sandinista-supported insurgencies; that their best interests lie in submitting to
the imposition of what Commander Bayardo Arce proclaims to be ‘the dictatorship of the proletariat‘ (Arce, loc. cit., p.
4). But clearly that is not a view shared by the Governments of El Salvador, Honduras and Costa Rica; they appear to be-
lieve that it is right to resist Nicaragua's support of subversion. Whether they may ‘legitimately‘ do so depends on the
facts characterizing and the law governing the actions of Nicaragua and the facts and law involved in responsive actions
of the United States, El Salvador, Honduras and Costa Rica. It does not depend upon a preclusive or conclusory determ-
ination of what is legitimate.
2. The relationship of customary international law to the reservation
91. The substantial Nicaraguan argument in respect of the multilateral treaty reservation is that claims based on custom-
ary and general international law, and on bilateral treaties, are not covered by the proviso and so are before the Court for
determination. While the matter is by no means that simple – as my dissent to the Judgment of 26 November 1984 indic-
ated in paragraphs 85-90 –Nicaragua is correct in pointing *303 out that the Court held in paragraph 73 of that Judgment
that principles such as
‘the non-use of force, non-intervention, respect for the independence and territorial integrity of States, and free-
dom of navigation, continue to be binding as part of customary international law, despite the operation of provi-
sions of conventional law in which they have been incorporated‘.
92. Having given further consideration to the problem of the relationship between the principles and provisions of the
United Nations Charter and the OAS Charter, on the one hand, and of customary international law, on the other – as to
which I expressly reserved my position in paragraph 90 of my dissent to the Court's Judgment of 26 November 1984 – I
have reached the following conclusions.
93. This is a case in which the Parties, the United States and Nicaragua, both are Members of the United Nations and of
the Organization of American States. They are bound by the Charters of those Organizations. The cardinal principles of
international law which today govern the use of force in international relations are found in the United Nations Charter,
and, in so far as States of the Americas are concerned, the cardinal principles of international law binding them which

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 188
govern intervention in the affairs of other American States are found in the Charter of the Organization of American
States. The multilateral treaty reservation withholds from the jurisdiction of the Court disputes arising under a multilater-
al treaty unless all parties to the treaty affected by the decision are also parties to the case before the Court. It has been
shown that El Salvador, Honduras and Costa Rica must be affected by the decision of the Court, a conclusion which the
Court itself in substance belatedly has accepted, and those States are not parties to the case. It follows that the Court can-
not, in adjudicating the claims of Nicaragua, rely upon and apply the principles and provisions of the United Nations and
OAS Charters. Can the Court nevertheless give genuine effect to the multilateral treaty reservation by applying those
very principles and provisions, by finding that those principles and provisions, or some of them, form part of customary
international law?
94. The argument that the principles if not the provisions of the United Nations Charter governing the use of force in in-
ternational relations have been incorporated into the body of customary international law is widely and authoritatively
accepted, despite the fact that the practice of States manifests such irregular support for the principles of law which the
Charter proclaims. Indeed, it could even be argued that the practice, in contrast to the preachment, of States indicates that
the restrictions on the use of force in international relations found in the Charter are not part of customary international
law.
95. However, even if the argument is accepted – and it is generally *304 accepted – that Charter restrictions on the use of
force have been incorporated into the body of customary international law, so that such States as Switzerland, the
Koreas, and diminutive States are bound by the principles of Article 2 of the Charter even though they are non-members,
the fact remains that Nicaragua and the United States are Members of the United Nations (and the OAS as well). Since
they are bound by their Charters, it would be an artificial application of the law to treat them as if they were not bound,
but bound only by customary international law, which, however, is essentially the same – not, presumably, in embracing
a procedural proviso such as reporting to the Security Council under Article 51, but the same in so far as the content of
Article 2, paragraph 4, is concerned. That would be an application of the law of this case – which includes the multilater-
al treaty reservation – which would avoid rather than apply that reservation. Since Article 2, paragraph 4, and Article 51
(and comparable provisions of the OAS Charter as well as those dealing with intervention) are the specific and governing
legal standards to which the Parties in this case have agreed, and since the multilateral treaty reservation debars the Court
from applying to the dispute those standards as expressed in those treaties, I conclude that the Court lacks jurisdiction to
apply both those treaties and their standards to this dispute.
96. I so conclude whether or not it is correct to hold that these principles also form what is contemporary customary in-
ternational law on the use of force in international relations. If, as the International Law Commission has put it, ‘The
principles regarding the threat or use of force laid down in the Charter are ... rules of general international law which are
today of universal application‘, and ‘Article 2, paragraph 4, together with other provisions of the Charter, authoritatively
declares the modern customary law regarding the threat or use of force‘ (Yearbook of the International Law Commission,
1966, Vol. II, pp. 246, 247), and if, as counsel for Nicaragua argued, these provisions of Article 2, paragraph 4, are the
‘embodiment of general principles of international law‘ (Hearing of 25 April 1984), then there is little ground for the
Court considering the dispute before it apart from the terms of Article 2, paragraph 4. It is of course true that the same
provision of law may be found in customary international law and in a treaty. Codification of a customary norm in a
treaty does not necessarily displace the custom, and certainly the incorporation of a provision of a universal treaty into
the body of customary international law does not displace the treaty. But in the case before the Court, the Court is con-
fronted with a reservation to its jurisdiction which, by the weight of its jurisprudence of more than 60 years, it is bound
to apply so as to give it effect rather than deprive it of effect. As Judge Sir Hersch Lauterpacht put it in respect of the
Court's jurisdiction:
*305 ‘the established practice of the Court – which, in turn, is in accordance with a fundamental principle of in-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 189
ternational judicial settlement – [is] that the Court will not uphold its jurisdiction unless the intention to confer it
has been proved beyond reasonable doubt‘ (case of Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p.
58).
Thus the Court is bound to give substantive effect to the multilateral treaty reservation. It is not free to avoid its applica-
tion by an argument which, if technically defensible, in real terms would vitiate a limitation which the United States has
imposed upon the jurisdiction of the Court. Accordingly, while recognizing that there is room for the contrary conclusion
which the Court has reached, I conclude that the generally accepted essential, even if incomplete, identity of Charter
principles and principles of customary international law on the use of force in international relations, rather than author-
izing the Court to apply those customary principles to the central issues of this case, precludes the Court from doing so
by reason of the limitations imposed upon the Court's jurisdiction by the multilateral treaty reservation.
97. Such a preclusion does not, however, extend to questions of freedom of navigation, as to which customary interna-
tional law long antedates the Charter and has not been subsumed by it.
98. Nor can it be persuasively argued that the sweeping provisions of the OAS Charter concerning intervention constitute
customary and general international law. There is no universal treaty which has incorporated those provisions into the
body of general international law. There is hardly sign of custom – of the practice of States – which suggests, still less
demonstrates, a practice accepted as law which equates with the standards of non-intervention prescribed by the OAS
Charter. State practice in the Americas – by States of Latin America as by others – does not begin to form a customary
rule of non-intervention which is as categoric and comprehensive as are the provisions of the OAS Charter. Thus it may
be contended that, in this case, the Court can apply such customary international law of non-intervention as there is, a
customary international law which is much narrower than that which the OAS Charter enacts for the parties to it. The es-
sence of that law long has been recognized to prohibit the dictatorial interference by one State in the affairs of the other.
It accordingly may be argued that the Court is not debarred by the thrust of the multilateral treaty reservation from con-
sidering whether the measures taken by the United States against Nicaragua, direct and indirect, constitute dictatorial in-
terference in the affairs of Nicaragua.
99. But it may be argued to the contrary that, where, as here, the United States and Nicaragua (and the ‘affected‘ States)
are bound by the terms of the OAS Charter, and where the provisions of that Charter embrace not *306 only dictatorial
interference but much more pervasive proscription of intervention, the greater includes the lesser; that, since the OAS
Charter sets out between the Parties, and as among them and the States affected, the specific and governing legal stand-
ards, and since the multilateral treaty reservation debars the Court from application of those standards, it withholds from
the Court jurisdiction to pass upon complaints of intervention in this case, all of which must fall within the capacious
terms of the OAS Charter. In my view, the latter argument, while open to challenge, is the stronger. Moreover, the com-
plaints of intervention in this case are so intimately involved with the complaints of the unlawful use of force – the facts
that underlie both causes of action correspond so closely – that the artificiality of treating the Court as having jurisdiction
to deal with charges of intervention and not having jurisdiction to deal with charges of the unlawful use of force rein-
forces this conclusion.
D. The Question of Jurisdiction under the Treaty of Friendship, Commerce and Navigation
100. In its Judgment of 26 November 1984, the Court held that, in addition to its having jurisdiction under the Optional
Clause of the Court's Statute, it had jurisdiction, ‘limited as it is‘, by reason of the terms of the 1956 Treaty of Friend-
ship, Commerce and Navigation between Nicaragua and the United States (I.C.J. Reports 1984, p. 426). The Court noted
that that Treaty contains a compromissory clause providing that:
‘Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily adjus-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 190
ted by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by
The Court observed that Nicaragua claimed that certain provisions of the Treaty had been violated by the United States
and it concluded:
‘Taking into account these Articles of the Treaty of 1956, particularly the provision . . . for the freedom of commerce
and navigation, and the references in the Preamble to peace and friendship, there can be no doubt that, in the circum-
stances in which Nicaragua brought its Application to the Court, and on the basis of the facts there asserted, there is
a dispute between the Parties . . . as to the 'interpretation or application’ of the Treaty . . . Accordingly, the Court
finds that, to the extent that the claims in Nicaragua's Application constitute a dispute as to the interpretation or ap-
plicati n of the Articles of the Treaty of 1956 . . . the Court has jurisdiction under that Treaty to entertain such
claims.‘
*307 101. Quite apart from the failure of Nicaragua and the Court at that stage sufficiently to relate Nicaragua's claims
against the United States for the unlawful use of force to the terms of this commercial treaty, this apparently plausible
holding of the Court was plausible only because the Court failed to refer to the terms of Article XXI (1) (d) of the Treaty,
which provides that:
‘1. The present Treaty shall not preclude the application of measures:
(d) necessary to fulfill the obligations of a Party for the maintenance or restoration of international peace and secur-
ity, or necessary to protect its essential security interests . . .‘
In this regard, my dissent to the Court's Judgment of 26 November 1984 concluded:
‘Now it cannot be argued – and Nicaragua did not argue, nor does the Court hold – that, since the Treaty 'shall not
preclude the application of measures' . . . which are necessary to fulfil the obligations of a Party for the maintenance
of international peace and security or to protect its essential security interests, these very exclusions entitle the Court
to assume jurisdiction over claims based on the Treaty that relate to . . . the maintenance of international peace and
security or essential security interests. It is clear that, where a treaty excludes from its regulated reach certain areas,
those areas do not fall within the jurisdictional scope of the treaty. That this preclusion clause is indeed an exclusion
clause is demonstrated not only by its terms but by its travaux preparatoires, which were appended to the United
States pleadings in the case of United States Diplomatic and Consular Staff in Tehran (I.C.J. Pleadings, Ann. 50, p.
233). A list of a score of Treaties of Friendship, Commerce and Navigation, including that with Nicaragua, is found
at page 233, which is followed by a 'Memorandum on Dispute Settlement Clause in Treaty of Friendship, Commerce
and Navigation with China’ which contains the following paragraph:
'The compromissory clause . . . is limited to questions of the interpretation or application of this treaty; i.e., it is a
special not a general compromissory clause. It applies to a treaty on the negotiation of which there is voluminous
documentation indicating the intent of the parties. This treaty deals with subjects which are common to a large num-
ber of treaties, concluded over a long period of time by nearly all nations. Much of the general subject-matter – and
in some cases almost identical language – has been adjudicated *308 in the courts of this and other countries. The
authorities for the interpretation of this treaty are, therefore, to a considerable extent established and well known.
Furthermore, certain important subjects, notably immigration, traffic in military supplies, and the ‘essential interests
of the country in time of national emergency‘, are specifically excepted from the purview of the treaty. In view of
the above, it is difficult to conceive how Article XXVIII could result in this Government's being impleaded in a mat-
ter in which it might be embarrassed.’ (At p. 235; emphasis supplied.)
A Second memorandum, entitled 'Department of State Memorandum on Provisions in Commercial Treaties re-
lating to the International Court of Justice', similarly concludes, first with respect to the scope of the jurisdiction
accorded to the Court under FCN treaties, and second with respect to national security clauses:
'This paper [of the Department of State] . . . points out a number of the features which in its view make the provision

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 191
satisfactory . . . These include the fact that the provision is limited to differences arising immediately from the spe-
cific treaty concerned, that such treaties deal with familiar subject-matter and are thoroughly documented in the re-
cords of the negotiation, that an established body of interpretation already exists for much of the subject-matter of
such treaties, and that such purely domestic matters as immigration policy and military security are placed outside
the scope of such treaties by specific exceptions.' (Ibid., p. 237; emphasis supplied.)
Article XXI of the Treaty thus serves to indicate that the parties to the Treaty acted to exclude from its scope the
kind of claim ('restoration of international peace and security' and protection of 'essential security interests')
which Nicaragua seeks to base upon it.‘ (I.C.J. Reports 1984, pp. 635-637, para. 128.)
102. Nicaragua's Memorial on the merits, and Nicaragua's counsel in extensive and detailed oral argument on various
provisions of the Treaty, had remarkably little to say about Article XXI (1) (d). Not a word was said about the travaux
preparatoires just quoted. As for the Treaty provision itself, Nicaragua's Memorial submits:
‘One party to a treaty, however, cannot absolve itself of all responsibility*309 for violations of the provisions of the
treaty by simply invoking an exculpatory provision. It is for the Court and not for the Parties to determine the valid-
ity of such assertions.
.............................
Article XXI (1) (d) cannot be invoked to justify the activities of the United States. This provision refers impli-
citly to the provisions in the United Nations Charter relating to the maintenance of international peace and se-
curity. Nicaragua has shown . . . that the military and paramilitary activities conducted by the United States in
and against Nicaragua are completely incompatible with these provisions of the Charter.‘ (Memorial of
Nicaragua, paras. 430 and 432.)
103. In oral argument, Nicaraguan counsel dismissed the significance of Article XXI (1) (d). As to whether the measures
which the United States has pursued against Nicaragua are necessary to fulfil its obligations for the maintenance of inter-
national peace and security, Nicaraguan counsel said that the preconditions of application of that provision ‘are obvi-
ously not met in this case‘. As to whether the measures which the United States has pursued against Nicaragua are neces-
sary for the United States to protect its essential security interests, counsel professed to deal with this question by trans-
lating ‘essential security interests‘ as ‘vital interests‘ and then by claiming that this provision deals with a ‘state of neces-
sity‘ (ignoring the fact that another provision of the Treaty deals with the right of the Parties ‘to apply measures that are
necessary to maintain public order and protect the public health, morals and safety‘). Nicaraguan counsel gave no weight
to the contentions of the United States that the policies of Nicaragua towards its neighbours and Nicaragua's intensifying
integration with Soviet-led States constitutes, in the view of the United States, a challenge to its ‘essential security in-
terests‘. For its part, the Court considers that United States mining of Nicaraguan ports, and its direct attacks on Nicara-
guan ports and oil installations as well as its trade embargo, ‘cannot possibly‘ be justified as ‘necessary‘ to protect the es-
sential security interests of the United States. The Court also holds that a State – in this case, the United States acting un-
der Article XXI (1) (d) of the Treaty – can have no ‘obligations‘ to act in collective self-defence, apart from obligations
imposed by decisions of the Security Council taken on the basis of Chapter VII of the United Nations Charter or required
by the OAS under Articles 3 and 20 of the Inter-American Treaty of Reciprocal Assistance (Rio Treaty).
104. There is room for dispute over whether the measures taken by the United States against Nicaragua which are at issue
in this case are measures ‘necessary to fulfil the obligations of a Party for the maintenance or *310 restoration of interna-
tional peace and security, or necessary to protect its essential security interests‘. That question, in so far as it relates to
such obligations, is examined in a later section of this opinion. It may be observed at this juncture, however, that the
Court's holding that the only obligations to act in collective self-defence are those required by the United Nations Secur-
ity Council or the OAS not only derives from a misreading of the relevant treaty law. If the Court were correct – and it is
not – then the obligations of the Parties to the NATO and Warsaw Treaties, among others, would be illusory. Under Art-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 192
icle 5 of the North Atlantic Treaty, for example:

‘The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered
an attack against them all; and consequently they agree that, if such an armed attack occurs, each of them, in exercise
of the right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nations,
will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties,
such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North
Atlantic area.‘
(To like effect, see Article 4 of the Treaty of Friendship, Co-operation and Mutual Assistance signed at Warsaw on 14
May 1955.) As for the Court's conclusion that direct United States pressures against Nicaragua ‘cannot possibly‘ be justi-
fied as ‘necessary‘ to protect essential security interests of the United States, it may be said that, in so far as the Court, or
any court, is suited to make such a judgment, this Court's judgment appears to have been made in disregard of
Nicaragua's subversion of its neighbours which surely affects essential security interests of the United States (see I.C.J.
Reports 1984, pp. 195-199). (It may be recalled that Lauterpacht, in The Function of Law in the International Com-
munity, concluded that it is ‘doubtful whether any tribunal acting judicially can override the assertion of a State that a
dispute affects its security . . .‘ (At p. 188.))
105. What is in any event clear is that Article XXI of the Treaty provides that ‘the present Treaty shall not preclude the
application of [such] measures‘. The application of such measures is not regulated by the Treaty; the preclusion clause is
an exclusion clause. In my view, where a treaty excludes from its regulated reach certain areas, those areas do not fall
within the jurisdictional scope of the Treaty. ‘In the face of such explicit language, it is difficult to see how any tribunal
could use the Treaty to subject to its own jurisdiction matters that had been expressly excluded.‘ (W. Michael Reisman,
‘Has the International Court Exceeded its Jurisdiction?*311 ‘, American Journal of International Law, Vol. 80, 1986, pp.
130-131.) That this Treaty's preclusion clause is indeed an exclusion clause is indicated not only by its terms but by the
quoted travaux preparatoires. Thus – apart from the Treaty's essentially commercial concerns – I remain of the view that
the Treaty fails to provide a basis of jurisdiction for the Court in this case, certainly for the central questions posed by it,
unless, at any rate, United States reliance upon Article XXI (1) (d) is, on its face, without basis.
106. However, the Court has reached another conclusion, essentially founded in the position that a dispute over the valid-
ity of United States characterization of the measures it has taken as measures falling within the scope of Article XXI (1)
(d) is a dispute over ‘the interpretation or application of the present Treaty‘ and, as such, falls within the Court's jurisdic-
tion. If one accepts that position as correct, then one is brought back to the paramount problem of the case: are the meas-
ures taken by the United States against Nicaragua justifiable as measures of collective self-defence or as measures neces-
sary to protect its essential security interests? That question, in turn, can only be decided in accordance with the govern-
ing provisions of the United Nations Charter. The multilateral treaty reservation to the Court's jurisdiction under Article
36, paragraph 2, of the Statute has no effect upon the Court's jurisdiction to decide a dispute arising under a bilateral
treaty on which a party relies pursuant to Article 36, paragraph 1, of the Statute. This commercial Treaty contains no pro-
visions like Article 2, paragraph 4, or Article 51 of the Charter; the Treaty itself provides no basis for the Court's making
a judgment on the use of force and of intervention in international relations. The Court accordingly is not invested with
jurisdiction to pass upon the issues at the core of this case by the terms of the bilateral Treaty of Friendship, Commerce
and Navigation. At most, the Treaty provides a basis for the Court's jurisdiction – ‘limited as it is‘, in the Court's words
(or what were the Court's words in 1984) – to pass upon the legality of measures relating to the terms of the treaty, such,
arguably, as the United States mining of Nicaraguan ports and the imposition of the trade embargo. However, in reaching
such judgments, the Court will be bound to apply Charter provisions to the determination of the question of whether the
United States is absolved of breach of the Treaty by reason of the Treaty's not precluding the application of measures
‘necessary to fulfill‘ its ‘obligations for the maintenance or restoration of international peace and security‘ or to ‘protect

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 193
its essential security interests‘. As indicated elsewhere in this opinion, in my view the actions of the United States vis-
a-vis Nicaragua are in essential accord with the obligations which it has undertaken under the Rio Treaty for the mainten-
ance or restoration of international peace and security, and consistent with the Charter as well.
*312 E. The Effect of the Absence of El Salvador
107. Before turning to the question of the effect on the Court's procedures of the absence of the United States from this
stage of the proceedings, observations on the absence of El Salvador are in order. From the outset of the case, the United
States maintained that the immediate object of Nicaraguan activities tantamount to armed attack is El Salvador, and the
United States presented an affirmative defence essentially based on the contention that it acts in collective self-defence
with El Salvador. On 15 August 1984, El Salvador filed a Declaration of Intervention under Article 63 of the Statute
which, while supporting these United States contentions, sought to show why, under the treaties on which Nicaragua re-
lied in its Application, the Court lacked jurisdiction in the case. At the time, the logic of El Salvador's claim to intervene
under Article 63 in the jurisdictional phase of the proceedings was summarized in the following way:
‘First, El Salvador claims to be acting in collective self-defence with the United States to resist Nicaraguan interven-
tion and aggression;
Second, the United States claims to be acting in collective self-defence with El Salvador to resist Nicaraguan inter-
vention in and aggression against El Salvador;
Third, El Salvador itself, by reason of the terms of its adherence to the Court's compulsory jurisdiction, is not subject
to the Court's jurisdiction in this class of matter involving claims of aggression, self-defence, etc., and El Salvador
does not consent to the Court's jurisdiction;
Fourth, the Court cannot adjudge the legality of the actions of the United States of which Nicaragua complains
without in effect adjudging the legality of the actions of El Salvador, for the United States and El Salvador act
jointly in collective self-defence against Nicaragua;
Fifth, since the Court cannot exercise jurisdiction either in the absence of El Salvador whose rights are at issue, or
where Nicaragua directly seeks to bring El Salvador before the Court in this class of matter, it equally cannot exer-
cise jurisdiction where the effect of Nicaragua's action against the United States – were the Court to assume jurisdic-
tion over it – would be indirectly to bring El Salvador's rights before the Court in the very class of matter which El
Salvador's adherence to the Court's compulsory jurisdiction excludes.‘ (My dissenting opinion to the Court's Order
of 4 October 1984, I.C.J. Reports 1984, p. 227.)
El Salvador then also reserved the right in a later, substantive phase of the *313 case to address the interpretation and ap-
plication of the conventions to which it is a party which had been invoked by Nicaragua.
108. This was only the second time in the history of the Court in which a State sought to intervene under Article 63 of
the Statute and the first in which it sought to do so at the jurisdictional stage of the proceedings. El Salvador's request
was significant and substantial, but it posed a number of questions, which the Court would have done well to have elu-
cidated at the oral hearings which were contemplated under Article 84 of the Rules of Court, which provides that, if ‘an
objection is filed to . . . the admissibility of a declaration of intervention, the Court shall hear the State seeking to inter-
vene and the parties before deciding‘.
109. However, the then President of the Court caused to be issued, on 27 September 1984, a press release which in effect
indicated that El Salvador's request to intervene would be denied. That release was issued even before the Court had met
to deliberate on the request. (See in this regard Judge Oda's separate opinion, I.C.J. Reports 1984, p. 221, and my dissent-
ing opinion, ibid., pp. 232-233.)
110. When the Court met, it promptly issued an Order denying El Salvador's request to intervene. It failed to accord El

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 194
Salvador a hearing on its request, despite the terms of Article 84 (and despite El Salvador's request for a hearing). While
Nicaragua had voiced objections to El Salvador's request, it purported not to have filed ‘an objection‘, a view which the
Court in effect appears to have adopted. (See I.C.J. Reports 1984, pp. 227-233.) In denying El Salvador a hearing and
summarily dismissing its request, the Court's conclusory Order provided the barest statement of reasons – so bare that the
Order may be regarded as virtually unreasoned.
111. These proceedings have been the subject of extensive analysis by an authority on the Court's procedures, Jerzy
Sztucki, Professor of International Law at the University of Uppsala. He not only finds the failure to accord El Salvador a
hearing and indeed to permit it to intervene at the stage of jurisdiction procedurally and legally unfounded. Professor
Sztucki has felt constrained to record his conclusion that
‘the Court's decision might reinforce the suspicion – noticeable in other aspects of the Nicaragua case – of
politicization of judicial proceedings and anti-Western bias‘. (‘Intervention under Article 63 of the I.C.J. Statute
in the Phase of Preliminary Proceedings: The 'Salvadoran Incident’‘, American Journal of International Law,
Vol. 79, October 1985, p. 1036.)
112. It may reasonably be assumed that the procedures of the Court's treatment of El Salvador's Declaration of Interven-
tion influenced El Salvador's decision not to exercise its right of intervention at the stage of the merits – a decision which
necessarily had great impact on the content and tenor of the proceedings on the merits, and which may have had like im-
pact *314 on the shaping of the Court's Judgment (as surely has the absence of the United States).
113. Nicaragua has contended that, by reason of El Salvador's failure to intervene at the stage of the merits, an inference
should be drawn against the truth of the facts which El Salvador alleges in its Declaration of Intervention. In my view no
such inference can reasonably be drawn, particularly because of the manner in which the Court treated El Salvador's De-
claration. In the circumstances, for this and other reasons – notably, the withdrawal of the United States – it would have
been surprising if El Salvador had chosen to intervene at the stage of the merits. In any event, it was legally free to inter-
vene or not to intervene. But it does not follow from El Salvador's choosing not to intervene that its factual and legal
contentions must be discounted. But, as will be shown, not only does Nicaragua contend that they should be discounted;
in the course of the Court's Judgment, El Salvador's factual and legal contentions are discounted.
F. The Effect of the Absence of the United States
1. Events bearing on the absence of the United States
114. In its statement of 18 January 1985 withdrawing from these proceedings –a statement which itself attracts the criti-
cism expressed in the opinions accompanying today's Judgment of Judgments Jennings and Lachs – the United States, in
addition to rejecting the Court's holdings on jurisdiction and admissibility, cited as a cause of its withdrawal the Court's
having ‘summarily‘ rejected El Salvador's application ‘without giving reasons and without even granting El Salvador a
hearing, in violation of El Salvador's right and in disregard of the Court's own rules‘ (International Legal Materials, Vol.
XXIV, No. 1, January 1985, p. 248). As another cause of its withdrawal, the United States statement more generally criti-
cized, ‘The haste with which the Court proceeded to judgment on these issues – noted in several of the separate and dis-
senting opinions . . .‘ (Ibid. See I.C.J. Reports 1984, pp. 207, 474, 616.) In a letter of 19 April 1984, the United States
earlier expressed its concern at the convoking of the oral hearings on provisional measures at a date which did not afford
it sufficient opportunity, within the meaning of Rule 74, paragraph 3, of the Rules of Court, to be fairly ‘represented‘ at
the hearing ‘since there is manifestly inadequate time to develop fully its presentation . . .‘.
115. On 27 December 1984, some three weeks before a decision by the United States to withdraw from the case was an-
nounced, the then President of the Court gave an interview to the Associated Press in The Hague, in which President Eli-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 195
as is reported to have stated, with respect to the United States 1984 notification relating to its 1946 adherence to the com-
pulsory jurisdiction of the Court: ‘It is not acceptable in a civilized *315 system of international law that any nation with-
draws without notice from a solemn undertaking like that.‘ President Elias continued, according to the Associated Press
report: ‘If a State withdraws its acceptance of our jurisdiction without notice, that leads to anarchy and disorder.‘ He is
quoted as adding: ‘A State that defies the Court will not get away with it. Although some States try to show that they do
not care, they do in reality.‘ The report continues that, although President Elias conceded that the potential politicization
of the Court ‘is a very, very important issue‘, the Court was not being used as a propaganda forum in the Nicaragua-
United States case:
‘It is often said that the current dispute between the United States and Nicaragua is a purely political affair. But it is
a question of aggression; a breach of legal rights and duties between States. Nicaragua was entitled to bring the case
before the Court, and that has been our ruling. If it had been a purely political case, without legal matters we can
deal with, we would have thrown it out immediately.‘
The then President is also quoted by Associated Press as stating that, while the Court has no enforcement powers, it ‘can
help develop a world public order and make that a real force‘ through its rulings. He is reported to have discounted the
United States claim that proceedings in Court would jeopardize the Contadora process, pointing out that the United
States obtained a World Court ruling on United States hostages in Tehran while bilateral negotiations were being conduc-
ted. ‘We sided with the Americans that time‘, he said, according to the Associated Press story. ‘And that is one of the
reasons we declared the Nicaraguan complaint admissible. We cannot rule blatantly against ourselves.‘ President Elias is
reported also to have stated that the United States-led invasion of Grenada was ‘contrary‘ to ‘behaving ac ording to the
rule of law‘. ‘Smaller nations wonder what happened to the rule of law when the United States can behave like this‘,
commented President Elias on the 1983 Grenada invasion, the Associated Press story reports. He is quoted as continuing:
‘Modern international law will not tolerate the gunboat diplomacy of the past centuries.‘ Dr. Shabtai Rosenne has writ-
ten:
‘Public comment on a pending case by any judge, let alone the President, is absolutely unprecedented and contrary to
all standards of judicial propriety . . . That interview, which was given before the United States announced its inten-
tion not to participate in further proceedings . . . and indeed may have precipitated it, was reported in the Press.‘
(‘The Changing Role of the International Court‘, Israel Law Review, Vol. 20, 1985, p. 196 (note 33).)
*316 2. The meaning of Article 53 of the Statute
116. Article 53 of the Court's Statute provides:

‘1. 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.
2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and
37, but also that the claim is well founded in fact and law.‘
117. What is the proper meaning and interpretation of Article 53? It is clear that the Court can render a judgment in the
absence of a party. Before doing so, it must ‘satisfy itself‘ – indeed, it ‘doit s'assurer‘ – not only that it has jurisdiction
‘but also that the claim is well founded in fact and law‘. As the Court held in the Corfu Channel case, it must ‘convince
itself‘ that the appearing party's submissions are well founded (I.C.J. Reports 1949, p. 248). To say (as did Nicaragua's
counsel) that an objection to those submissions must be proved by the party that raises it is beside the point; the real
point is that the Court must be convinced. If, as in the current case, the Defendant has raised objections, the Applicant, if
it is to succeed, must convince the Court of the inadequacy of those objections.
118. It is equally true that, if a claim is to be held to be well founded in fact and law, it can be so only if a sufficient af-
firmative defence to the claim is not well founded in fact and law. If such an affirmative defence is well founded in fact
and law, then the claim must fail, however compelling it may be in the absence of that affirmative defence. That is ele-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 196
mentary. If a claim by A is that B assaulted him, but B pleads by way of affirmative defence that he caught A in the act
of assaulting their neighbour, C, and came to C's defence in the course of which he struck A no harder than necessary to
stop A from assaulting C, it cannot be held that A's claim is well founded in fact and law unless B's affirmative defence
is shown not to be well founded. That, in my view, is an ineluctable interpretation of Article 53. It is one which is critical
for the disposition of the current case.
119. The fact that the United States has chosen (to my particular regret) not to take part in the proceedings on the merits
does not alter the foregoing conclusions. However regrettable its absence may be, a party does not transgress the Statute
by absenting itself from the Court's proceedings (see H. W. A. Thirlway, Non-appearance before the International Court
of Justice, 1985, pp. 64-82). In abstaining from taking part in these proceedings on the merits, the United States is doing
what Article 53 contemplates that a party might: it has not appeared before the Court, and has failed to defend its case –
not the whole of its case, but part of its case, in that, while in previous phases of the case it has advanced an affirmative
defence on the merits, it has not submitted written or oral pleadings to the *317 Court in this phase which fully support
that defence. These are the very circumstances in which the Court must discharge its burden of satisfying itself that the
claim is well founded in fact and law.
120. In order to satisfy itself both as to the validity of the claim and the defence to the claim, the Court need not content
itself with the pleadings of the appearing party. Indeed, if it is not satisfied by those pleadings, it is not entitled to content
itself with those pleadings. In the current case, there is a good deal in the pleadings of both Parties that bears on con-
tested issues of the merits, for the reason that the United States did participate in previous phases of the case and submit-
ted extensive pleadings and annexes, among which is much factual and legal material supporting its charges of aggress-
ive intervention by Nicaragua against its neighbours (in particular Annexes to the Counter-Memorial [on jurisdiction and
admissibility] submitted by the United States of America, Nos. 42-105, 110, especially Ann. 50. See also two important
documents submitted in 1984 by the United States pursuant to Art. 50 of the Rules of Court: Department of State, Com-
munist Interference in El Salvador, Documents Demonstrating Communist Support of the Salvadoran Insurgency, 1981;
and Department of State and Department of Defense, Background Paper: Nicaragua's Military Build-Up and Support for
Central American Subversion, 1984. The annexes and documents just referred to contain much of the data later restated
in the State Department's September 1985 publication entitled ‘Revolution Beyond Our Borders‘ – Sandinista Interven-
tion in Central America). Furthermore, in the pleadings of Nicaragua there is much that runs counter to its claims. That is
to say, Nicaragua has submitted hundreds of articles from the press and extensive excerpts from the laws and Congres-
sional debates and executive statements of the United States, elements of which contradict the contentions of Nicaragua.
It is not apparent why this material should not have been given appropriate weight by the Court together with passages in
the very same material which are supportive of Nicaragua's contentions. But, quite apart from what the United States and
Nicaragua have pleaded, there is material which Nicaragua has not pleaded but which is of the same character as that
which it has, that is to say, still other articles from the press and still other passages from Congressional debates, etc. It
would have been implausible for the Court to be prepared to consider the evidentiary weight, such as it is, of Article A
from the New York Times, because it is one of hundreds of clippings submitted by Nicaragua, but exclude the eviden-
tiary weight of article B, such as it is, from the New York Times, because it was not submitted by Nicaragua, or, for that
matter, by the United States.
121. Rather, if the Court, in order to ‘satisfy itself‘, finds it necessary to have recourse to United Nations documents,
newspaper articles, Congressional debates, books and articles of scholars, and other material in the public domain – in-
cluding publications of and documents released by the United States Government – that bear on the facts and law of the
case, it is not only entitled but required to do so, whether or not they are found in the *318 pleadings of the Parties.
Equally, if the Court or judges of the Court are not satisfied with the pleadings of the appearing Party on questions of fact
and law, they are entitled – if not obliged – to put questions to the Agent, counsel or witnesses as may be appropriate.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 197
122. What about the status of ‘Revolution Beyond Our Borders‘? The foregoing analysis suggests and the practice of the
Court indicates that the Court is entitled to take account of such a publication even though it is not an official pleading of
the Government of the United States duly submitted to the Court. It would, again, have been implausible for the Court to
weigh the quantities of the evidence submitted by Nicaragua, embracing as it does, among other items, newspaper art-
icles which recount activities of governments and policies of governments, but exclude an official and highly pertinent
statement of a government Party to the case. The implausibility of such a course would have been heightened by the fact
that that publication has appeared in the form of a United Nations document, to which Nicaragua has issued an official
rebuttal.
123. Moreover, the practice of the Court demonstrates repeated reliance on irregular communications from States parties
to a case and reliance even on documents and statements of a non-appearing State which are not addressed to the Court
and which are published after the closure of oral hearings. No less than 15 judgments and orders of the Court have re-
ferred to communications and material emanating from a nonappearing State. In addition, many separate and dissenting
opinions refer to communications and material of non-appearing States.
124. In the Nuclear Tests cases, the Court not only took account in its Judgment of statements emanating from a non-
appearing State; those statements were not addressed to the Court, and some of them – those that were crucial –were is-
sued after the closure of oral argument. The Court there held that it
‘is bound to take note of further developments, both prior to and subsequent to the close of oral proceedings. In
view of the nonappearance of the Respondent, it is especially incumbent upon the Court to satisfy itself that it is
in possession of all of the available facts.‘
And the Court referred to and critically relied upon public statements of French authorities concerning future nuclear
tests, even though ‘It is true that these statements have not been made before the Court, but they are in the public domain
... It will clearly be necessary to consider all these statements ...‘ The Court continued that, while conscious of the im-
portance of the principle expressed in the maxim audi alteram partem, ‘it does not consider that this principle precludes
the Court from taking account of statements made subsequently to the oral proceedings ...‘ (I.C.J. Reports 1974, pp.
263-265).
125. Thirlway's study, Non-appearance before the International Court of *319 Justice, sets out the travaux preparatoires
of Article 53 in extenso. They in fact are not extensive (loc. cit., pp. 22-26). They emphasize the purport of Article 53,
namely that judgment can be given for the claimant in the absence of the defendant only when the plaintiff produces ‘the
most proofs‘ and establishes his case ‘most completely‘ (p. 24). Thirlway records that the United States member of the
Advisory Committee of Jurists which drafted the Statute of the Permanent Court, the eminent statesman, Elihu Root, was
accompanied by James Brown Scott, the distinguished international lawyer who was the Secretary of the Carnegie En-
dowment for International Peace. Scott apparently sat at the table of the Committee as if he were a member and assisted
Root throughout the sessions (see Philip C. Jessup, Elihu Root, 1939, Vol. II, pp. 419, 426). Scott wrote a report for the
Board of Trustees of the Endowment published in 1920, which contains the following passage about the exercise of juris-
diction by the Court under Article 53 of the Statute, which Thirlway's book quotes:
‘The essential condition for the exercise of jurisdiction in such a case is and must be, that the plaintiff, although pro-
ceeding ex parte, should present its case as fully as if the defendant were present, and that the court be especially
mindful of the interests of the absent defendant. This does not mean that the court shall take sides. It does mean,
however, that the court, without espousing the cause of the defendant, shall, nevertheless, act as its counsel. There is
an apt French phrase to the effect that 'the absent are always wrong’. The Court must go on the assumption that the
absent party is right, not wrong until the plaintiff has proven him to be wrong.‘ (At p. 25.)
Now, if the Court is to be ‘fully mindful of the interests of the absent defendant‘ and indeed to ‘go on the assumption that
the absent party is right, not wrong until the plaintiff has proven him to be wrong‘, it follows that, in the instant case, the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 198
Court cannot hold for Nicaragua unless it proves that the affirmative defence advanced by the United States is unfoun-
ded. For the reasons submitted above, that follows even if one does not accept Scott's interpretation of Article 53;
however, Scott's interpretation reinforces that conclusion. But Scott's interpretation goes further, because it places on the
appearing State the burden of proof – it is the appearing State which must prove the absent party wrong and the Court is
to assume ‘that the absent party is right, not wrong until the plaintiff has proved him to be wrong‘.
126. However accurately Scott may be presumed to have expressed the intent of the drafters of Article 53 of the Statute,
there is room for hesitation in accepting his apparent conclusion that Article 53 shifts the burden of proof. Such a conclu-
sion might operate as an inducement to States to absent themselves from Court, in the belief that they would find them-
selves in a more advantageous position if absent than present. The practice of defendants absenting themselves from the
Court which has *320 particularly and repeatedly obtained since Iceland did not appear in the Fisheries Jurisdiction case
in 1972 cannot conduce to the Court's standing and effectiveness, and indeed represents one of the most disturbing devel-
opments in the history of the Court. Moreover, as suggested at the outset of this section, considerations of burden of
proof are beside the point, because the real point is that, where objections are raised to the appearing party's contentions,
that party must convince the Court that those objections are unfounded if the Court is to meet the standard which Article
53 imposes.
127. In my view, the correct interpretation of Article 53 is that it affords the appearing State no advantage beyond that
which it enjoys by reason of the non-appearing State's absence. If, in a given case, such as the one before the Court, the
non-appearing party (or the Court or a judge) raise an affirmative defence to the claim, the appearing party must demon-
strate that the defence is not good in order to prevail. The absence of the non-appearing party sometimes will, and some-
times will not, tend to make such a showing easier rather than more difficult. It is significant that Nicaragua has made
just such an effort to show that the affirmative defence of the United States is not well founded on the facts and in law;
the issue has been engaged, and rightly engaged. Quite another question is whether Nicaragua's effort has succeeded.
G. The Court's Treatment of the Evidence
1. The title of the case
128. The very title of the case suggests that, from the outset, the case has been misperceived by the Court. That misper-
ception, in my view, has impregnated its evaluation of the evidence; it sheds light on the approach of the Court to the
case, which has been one which, in my perception, has concentrated on the apparent delicts of the United States while de-
preciating the alleged delicts of Nicaragua. The title of the case embraces the essential thesis of Nicaragua (and the es-
sential words of its Application: cf. paras. 26 (a) and 26 (g)): that it concerns, and exclusively concerns: Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). However, equally at the outset,
the United States informed the Court of its contrary thesis, namely, that the substantive focus of the Court's concern – if
it were to engage the substance of the case, which the United States contested – should be the activities by Nicaragua in
supporting Salvadoran and other rebels in and against El Salvador and other neighbouring States. While concentrating on
challenging the Court's jurisdiction and the admissibility of the claims, the United States consistently pleaded, by way of
an affirmative defence, that its activities in and against Nicaragua were and are justified as acts of collective self-defence
undertaken in support of El Salvador. It is accordingly remarkable that the Court should have adopted, and persisted in
maintaining,*321 a title of the case which so obviously and exclusively reflects the focus of Nicaragua. Such a stance by
the Court is unprecedented.
129. Thus if one looks at the list of titles of all the cases which have previously been dealt with by this Court, conveni-
ently found in the Court's Yearbooks, one cannot find a listing which is comparable. Take, for example, the first case, en-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 199
titled: Corfu Channel (United Kingdom v. Albania). If that case had been entitled as the current case is, it would have
read something like: Mining activities in the Corfu Channel against the United Kingdom. But the Court chose a neutral
formula, which recognized implicitly that Albania might have had a defence to the claim of the United Kingdom. It did
so in the case which, perhaps more than any other of this Court, has elements in common with the substance of the cur-
rent case, concerning as it did uses of force and questions of intervention. In the list of the 70-odd cases of this Court,
none is entitled so as to embrace only the contentions of the claimant and inferentially exclude those of the defendant –
apart from the instant case.
130. In its traditional approach, this Court has acted as courts customarily do. Cases are normally entitled, ‘Jones v.
Smith‘, not ‘Smith's Trespass on Jones's Property‘. Indeed, the objectivity and restraint of some legal systems are so
marked that the names of the parties to a case are not revealed in the report, the case being known by its number or pa-
gination in the particular volume of the reports.
131. In a letter to the Registrar of 27 April 1984, the Agent of the United States referred to the title of the case and stated
‘that the United States regards the title given to the case as prejudicial‘. He requested that ‘the title be replaced by one
that is neutral‘. He elaborated these contentions in a letter of 2 May 1984. The Court took no positive action in response
to his request, despite the obvious infirmities of the title.
2. The failure to use the Court's authority to find the facts
132. In the Nuclear Tests cases, the Court rightly held that: ‘In view of the non-appearance of the Respondent, it is espe-
cially incumbent upon the Court to satisfy itself that it is in possession of all the available facts.‘ (I.C.J. Reports 1974, p.
263.) In the instant case, the Court, in its Judgment on jurisdiction and admissibility of 26 November 1984, observed in
response to contentions of the United States about the difficulties of finding the facts in a situation of the ongoing use of
force in which security considerations are constraining, that the Court ‘enjoys considerable powers in the obtaining of
evidence‘ (I.C.J. Reports 1984, p. 437). Under its Statute, the Court does enjoy such powers, as is illustrated by the terms
of *322 Article 49 and Article 50. Given the controversy that surrounded charges by the United States of Nicaragua's
support of foreign insurrection and Nicaragua's adamant denial of those charges – despite the evidence in support of
those charges that came to light in the oral hearings – it might have been thought that the Court would have chosen to
make use of those considerable powers in the obtaining of evidence to which it drew attention at the jurisdictional stage.
It could, for example, under Article 50 of the Statute, have entrusted an appropriate commission of judges or another or-
ganization with the task of carrying out a fact-finding enquiry in the territories of Nicaragua, the United States, El Sal-
vador, Honduras, Costa Rica, Guatemala and Cuba, an enquiry which could have sought access to probative data which
certain governments claimed to possess, and which could have examined knowledgeable persons who were unable or un-
willing otherwise to appear before the Court.
133. It may particularly be recalled in this regard that the Government of the Republic of El Salvador, in its 1984 Declar-
ation of Intervention, affirmed that it had ‘positive proof‘ of the passage by Nicaragua of arms to Salvadoran subversives
which earlier had been delivered to the Sandinistas (Declaration of Intervention, para. VIII (D)). In a press conference,
President Duarte also spoke of evidence which he was prepared to submit to the International Court of Justice. Referring
to ‘tangible evidence ... that Nicaragua is sending weapons to El Salvador ...‘, President Duarte maintained that ‘the evid-
ence does exist ... We are going to submit all this evidence to the court at The Hague when the time comes‘ (Press con-
ference of 30 July 1984, Foreign Broadcast Information Service (FBIS), Daily Report, Latin America, reproduced in An-
nexes to the Counter-Memorial submitted by the United States of America [on jurisdiction and admissibility], Ann. 54,
pp. 1, 5). El Salvador's Declaration of Intervention also maintains that, ‘The general headquarters‘ of the Salvadoran
rebels ‘near Managua is the command centre which directs guerrilla operations and co-ordinates the logistical support,
including the provision of munitions, clothes and money ...‘ (at para. V), that Nicaragua ‘provides houses and hideouts to

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 200
the subversives of the FMLN, and communications facilities of the same group are located in northwest Nicaragua.
These facilities are used to pass instructions and messages to subversive units in El Salvador.‘ (At para. VI.) Moreover:
‘since mid-1980 the Sandinista National Liberation Front has made available to the Salvadorian guerrillas train-
ing sites in Nicaraguan territory ... managed by Cuban and Nicaraguan military personnel ... located in El
Paraiso, Jocote Dulce, Bosques de Jilao, and at Kilometre 14 on the South Highway. The first two locations are
situated in the southern suburbs of Managua; the second two are outside the city.‘ (Ibid.)
*323 El Salvador's Declaration makes a number of specific allegations of this kind (at paras. III-VII, IX, X). Further-
more, the Declaration of Intervention maintains that El Salvador not only repeated in 1984 its requests to the United
States to assist it in collective acts of self-defence, but that such requests were earlier made by El Salvador's Revolution-
ary Junta of Government and the Government of President Magana, that is to say, perhaps as early as October 1979 (at
para. XII).
134. Not only did the Court fail to decide to carry out an enquiry pursuant to Article 50, for reasons, particularly related
to the posture of the United States, which may have had some justification. Quite without justification, it even failed to
request El Salvador to transmit the ‘positive proof‘ of Nicaraguan subversion which El Salvador claimed to possess. The
Court goes so far as to hold that there is no evidence that El Salvador ever requested, before Nicaragua brought these
proceedings, that the United States give it assistance in collective self-defence. But it failed to invite El Salvador to trans-
mit evidence in support of its official claim to the Court that it had made such requests years earlier. Just as, in its adop-
tion of a title of the case, the Court seemed essentially to concern itself with Nicaragua's allegations rather than with the
defence of the United States to those allegations, so the Court displayed little interest in taking the steps it might have
taken to establish or disestablish the facts bearing upon the allegations of the United States and El Salvador – and this
despite its obligation under Article 53 of the Statute to ‘satisfy itself‘ that the claim is well founded in fact.
3. The Court's articulation and application of evidential standards
135. As the Court rightly observes in today's Judgment, one of its chief difficulties has been the determination of the
facts relevant to the dispute. Those difficulties have been compounded by the absence of the United States from the pro-
ceedings on the merits. In so far as evidential problems have prejudiced the establishment of the factual contentions of
the United States, it has been the United States which has exacerbated its – and the Court's –difficulties by absenting it-
self. At the same time, there is ground for concluding that the United States withdrew from the proceedings not only be-
cause of its unwillingness to accept the Court's holdings on jurisdiction and admissibility but because of its reaction to
certain procedural actions of the Court (see its statement of 18 January 1985, loc. cit., and paragraph 114 of this opinion).
For its part, the Court in today's Judgment affirms that, when equality between the parties to a case ‘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‘.
136. That affirmation must be measured against the performance of the *324 Court. The Court in today's Judgment has
set out rules of evidence which, while appearing reasonable, on reflection are, in my view, open to question. More than
this, I find that the Court's treatment in practice of evidential problems has not been such as to produce ‘as perfect equal-
ity as possible between the parties‘.
137. The Court refers to the fact that it has before it documentary information of various kinds from various sources. It
states that it will treat press articles and extracts from books ‘with great caution‘, that, ‘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 addi-
tional to other sources of evidence‘. Nevertheless, ‘public knowledge of a fact may ... be established by means of these
sources of information, and the Court can attach a certain amount of weight to such public knowledge‘.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 201
138. As to statements emanating from high-ranking official political figures, they ‘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.‘ The Judgment maintains that ‘neither Article 53 of the Statute, nor any other
ground, could justify a selective approach‘, in view of the elementary duty to ensure equality between the Parties.
However, the Court cannot treat such sources as having the same value irrespective of whether the text is found in an of-
ficial or unofficial publication and irrespective of whether it has been translated. The Court also holds that it is the facts
occurring up to the close of the oral proceedings on the merits of the case on which its Judgment shall be based.
139. But while these criteria appear to be reasonable enough, and indeed calculated to produce perfect equality between
the Parties, are they what they appear to be? It is the fact that these rules of evidence when applied will cut in favour of a
government of the nature of that of the Government of Nicaragua and against a government of the nature of that of the
Government of the United States. Given the relatively open, democratic character of administrative, Congressional and
public processes in the United States, it is not difficult to find official acts and admissions of that Government, signed,
sealed and delivered. Correspondingly, given the relatively closed and authoritarian character of the Government of
Nicaragua, such certified governmental acts are not to be found and any such admissions are not reported in the pages of
Nicaragua's controlled and censored press. To be sure, the Court is not well positioned to take account of such considera-
tions. But that does not detract from the fact that they exist.
140. As for the Court's choice of the date of the oral hearings as the date for excluding further facts on which its Judg-
ment shall be based, it may be noted that what appears to be the most pertinent Court precedent is precisely to the con-
trary (Nuclear Tests cases, I.C.J. Reports 1974, pp. 263-265; see para. 124 of this opinion).
*325 141. In view of the inherent constraints to which this Court is subject, however, one might view its evidential ap-
proach as appropriate or at any rate inescapable, if in practice it were applied in ways which produced, in so far as pos-
sible, that perfect equality between the parties at which the Court aims. In fact, the concrete application of the rules of
evidence which the Court has enunciated for this case has been prejudicial to the confirmation of the contentions of the
United States. I have regretted to arrive at this unhappy conclusion, for the reasons set out in the following paragraphs.
142. There is a large quantity of probative documentary material which the United States duly filed with the Court in
1984 in support of its claims of Nicaraguan material support of the armed insurgency in El Salvador. Some of that mater-
ial is contained in Communist Interference in El Salvador, Documents Demonstrating Communist Support of the Sal-
vadoran Insurgency, a selection of documents claimed to have been captured from Salvadoran insurgents summarized in
paragraphs 16-20 of the appendix to this opinion. While there is room for challenge of some details of a White Paper of
the United States analysing these documents (Annex 50 to the United States Counter-Memorial), the documents them-
selves have been recognized as genuine by informed critics of United States policy in Central America (appendix to this
opinion, paras. 19, 151). No question about their authenticity has been raised in Court or by the Court. In its pleadings
and oral argument, Nicaragua apparently made no specific reference to these documents. The Court in today's Judgment
makes no more than passing reference to them, principally observing that, since these documents almost invariably use
code-names (such as ‘Lagos‘ – lakes – for Nicaragua), the Court cannot draw judgments from these documents without
further assistance from United States experts who might have been called as witnesses had the United States appeared in
the proceedings. The Court fails to note that the collection of documents is prefaced by chronological and organizational
keys, and that each document is prefaced by a glossary of explanation of its coded words. Glossary A which introduces
document A, for example, as its first item, reveals that ‘Fidel‘ is ‘Fidel Castro‘. Moreover, an appendix to Nicaragua's
pleadings – i.e., Nicaragua's evidence – contains an explanation of the codewords as well as a revealing commentary on
the documents themselves by Congressman C. W. Bill Young; see the Nicaraguan Memorial, Annex E, Attachment 1,
pages 37 ff. In my view, with exertion of modest effort, the meaning of these documents is readily apparent. They pro-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 202
foundly inculpate Nicaragua. The United States also filed with the Court in 1984 a Background Paper: Nicaragua's Milit-
ary Build-Up and Support for Central American Subversion, loc. cit., a compilation of factual data and analysis referred
to in paragraphs 77, 168 of the appendix. The Court fails to deal seriously with this data and its analysis as well. The sole
fact that the Court finds it appropriate to establish in drawing upon this latter publication is that the United States con-
ducted overflights of Nicaraguan territory, a fact shown by the aerial photographs of Nicaraguan installations which the
*326 Background Paper contains. The Court does not find it suggestive, still less probative, to observe that one of those
photographs of the Rio Blanco Military Camp in Nicaragua shows the Salvadoran ‘FMLN‘ logo emblazoned on the
grounds. The Court also omits to refer to photographs in that publication of weapons and documents said to have been
captured in March 1983 from a group of Salvadoran guerrillas intercepted in Honduras, including a photograph of a doc-
ument on which ‘FSLN‘ and ‘FMLN‘ are clearly inscribed (loc. cit.).
143. These documents are important for what they reveal. They are also important in the framework of the Court's evid-
ential approach. The Court excludes large quantities of data which confirm United States charges of Nicaraguan material
support of the insurgency in El Salvador, apparently on the ground that such press reports, books, etc., can be introduced
only in so far as they corroborate other evidence. These press articles, books, Congressional reports – and published ad-
missions of the President and other officials of Nicaragua – do corroborate the contents of these documents, which are
such other evidence. But since the Court discounts those documents, it apparently feels justified in excluding data which
otherwise, under its rules of evidence, could be admitted in corroboration of facts established by those documents.
144. The Court's Judgment, in so professing ‘great caution‘ in treating press reports and extracts from books, maintains
that they can do no more than contribute, ‘in some circumstances‘, to corroborating the existence of a fact. Which cir-
cumstances? In practice, it turns out, very largely the circumstances of corroboration of contentions of Nicaragua. The
Judgment more than once finds it appropriate to cite press sources to this end. How is it that so little of the very large
body of newspaper, Congressional and other reports which sustain contentions of the United States – many of which re-
ports were introduced into evidence by Nicaragua – are used by the Court to corroborate contentions of the United
States? Presumably, by the criteria which the Court advances, because they do not corroborate facts independently estab-
lished. But such a presumption is just that – a presumption, and one quite unfounded in this case.
145. Consider not only the documentary data referred to above which is corroborated by these press and Congressional
and other reports. Consider the dossier of data assembled and attached in the appendix to this opinion which shows, in so
many ways, with such richness of detail, from so many sources –some adverse to the interests of the United States Gov-
ernment in this case –that the Nicaraguan Government has been engaged since 1979 in a sustained effort to overthrow the
Government of El Salvador through material assistance to armed insurgency in that *327 country. That data corroborates
facts independently established; it demonstrates the reality, actuality and extent of that Nicaraguan effort. That cornu-
copia of corroboration can best be appreciated by a reading of the appendix. But what salient facts independently estab-
lished – in addition to facts found in the two United States documents referred to above – does that data corroborate?
146. Nicaragua's premier witness – who counsel for Nicaragua treated more as an expert than a witness – on the issue of
whether Nicaragua had been engaged in sending arms to the Salvadoran insurgents, Mr. David MacMichael, admitted in
Court in response to my questions 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 Salvadoran insurgency‘ (appendix, para. 76). He acknowledged
that, when the former Democratic Secretary of State, Edmund Muskie, declared in January 1981 that the arms and sup-
plies being flown into El Salvador for the use of the Salvadoran insurgents were sent with the knowledge and help of the
Nicaraguan authorities, Mr. Muskie spoke the truth (ibid.). He acknowledged that military leaders of the Salvadoran in-
surgency are based in Nicaragua (ibid., para. 73). He testified to all this and more, and did so on the basis of his own ex-
amination of the evidence. He did not offer hearsay evidence. Mr. MacMichael claimed to have examined all the data,

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 203
raw and finished, that the intelligence resources of the United States had collected on the question of Nicaraguan support
for the Salvadoran insurgency for the 1979-1983 period (until he left the CIA's employ early in 1983). It is true that he
could do no more than offer his own opinion of that material, and the Court is correct in its apparent allusion to that ef-
fect. But his opinion for the period from the accession of the Sandinistas to power in July 1979 to the Spring of 1981 is
corroborated by a variety of probative sources, as the appendix to this opinion establishes. Moreover, the conclusions of
Mr. MacMichael to which reference has just been made were shaken neither by Nicaragua nor by any Member of the
Court. Indeed, after these admissions were elicited, Nicaraguan counsel, who had earlier directly examined Mr. MacMi-
chael at length, were conspicuous in their failure to recall him for further questioning in an effort to regain the ground
which he had so dramatically cut out from under Nicaragua's case.
147. Mr. MacMichael also testified that, after early 1981, it could not be shown that Nicaragua had shipped arms to the
Salvadoran insurgency (a conclusion arguably qualified by his affirmation that a shipment of arms destined to transit
Nicaragua had been seized in Costa Rica in 1982). While the masses of material collected in the appendix to this opinion
do show that the flow of arms was suspended in the Spring of 1981, they also show that it revived, most sharply in 1982,
and was sustained, apparently in irregular and lesser measure, thereafter. That is to say, that material does not corrobor-
ate Mr. MacMichael's opinion for the post-Spring 1981 *328 period. That is hardly reason to exclude material which
does corroborate his testimony for the pre-Spring 1981 period. Nor is it reason to exclude material for the post-1981 peri-
od, which is significant in so strongly indicating that Nicaragua's contentions for the post-1981 period also are false, not
least because that material, while it does not corroborate Mr. MacMichael's opinion for the post-1981 period, otherwise
has substantial corroboration – including corroboration by the admissions of the President of Nicaragua. It will be re-
called that the Court holds that admissions by high-ranking political figures are of ‘particular probative value‘.
148. It is important to recall what the Court's Judgment omits to observe, namely, that these ‘solemn declarations‘ of
Nicaragua's witness, Mr. MacMichael, for the pre-1981 period, squarely contradict those of the Foreign Minister of
Nicaragua, and of another star witness, Commander Carrion, who is one of the nine governing comandantes of
Nicaragua. Indeed, Commander Carrion contradicted himself, testifying before the Court that Nicaragua ‘never‘ had a
policy of sending arms to foreign insurgents while at the same time Nicaragua submitted his affidavit to the Court which
maintained that Nicaragua had not sent such arms to the insurgents in El Salvador ‘in a good long time‘ (appendix, para.
55). It should also be observed that, while Nicaragua heavily relied, and the Court relies, on an affidavit of Mr. Edgar
Chamorro, a defector from the contras, the Court fails to point out that, not only does other evidence (press reports) sub-
mitted by Nicaragua fail to corroborate elements of Mr. Chamorro's testimony, but such evidence contains statements of
Mr. Chamorro which contradict elements of his testimony.
149. While I have no doubt that the Court has endeavored to achieve a perfect equality between the Parties in its treat-
ment of the evidence, I regret that I am forced to conclude that its reach has exceeded its grasp. To take another striking
example, the Court, as noted, maintains that it has avoided ‘a selective approach‘ in treating press statements, including
those of figures of the highest political rank. Yet the Court relies upon press statements of President Reagan, while it
fails to give weight to President Ortega's admissions in press interviews in January 1985 and April 1986 that Nicaragua is
willing to suspend its material aid to the insurgents in El Salvador on the condition that the United States ceases its ma-
terial aid to the contras (supra, para. 29, and appendix, paras. 30-33). These reiterated statements of President Ortega
have been published in 1985 in the New York Times and in Madrid's ABC (in their original Spanish), and, in other terms
but to like effect, in 1986 in the Wall Street Journal. Not only is *329 Nicaragua not known to have requested correction
of these reports; not only have these newspapers not run such corrections; in the case of the New York Times, it has been
confirmed that President Ortega's admission – run off in more than a million copies – has not been the subject of commu-
nication by the Nicaraguan Government. This statement of President Ortega published in the New York Times was
quoted in the United Nations General Assembly by the representative of El Salvador; its authenticity, and its import,

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 204
were not denied by the representative of Nicaragua, who otherwise took part in the debate. Nevertheless, the Court finds
the 1985 statement of President Ortega insignificant because, it speculates, it may mean no more than that Nicaragua is
willing to suspend movement of arms through Nicaragua to the Salvadorans provided that the United States shows
Nicaragua the routes of that movement. What is the basis for this speculation? That a request to this effect was made by
President Ortega to Mr. Enders in 1981, more than three years earlier, a request which Mr. Enders declined on the ground
that the United States could not share its intelligence information with Nicaragua. The Court also concludes that Presid-
ent Ortega's statement cannot mean what it says, since it is inconsistent with the reiterated official policy of Nicaragua,
inconsistent with its firm denials that it has provided arms to the Salvadoran insurgents. But the significance of any ad-
mission is its inconsistency with the professed position of the party. Moreover, President Ortega made a like admission a
year later in an interview with the Wall Street Journal. It is obvious that President Ortega's unambiguous affirmation that
Nicaragua is willing to suspend transit through its territory of military aid to the Salvadorans in return for cessation of at-
tacks upon Nicaragua is, as the representative of El Salvador pointed out to the General Assembly of the United Nations,
‘an eloquent confession‘ (A/40/PV.90, p. 83). Has the Court's treatment of this confession been such as to guarantee per-
fect equality between the Parties?
150. It must be recognized that any endeavour to rescue the credibility of Nicaragua's case cannot have been easy. On the
one hand, the Court pronounces itself 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 Nicaragua. On the other hand, the Court
concludes:
‘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 *330 scale, or that the
Government of Nicaragua was responsible for any flow of arms at either period‘.
151. That remarkable conclusion calls for observations with which this opinion is replete; two will suffice at this junc-
ture. The first is that the evidence which the Court is prepared to consider which has led it to this conclusion is subject to
the infirmities which have just been described. In view of all the evidence which the Court has chosen to exclude or dis-
count, its inability to find Nicaragua responsible for the flow of arms is somewhat more comprehensible. Second,
however, that is far from saying that this critical conclusion of the Court is credible. I find it incredible – an exigent eval-
uation which is justified even by the evidence which the Court recounts and accepts.
152. Thus the Court acknowledges that, in the meeting between Commander Ortega and Assistant Secretary of State En-
ders on 12 August 1981, it emerges that the Nicaraguan authorities had 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.
‘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.‘
This reasonable conclusion of the Court is supported by an amplitude of evidence, in addition to that provided in the
transcript of the Ortega/Enders exchange. It is supported by detailed data about the use of the airport at Papalonal
provided by the United States in a Background Paper duly filed with the Court in 1984 (loc. cit., pp. 20-21) and sub-
sequently amplified in ‘Revolution Beyond Our Borders‘ (loc. cit., pp. 18-19). The United States there shows how an un-
developed agricultural dirt airstrip of 800 metres on a former sugar plantation not far from Managua was speedily turned
into a lengthened, hardened, graded military facility fully suitable for the handling of aircraft capable of carrying military
cargo (appendix to this opinion, para. 58). The United States produced aerial photographs of the Papalonal installations
and their usage (‘Revolution Beyond Our Borders‘, loc. cit., pp. 28-29) – whose procurement, while so obviously defens-
ive, the Court finds nevertheless to be a violation of Nicaraguan sovereignty. I read out in Court details of this evidence

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 205
in putting questions to Nicaragua's Agent and counsel (Hearing of 19 September 1985, morning); they made no attempt
to refute that evidence. Apparently they found that evidence to be irrefutable. Nicaragua's witness, Mr. MacMichael,
earlier had agreed that Papalonal airport had been used for the dispatch of aircraft carrying weapons to the insurgents in
El *331 Salvador; perhaps that is why the Nicaraguan Agent and counsel found it prudent not to pursue the question. As
noted, Mr. MacMichael stated that when former Secretary of State Muskie made charges to this effect, declaring that
arms were being flown to Salvadoran insurgents from Nicaragua ‘certainly with the knowledge and to some extent the
help of Nicaraguan authorities‘, he spoke the truth (Hearing of 19 September 1985, afternoon; see this opinion's ap-
pendix, para. 76). Mr. MacMichael confirmed that defectors from Nicaragua and a crashed and captured aircraft in El
Salvador from Papalonal contributed to establishing as a fact the use of the facilities at Papalonal to fly arms to the Sal-
vadoran insurgency (ibid.). Not only the Ortega/Enders transcript but an admission by President Ortega in an interview
with a correspondent of the New York Times confirms the employment of Papalonal for the shipment of arms to the in-
surgents in El Salvador (appendix, paras. 57-58).
153. Despite all this, the Court finds itself able to conclude that it still remains to be proved that any aid to the insurgents
in El Salvador is imputable to the authorities of Nicaragua. It repeats that the Government of Nicaragua cannot be held
‘responsible for any flow of arms‘ at any time to the insurgency in El Salvador. It thus infers, for example, that the Gov-
ernment of Nicaragua, before the representations of the United States Ambassador, did not know of the existence of the
airport at Papalonal, and was not party to its employment. The Court would have the world believe that a substantial mil-
itary airport not far from Managua could be designed, built, brought into operation and used for months for many flights
carrying arms to Salvadoran insurgents, all without the knowledge and support of the Nicaraguan Government. These are
its conclusions. Mine are that the Court, in so sustaining the credibility of Nicaragua's case, has strained the credibility of
the Court.
H. The Nicaraguan Government's Material Support of Insurgency in El Salvador Is Legally Tantamount to an Armed At-
tack by Nicaragua upon El Salvador
154. The facts demonstrating the reality, actuality and extent of actions of the Nicaraguan Government in materially sup-
porting insu gency in El Salvador have been sketched above and are presented in detail in the appendix to this opinion
(paras. 28-188). Are those actions legally tantamount to an armed attack by Nicaragua upon El Salvador? The Court – in
a decision fundamental to its Judgment – has concluded that they are not.
*332 155. As to the Court's conclusions of law to this effect, it may be observed that the Court has taken one position,
while I have taken another, which latter position, however, is essentially shared by (a) Nicaragua, (b) the United States,
(c) El Salvador, and (d) 40 years of progressive development of the law and of authoritative interpretation of the govern-
ing principles of the United Nations Charter. In my view, the Judgment of the Court on the critical question of whether
aid to irregulars may be tantamount to an armed attack departs from accepted – and desirable – law. Far from contribut-
ing, as so many of the Court's judgments have, to the progressive development of the law, on this question the Court's
Judgment implies a regressive development of the law which fails to take account of the realities of the use of force in in-
ternational relations: realities which have unfortunately plagued the world for years and give every sign of continuing to
do so – whether they are recognized by the Court or not. I regret to say that I believe that the Court's Judgment on this
profoundly important question may detract as much from the security of States as it does from the state of the law.
156. In its Memorial on the merits of the case, Nicaragua set out the accepted law on the question. It applied that law to
what it sees as the facts of United States support of the contras. But, since Nicaragua, together with Cuba, has particip-
ated so pervasively in the organization, training, arming, supplying and command and control of the insurgent forces in
El Salvador, its analysis is no less pertinent to the question of whether its actions are tantamount to armed attack upon El

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 206
Salvador.
157. Nicaragua concluded that the ‘use by a State of armed groups of ... irregulars to carry out acts of armed violence
against another state violates the prohibition on the use of force contained in Article 2 (4) ...‘. It maintains that, ‘The
writings of jurists, the actions of the United Nations and the positions taken by the United States itself are in agreement‘
on this position, and that that ‘position finds support, as well, in the pronouncements of the Court‘ (Nicaraguan Memori-
al, para. 227). The law which Nicaragua marshals in support of this conclusion is stated in the Nicaraguan Memorial in
the following terms, which merit extensive quotation:
‘228. That the direction and control of armed bands by a State is attached to that State for purposes of determining li-
ability, is an elementary principle of international law. Among the many authorities that could be cited for the pro-
position, only a few of the most prominent are mentioned here. The principle has been codified in draft form by the
International Law Commission. Article 8 of the draft articles on State Responsibility reads:
'The conduct of a person or group of persons shall also be considered as an act of the State under international law if
(a) it is established that such persons or group of persons was in fact acting *333 on behalf of that state; ...'
(Yearbook of the International Law Commission, 1974, Vol. II, Part I, p. 277.)
Commenting on this provision in the Third Report on State Responsibility to the International Law Commission,
former Special Rapporteur, Judge Roberto Ago, writes:
'The attribution to the State, as a subject of international law, of the conduct of persons who are in fact operating on
its behalf or at its instigation is unanimously upheld by the writers on international law who have dealt with this
question.' (Ibid., 1971, Vol. II, Part I, p. 266.)
Judge Ago continues:
'... private persons may be secretly appointed to carry out particular missions or tasks to which the organs of the
State prefer not to assign regular State officials; people may be sent as so-called ‘volunteers‘ to help an insurrec-
tional movement in a neighbouring country – and many more examples could be given’. (Ibid., p. 263.)
229. Brownlie supports this view. In International Law and the Use of Force by States, he notes that although 'the
terms ‘use of force‘ and ‘resort to force‘ are frequently employed by writers these terms have not been the subject of
detailed consideration’. His own analysis, based on a survey of the literature, follows:
'There can be little doubt that ‘use of force‘ is commonly understood to imply a military attack, an ‘armed attack‘, by
the organized military, naval, or air forces of a state; but the concept in practice and principle has a wider signific-
ance. ... governments may act by means of completely ‘unofficial‘ agents, including armed bands, and ‘volunteers‘,
or may give aid to groups of insurgents on the territory of another State.’ (International Law and the Use of Force by
States, 1963, p. 361.)
Brownlie notes that although sporadic operations by armed groups might not amount to armed attack
'it is conceivable that a co-ordinated and general campaign by powerful bands or irregulars, with obvious or eas-
ily proven complicity of a government of a state from which they operate would constitute*334 an ‘armed at-
tack‘’. (International Law and the Use of Force by States, 1963, pp. 278-279.)
.............................
231. Rosalyn Higgins also takes the position that use of irregulars to carry out armed attacks against another state is,
'from a functional point of view,' a use of force. Higgins, 'The Legal Limits to the Use of Force by Sovereign States,
United Nations Practice,' 37 British Year Book of International Law 269 (1961), page 278. She develops the historic-
al background for the growing emphasis on indirect uses of force in U.N. practice. At San Francisco, she points out,
the focus was on conventional methods of armed attack, but 'the unhappy events of the last fifteen years' necessitated
a substantial reevaluation of the concept of the use of force. (Ibid., pp. 288-289.) Thus, the 'law-making activities' of
the General Assembly and the International Law Commission defining and outlawing indirect aggression did not
take place 'in vacuo', but arose from a combination of the continuing efforts to define aggression, the Nuremburg

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 207
principles, and the stream of incidents confronting the Security Council and the General Assembly. (Ibid., p. 290.)
232. Rifaat also describes this evolving recognition of the dangers of indirect uses of force. Since 1945, he writes,
states have with growing frequency used armed bands and other covert uses of force in an attempt to circumvent the
prohibitions of Article 2 (4).
'States, while overtly accepting the obligation not to use force in their mutual relations, began to seek other methods
of cover pressure in order to pursue their national policies without direct armed confrontation.
The incompatibility of the classical external armed aggression with the present rules regulating international rela-
tions, led to the development of other methods of covert or indirect aggression.' (International Aggression, 1979, p.
217.)
These other methods include 'subversion, fomenting of civil strife, aiding armed bands or the sending of irregu-
lars to assist rebel groups in the target state' ...
233. Thus, there is now a substantially unanimous modern view concerning indirect use of force through armed
groups of mercenaries or irregulars. Whatever legal doubts may have existed prior to World War II were dispelled by
the events of the post-war period. If the prohibition on the use of force in Article 2 (4) was to have any meaning, it
*335 would have to cover this new and dangerous mode of military activity by armed mercenaries and irregulars. As
Novogrod writes, 'to argue that direct and indirect aggression could not equally be violations of article 2 (4) of the
Ch rter would be to make a fetish of literalism'. (Indirect Aggression, p. 227.)
2. The Position of the United States
234. The United States has consistently been among the most forceful advocates of this view that the use of armed
groups by a State to carry out military activities against another State amounts to a use of force. Again, it is suffi-
cient to select only a few of the most salient among a multitude of authorities.
235. As early as 1947, U.S. Representative Austin, in a statement to the Security Council, condemned the support
provided to guerrillas in Greece:
'I do not think that we should interpret narrowly the ‘Great Charter‘ of the United Nations. In modern times, there
are many ways in which force can be used by one State against the territorial integrity of another. Invasion by organ-
ized armies is not the only means for delivering an attack against a country's independence. Force is effectively used
today through devious methods of infiltration, intimidation and subterfuge.
But this does not deceive anyone. No intelligent person in possession of the facts can fail to recognize here the use of
force, however devious the subterfuge may be. We must recognize what intelligent and informed citizens already
know. Yugoslavia, Bulgaria and Albania, in supporting guerrillas in northern Greece, have been using force against
the territorial integrity and political independence of Greece. They have in fact been committing acts of the very kind
which the United Nations was designed to prevent, and have violated the most important of the basic principles upon
which our Organization was founded.' (2 U.N. SCOR (147th and 148th mtg.), pp. 1120-1121 (1947).)
236. In a study prepared for the Legal Adviser's Office of the U.S. State Department in 1965, Richard Baxter con-
cluded:
'Although the sending of volunteers might be regarded as a form of ‘indirect aggression,‘ the conduct of the respons-
ible state may be so blatant that ‘indirect aggression‘ would be a misnomer. There is a spectrum of conduct from the
departure of individual volunteers from the territory of a neutral State, which is not a *336 violation of the State's
duty of neutrality, to outright State participation under the fiction of volunteers. A definition of ‘use of force‘ would
have to specify when State responsibility is engaged.’ (Study of the Principles of International Law Concerning
Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, 1965, pp.
1-12.)
237. Again in 1969, the same view was expressed by John Lawrence Hargrove, U.S. Representative to the Special
Committee on the Question of Defining Aggression:
'The Charter speaks in Article 2, paragraph 4, of the ‘use of force‘ in international relations; it does not differentiate

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 208
among the various kinds of illegal force, ascribing degrees of illegality according to the nature of the techniques of
force employed. Articles 1 and 39 of the Charter speak of ‘aggression‘; similarly, they altogether fail to differentiate
among kinds of aggression on the basis of methods of violence which a particular aggressor may favor. There is
simply no provision in the Charter, from start to finish, which suggests that a State can in any way escape or amelior-
ate the Charter's condemnation of illegal acts of force against another State by a judicious selection of means to its
illegal ends.’ (Statement by John Lawrence Hargrove, United States Representative to the Special Committee on the
Question of Defining Aggression, 25 March 1969, Press Release USUN-32 (69), p. 5.)
238. The same view was espoused in 1973 by Judge Schwebel, who was the United States Representative to the Spe-
cial Committee on the Question of Defining Aggression. Writing a year before the Definition was adopted, he argued
'that the Charter of the United Nations makes no distinction between direct and indirect uses of force' and that the
'most pervasive forms of modern aggression tend to be indirect ones'. ('Aggression, Intervention and Self-Defence in
Modern International Law', 136 Collected Courses, Academy of International Law, The Hague (1972-II), p. 458.)
.............................
3. United Nations Practice

239. The consistent practice of the United Nations confirms the proposition that substantial involvement in the activ-
ities of armed insurgent groups is a violation of the prohibition on the use of force in Article 2 (4).
240. The United Nations concerned itself almost from the beginning with the definition and elaboration of the
concept of 'the use of force' contained in the Charter. A series of resolutions and other actions defining or con-
demning the use of force and aggression show a *337 gradual evolution from the general characterization of support
for insurgent groups as unlawful to specific condemnations invoking Article 2 (4). The Draft Declaration on the
Rights and Duties of States, adopted by the International Law Commission in 1949, imposed a duty:
'to refrain from fomenting civil strife in the territory of another state, and to prevent the organization within its
territory of activities calculated to foment such civil strife'. (Article 4, Report of the International Law Commis-
sion, U.N. GAOR Supp. (No. 10), p. 10, U.N. Doc. A/925 (1949).)
Similarly, the Commission's Draft Code of Offences against the Peace and Security of Mankind included among the enu-
merated offenses:
'(4) The incursion into the territory of a State from the territory of another State by armed bands for a political pur-
pose.
(5) The undertaking or encouragement by the authorities of a State of activities calculated to foment civil strife in
another State, or the toleration by the authorities of a State of organised activities calculated to foment civil strife in
another State.' (International Law Commission, Report, 9 U.N. GAOR, Supp. (No. 9), p. 11, U.N. Doc. A/2693
(1954).)
241. The General Assembly, too, has repeatedly condemned the use of force by acting through insurgent groups. In
its 1950 Peace Through Deeds Resolution, the Assembly denounced ‘the intervention of a state in the internal affairs
of another state for the purpose of changing its legally established government by a threat or use of force.’
(Resolution 380 (V).)
'Whatever the weapon used, any aggression, whether committed openly, or by fomenting civil strife in the interest of
a Foreign Power, or otherwise, is the gravest of all crimes against peace and security throughout the world.'
See also Essentials of Peace Resolution, G.A. Resolution 290 (IV); 1965 Declaration on the Inadmissiilty of Intervention
in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, G.A. Resolution 2131 (XX).
242. The Assembly's position on the use of armed insurgent groups is further refined in the 1970 Declaration on
Friendly Relations and Cooperation between States, G.A. Resolution 2625 (XXV), adopted without vote on 24 Octo-
ber 1970. ...
*338 243. The first principle enunciated in the Declaration is the prohibition against the use of force, cast in the lan-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 209
guage of Article 2 (4). Subsumed under this principle are the very forms of involvement with the activities of armed
bands that appear in this case:
'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 ter-
rorist 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.'
244. According to Judge Lachs, 'indirect means of attacking States were barred' by this Declaration. 'The Develop-
ment and General Trends of International Law in Our Time', 169 Collected Courses, The Hague (1980-IV), page
166. Similarly, former President Jimenez de Arechaga asserts that the 1970 Declaration constitutes an 'important in-
terstitial development of some of the implications of Article 2 (4).' He finds the origins of the 1970 Declaration in
the increasing use of methods of indirect aggression since 1945, in the sense of 'the sending of irregular forces or
armed bands or the support or encouragement given by a government to acts of civil strife in another State'. Recog-
nizing that 'these acts may involve the use of force', he argues that the purpose of the Declaration was simply to pre-
vent states from doing 'indirectly what they are precluded by the Charter from doing directly'. (159 Collected
Courses, The Hague (1979-I), p. 93.)
245. The United Nations development culminated with the adoption in 1974 of Resolution 3314 (XXIX), a Defini-
tion of Aggression endorsed by the Sixth (Legal) Committee, and adopted by the General Assembly by consensus on
December 14, 1974.
246. Article 1 of the Definition defines aggression as 'the use of armed force by a State against the sovereignty, ter-
ritorial integrity or political independence of another State'. Thus the Definition of Aggression is again directly and
explicitly related to the use of force prohibited by Article 2 (4) of the Charter. Article 3 specifies certain acts that
shall 'qualify as aggression', i.e., that constitute the use of force in violation of Article 2 (4). Among these, and of
specific application in the present context, Article 3 (g) includes:
'The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of
armed force against *339 another State of such gravity as to amount to the acts listed above, or its substantial in-
volvement therein.'
247. The Soviet Union proposed including subparagraph 3 (g) under the separate label of 'indirect aggression'. Draft
proposal submitted by the U.S.S.R., U.N. General Assembly Special Committee on Question of Defining Aggres-
sion, U.N. Doc. A/AC.134/L.12. In the final Definition, however, subparagraph 3 (g) was included without differen-
tiating it from other, more overt forms of aggression. The Special Committee accepted the proposition that the U.N.
Charter provides no basis for distinguishing between a state using force by acting on its own and a state using force
by acting through armed insurgent groups. See Report of the Sixth Committee, U.N. Doc. A/8929, page 5 (1974); see
also Stone, Conflict through Consensus, 1977, page 89. The Definition condemns the sending of armed bands as a
use of force on the same plane as direct invasion, bombardment, blockade, and other traditional notions of armed ag-
gression. (See ibid., p. 75; see also Ferencz, 'A Proposed Definition of Aggression', 22 International and Comparat-
ive Law Quarterly (1973), at p. 421; 1981 Declaration on the Inadmissibility of Intervention in the Internal Affairs of
States, 36 U.N. GAOR 78, U.N. Doc. A/Res./36/103 (1981)).‘ (Emphasis supplied.)
158. On this, as Nicaragua's Memorial points out, Nicaragua and the United States are in agreement. As the United States
has officially observed in connection with the current dispute:
‘A striking feature of the public debate on the conflict in Central America is the degree to which all parties con-
cerned accept the principle that a nation providing material, logistics support, training and facilities to insurgent
forces fighting against the government of another state is engaged in a use of force legally indistinguishable from
conventional military operations by regular armed forces ... The critical element of the debate, therefore, is not the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 210
identification of the applicable legal standard, but the determination of the facts to be measured against that undis-
puted legal standard.‘ (‘Revolution Beyond Our Borders‘, loc. cit., p. 1.)
159. For its part, El Salvador, in its Declaration of Intervention, maintains that:
‘Nicaragua has been converted into a base from which the terrorists seek the overthrow of the popularly elected Gov-
ernment of our nation. They are directed, armed, supplied, and trained by Nicaragua to destroy the economy, create
social destabilization, and to keep the *340 people terrorized and under armed attack by subversives directed and
headquartered in Nicaragua ... The reality is that we are the victims of aggression and armed attack from Nicaragua
and have been since at least 1980.‘ (At p. 4.)
160. In today's Judgment, the Court acknowledges that the views of the parties to a case as to the law applicable to their
dispute are very material, particularly when their views are concordant. The Court also does not deny that the Parties to
this case agree on the definition of the acts which may constitute an armed attack. Nevertheless, on the critical question
of whether a State's assistance to foreign armed irregulars who seek to overthrow the government of another State may be
tantamount to an armed attack by the former State upon the latter, the Court arrives at a conclusion which is discordant
with the agreed views of both Parties.
161. The Court's conclusion is inconsonant with generally accepted doctrine, law and practice as well. The Court's con-
clusion is inconsistent with the views of Professor Brownlie which Nicaragua's Memorial quotes that a ‘use of force‘
may comprise not merely an organized armed attack by a State's regular forces but the giving of ‘aid to groups of insur-
gents on the territory of another State‘. It is inconsistent with his conclusion that a general campaign by irregulars with
the complicity of the government of the State from which they operate may constitute an ‘armed attack‘. It is inconsistent
with what Nicaragua's Memorial describes as ‘a substantially unanimous modern view concerning indirect use of force
...‘. It is inconsistent with the position which the United States has maintained since 1947 that one State's support of
guerrillas operating against another is tantamount to an armed attack against the latter's territorial integrity and political
independence. It is inconsistent with what Nicaragua rightly observes is a consistent practice of the United Nations hold-
ing that ‘substantial involvement‘ in the activities of armed insurgent groups is a violation of ‘the prohibition on the use
of force in Article 2 (4)‘. It is inconsistent with repeated declarations of the United Nations expressive of the internation-
al legal duty of States to refrain from fomenting civil strife – a form of aggression which the General Assembly has de-
nominated as among ‘the gravest of all crimes against peace and security ...‘. It is inconsistent with the terms of the
‘Friendly Relations‘ Declaration, which the Court treats as an authoritative expression of customary international law – a
declaration which, in its interpretation of Article 2, paragraph 4, of the Charter, holds that, ‘Every State has the duty to
refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State ...
when the acts ... involve a threat or use of force‘. It is inconsistent with the conclusion of Judge Lachs that ‘indirect
means of attacking States were barred‘ by this Declaration. It is inconsistent with the conclusion of Judge Jimenez de
Arechaga that this Declaration, ‘an important interstitial development of some of the implications*341 of Article 2 (4)‘,
deals with indirect aggression, including the support given by a government to acts of civil strife in another State. Such
acts, he points out, ‘may involve the use of force and States should not be permitted to do indirectly what they are pre-
cluded by the Charter from doing directly ...‘. And the Court's conclusion is inconsistent with the terms and intent of the
United Nations Definition of Aggression on which both Nicaragua and the Court rely.
I. The Court's Conclusion Is Inconsistent with the General Assembly's Definition of Aggression
162. While the conclusion which the Court has reached on this question is inconsistent with the large and authoritative
body of State practice and United Nations interpretation to which the Nicaraguan Memorial adverts, the Court is not the
first to maintain that acts of armed subversion – of ‘indirect aggression‘ – by one State against another cannot be tan-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 211
tamount to armed attack. In the long debates that ultimately culminated in the adoption by the United Nations General
Assembly of the Definition of Aggression, opinion on this question was divided. The Soviet Union, a leading proponent
of the adoption of a definition of aggression, in its draft definition enumerated among the acts of ‘armed aggression
(direct or indirect)‘:
‘The use by a State of armed force by sending armed bands, mercenaries, terrorists or saboteurs to the territory of an-
other State and engagement in other forms of subversive activity involving the use of armed force with the aim of
promoting an internal upheaval in another State ...‘ (A/8719, p. 8; emphasis supplied.)
Six Powers – Australia, Canada, Italy, Japan, the United Kingdom and the United States – proposed that the use of force
in international relations, ‘overt or covert, direct or indirect‘ by a State against the territorial integrity or political inde-
penence of another State may constitute aggression when effected by means including:
‘(6) Organizing, supporting or directing armed bands or irregular or volunteer forces that make incursions or infilt-
rate into another State;
(7) Organizing, supporting or directing violent civil strife or acts of terrorism in another State; or
*342 (8) Organizing, supporting or directing subversive activities aimed at the violent overthrow of the Government
of another State.‘ (A/8719, pp. 11-12.)
163. In marked contrast to these approaches of ‘East‘ and ‘West‘, 13 small and middle Powers put forward a draft defini-
tion of aggression which did not include indirect as well as direct uses of force. Their definition spoke only of ‘the use of
armed force by a State against another State‘. Their list of acts of aggression conspicuously failed to include acts of force
effected by indirect means. The Thirteen-Power draft further specified, in a section which did not list acts of aggression,
that:
‘When a State is a victim in its own territory of subversive and/or terrorist acts by irregular, volunteer or armed
bands organized or supported by another State, it may take all reasonable and adequate steps to safeguard its exist-
ence and its institutions, without having recourse to the right of individual or collective self-defence against the other
State under Article 51 of the Charter.‘ (Ibid., p. 10.)
That provision was complementary to a further proviso that:
‘The inherent right of individual or collective self-defence of a State can be exercised only in the case of the occur-
rence of armed attack (armed aggression) by another State ...‘ (Ibid., p. 9.)
164. As Professor Julius Stone – widely recognized as one of the century's leading authorities on the law of the use of
force in international relations –concluded in respect of the Thirteen-Power proposals:
‘to take away the right of individual and collective self-defence ... was, of course, the precise purpose of the
Thirteen Power provision ... It sought to achieve this purpose, both by withholding the stigma of aggression, and
by express statement. Acceptance of such a provision would have been at odds with the Charter and general in-
ternational law as hitherto accepted in a number of respects.
First ... international law imputed responsibility to a State knowingly serving as a base for such para-military activit-
ies, and gave the victim State rather wide liberties of self-defence against them.
Second, none of the Charter provisions dealing with unlawful use of force, whether armed or not, offers any basis for
distinguishing between force applied by the putative aggressor, or indirectly applied by him through armed bands, ir-
regulars and the like ...
*343 Third ... the General Assembly has more than once included at least some species of 'indirect' aggression within
its description of 'aggression' ...
Fourth, it may be added that from at least the Spanish Civil War onwards, the most endemic and persistent forms of
resorts to armed force ... have been in contexts caught as 'aggression' by the Soviet and Six Power drafts, but con-
doned more or less fully by the Thirteen Power Draft.‘ (Conflict through Consensus, 1977, pp. 89-90.)

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 212
It will be observed that the essential legal rationale of the Judgment of the Court in the current case appears to be well
expressed by these Thirteen-Power proposals which Professor Stone characterized as ‘at odds with the Charter and gener-
al international law ...‘.
165. The Thirteen-Power proposals were not accepted by the United Nations Special Committee on the Question of De-
fining Aggression. They were not accepted by the General Assembly. On the contrary, the General Assembly by con-
sensus adopted a Definition of Aggression which embraces not all, but still the essence of, the proposals of the Six
Powers and the Soviet Union. Its list in Article 3 of the acts which shall ‘qualify as an act of aggression‘ includes:
‘(g) 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 the acts listed above, or its substantial involvement
therein.‘ (Emphasis supplied.)
As Professor Stone's examination of the proceedings of the Special Committee demonstrates, on this question:
‘it was the view of the Six which prevailed. This is that such activity is a case of aggression simpliciter, giving
rise like any other direct aggression to response by self-defence under general international law and under Art-
icle 51 of the Charter.‘ (Loc. cit., p. 75.)
Or, as the apparent author of Article 3 (g), Ambassador Rossides of Cyprus, put it, Article 3 (g) included in the Defini-
tion ‘a form of indirect aggression ... in so far as such indirect aggression amounted in practice to an armed attack‘
(1479th meeting of the Sixth Committee of the General Assembly, 18 October 1974, A/C.6/SR.1479, para. 15).
166. It has been demonstrated above and in the appendix to this opinion that the Nicaraguan Government is ‘substantially
involved‘ in the *344 sending of armed bands, groups and irregulars to El Salvador. Nicaragua apparently has not ‘sent‘
Nicaraguan irregulars to fight in El Salvador, but it has been ‘substantially involved‘ in the sending of leadership of the
Salvadoran insurgency back and forth. As has been shown by the admissions of a principal witness of Nicaragua, Mr.
MacMichael, and other evidence (see paras. 73, 87-92, 95-96, 99-112, 105, 108, 116, 120, 124-126, 143-145, 149, 186,
188 of the appendix to this opinion), leadership of the Salvadoran insurgency has been established in and operated from
Nicaragua, and moved into and out of El Salvador from and to its Nicaraguan bases with the full support of the Nicara-
guan Government, a situation which in substance equates with Nicaragua's ‘sending‘ of that leadership to direct the in-
surgency in El Salvador. As Professor Stone concludes, while Article 3 (g) ‘requires there to have been a 'sending’ into
the target State, it inculpates the host State not merely when that State did the sending, but also when it has a 'substantial
involvement therein'‘ (loc. cit., pp. 75-76). Nicaragua's substantial involvement further takes the forms of providing
arms, munitions, other supplies, training, command-and-control facilities, sanctuary and lesser forms of assistance to the
Salvadoran insurgents. Those insurgents, in turn, carry out acts of armed force against another State, namely, El Sal-
vador. Those acts are of such gravity as to amount to the other acts listed in Article 3 of the Definition of Aggression,
such as invasion, attack, bombardment and blockade. The many thousands of El Salvadorans killed and wounded, and the
enormous damage to El Salvador's infrastructure and economy, as a result of insurgent attacks so supported by Nicaragua
is ample demonstration of the gravity of the acts of the insurgents.
167. It accordingly follows not only that the multiple acts of subversive intervention by Nicaragua against El Salvador
are acts of aggression, and that those acts fall within the proscriptions of the Definition of Aggression. It is also import-
ant to note that the Definition – contrary to the Thirteen-Power proposals – designedly says nothing about prohibiting a
State from having recourse to the right of individual or collective self-defence when that State ‘is a victim in its own ter-
ritory of subversive and/or terrorist acts by irregular, volunteer or armed bands organized or supported by another State‘.
That prohibitive proposal proved unacceptable to the international community. Rather, it is plain that, under the Defini-
tion, and customary international law, and in the practice of the United Nations and of States, a State is entitled in pre-
cisely these circumstances to act in individual and collective self-defence. To be entitled to do so, it is not required to
show that the irregulars operating on its territory act as the agents of the foreign State or States which support them. It is

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 213
enough to show that those States are ‘substantially involved‘ in the sending of those irregulars on to its territory.
*345 168. The significance of the Definition of Aggression – or of any definition of aggression – should not be magni-
fied. It is not a treaty text. It is a resolution of the General Assembly which rightly recognizes the supervening force of
the United Nations Charter and the supervening authority in matters of aggression of the Security Council. The Defini-
tion has its conditions, its flaws, its ambiguities and uncertainties. It is openended. Any definition of aggression must be,
because aggression can only be ultimately defined and found in the particular case in the light of its particular facts. At
the same time, the Definition of Aggression is not a resolution of the General Assembly which purports to declare prin-
ciples of customary international law not regulated by the United Nations Charter. The legal significance of such resolu-
tions is controversial, a controversy which is not relevant for immediate purposes. This resolution rather is an interpreta-
tion by the General Assembly of the meaning of the provisions of the United Nations Charter governing the use of armed
force – the use of armed force ‘in contravention of the Charter‘. As such, of itself it is significant. Weighed as it should
be in the light of the practice and the doctrine which the Nicaraguan Memorial assembles – which may be extensively
amplified to the same effect – the Definition cannot be dismissed. In substance, however, the Court's Judgment – while
affirming that the Definition of Aggression reflects customary international law – does dismiss both the import of the
Definition of Aggression and the State practice and doctrine which on this paramount point is reflected by the Definition.
169. While in effect the Court does depreciate the General Assembly's Definition of Aggression, it does not do so in
terms. On the contrary, the Court maintains that:
‘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 grav-
ity as to amount to’ (inter alia) an actual armed attack conducted by regular forces, 'or its substantial involve-
ment 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 *346 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.‘
170. The Court's reasoning is open to criticism, in terms of the Definition of Aggression and under customary interna-
tional law – not to speak of the realities of modern warfare. Article 3 (g) does not confine its definition of acts that quali-
fy as acts of aggression to the sending of armed bands; rather, it specifies as an act of aggression a State's ‘substantial in-
volvement‘ in the sending of armed bands. That provision is critical to the current case. As pointed out in paragraph 166
of this opinion, and detailed in its appendix, Nicaragua has been pervasively, not merely substantially, involved in many
aspects of the sending of armed groups of insurgents to El Salvador – and especially involved in the sending of the lead-
ership of those insurgents, a leadership based in Nicaragua – even if Nicaragua itself has not simply sent such armed
bands from its territory to that of El Salvador. It is one thing to send; it is another to be ‘substantially involved‘ in the
sending.
171. Moreover, let us assume, arguendo, that the Court is correct in holding that provision of weapons or logistical sup-
port to rebels of themselves may not be tantamount to armed attack (an assumption which I do not share, not least be-
cause the term ‘logistic support‘ is so open-ended, including, as it may, the transport, quartering and provisioning of

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 214
armies). It does not follow that a State's involvement in the sending of armed bands is not to be construed as tantamount
to armed attack when, cumulatively, it is so substantial as to embrace not only the provision of weapons and logistical
support, but also participation in the re-organization of the rebellion; provision of command-and-control facilities on its
territory for the overthrow of the government of its neighbour by that rebellion; provision of sanctuary for the foreign in-
surgent military and political leadership, during which periods it is free to pursue its plans and operations for overthrow
of the neighbouring government; provision of training facilities for those armed bands on its territory and the facilitation
of passage of the foreign insurgents to third countries for training; and permitting the rebels to operate broadcasting and
other communication facilities from its territory in pursuance of their subversive activities. The fact is that this pervasive
and prolonged support by the Nicaraguan Government of the insurgency in El Salvador has been a major, perhaps the
critical, factor in the transformation of what, before 1979, were largely sporadic if serious acts of insurgent terrorism into
an organized and *347 effective army of guerrillas which to this day poses the gravest challenge to the Government and
people of El Salvador.
J. The Question of Whether Measures in Self-Defence May Be Taken Only in Case of Armed Attack
172. The Court has found that there has been no armed attack by Nicaragua upon El Salvador and – in my view, wrongly
– no action by Nicaragua tantamount to an armed attack upon El Salvador. The Court rightly observes that the issue of
the lawfulness of a response to the imminent threat of armed attack has not been raised in this case, and that the Court ac-
cordingly expresses no view on that issue. Nevertheless, its Judgment may be open to the interpretation of inferring that a
State may react in self-defence, and that supportive States may react in collective self-defence, only if an armed attack
occurs. It should be observed that, if that is a correct interpretation of the Court's Judgment, such an inference is obiter
dictum. The question of whether a State may react in self-defence to actions other than armed attack was not in issue in
this case. The United States contended that Nicaragua had intervened and continues to intervene in El Salvador and other
neighbouring States in order to foment and sustain armed attacks upon the Governments of those States, and that its sub-
versive intervention in the governing circumstances was and is tantamount to armed attack. Nicaragua denied and denies
all such intervention, while accusing the United States of direct and indirect armed attacks against it. Both Nicaragua and
the United States agree that the material support by a State of irregulars seeking to overthrow the government of another
State amounts not only to unlawful intervention against but armed attack upon the latter State by the former. They essen-
tially differed not on the law but on the facts. The question of whether a State is justified in reacting in self-defence
against acts not constituting or tantamount to an armed attack was not engaged.
173. For my part, I have not pursued this important question because on this I am in agreement with the Parties: the crit-
ical problem in this case, properly viewed, essentially is not one of law but of fact; and the highly important question of
whether a State may act in self-defence in the absence of armed attack was not argued, and understandably so. Neverthe-
less, I wish, ex abundanti cautela, to make clear that, for my part, I do not agree with a construction of the United Na-
tions Charter which would read Article 51 as if it were worded: ‘Nothing in the present Charter shall impair the inherent
right of individual or collective self-defence if, and only if, an armed attack occurs ...‘ I do not agree that the terms or in-
tent of *348 Article 51 eliminate the right of self-defence under customary international law, or confine its entire scope
to the express terms of Article 51. While I recognize that the issue is controversial and open to more than one substantial
view, I find that of Sir Humphrey Waldock more convincing than contrary interpretations:
‘Does Article 51 cut down the customary right and make it applicable only to the case of resistance to armed attack
by another State? This does not seem to be the case. The right of individual self-defence was regarded as automatic-
ally excepted from both the Covenant and the Pact of Paris without any mention of it. The same would have been
true of the Charter, if there had been no Article 51, as indeed there was not in the original Dumbarton Oaks propos-
als. Article 51, as is well known, was not inserted for the purpose of defining the individual right of self-defence but
of clarifying the position in regard to collective understandings for mutual selfdefence, particularly the Pan-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 215
American treaty known as the Act of Chapultepec. These understandings are concerned with defence against external
aggression and it was natural for Article 51 to be related to defence against 'attack’. Article 51 also has to be read in
the light of the fact that it is part of Chapter VII. It is concerned with defence to grave breaches of the peace which
are appropriately referred to as armed attack. It would be a misreading of the whole intention of Article 51 to inter-
pret it by mere implication as forbidding forcible self-defence in resistance to an illegal use of force not constituting
an 'armed attack'. Thus, it would, in my view, be no breach of the Charter if Denmark or Sweden used armed force to
prevent the illegal arrest of one of their fishing vessels on the high seas in the Baltic. The judgment in the Corfu
Channel Case is entirely consistent with this view ...‘ (C. H. M. Waldock, ‘The Regulation of the Use of Force by In-
dividual States in International Law‘, Collected Courses, The Hague (1952-II), pp. 496-497. Accord: D. W. Bowett,
Self-Defence in International Law, 1958, pp. 182-193; Myres S. McDougal and Florentino P. Feliciano, Law and
Minimum World Public Order, 1961, pp. 232-241; Oscar Schachter, ‘The Right of States to Use Armed Force‘,
Michigan Law Review, 1984, Vol. 82, pp. 1620, 1634.)
K. The Court's Views on Counter-Intervention and its Implied Support for ‘Wars of Liberation‘
174. When the Court's Judgment comes to deal with questions of intervention, it finds that the United States has commit-
ted ‘a clear breach of the principle of non-intervention‘ by its support of the contras. The Court at the same time finds it
possible – remarkably enough – to absolve Nicaragua of any act of intervention in El Salvador, despite its multiple *349
acts of intervention in El Salvador in support of the Salvadoran insurgents. The Court goes on to reach the following con-
clusion:
‘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 ... 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 jus-
tified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Sal-
vador, 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.‘
175. While this conclusion may be treated as obiter dictum in view of the fact that there is no plea of counter-inter-
vention before the Court, it is no more correct because it is unnecessary. In my view, its errors are conspicuous. The
Court appears to reason this way. Efforts by State A (however insidious, sustained, substantial and effective), to over-
throw the government of State B, if they are not or do not amount to an armed attack upon State B, give rise to no right
of self-defence by State B, and hence, to no right of State C to join State B in measures of collective self-defence. State
B, the victim State, is entitled to take counter-measures against State A, of a dimension the Court does not specify. But
State C is not thereby justified in taking counter-measures against State A which involve the use of force.
176. In my view, the Court's reasoning, certainly as it applies to the case before the Court, is erroneous for the following
reasons: (a) A State is not necessarily and absolutely confined to responding in self-defence only if it is the object of
armed attack. (b) Armed attack in any event is not only the movement of regular armed forces across international fronti-
ers; it is not only the sending by State A of armed bands across an international frontier to attack State B or overthrow its
government; it is, as the Definition of Aggression puts it, ‘substantial involvement therein‘ – for example, the very sort
of substantial involvement which Nicaragua's multifaceted involvement in promoting and sustaining the Salvadoran in-
surgency illustrates. (c) In a case such as the case before the Court, where Nicaragua has carried out and continues to
carry out the acts of support of armed insurgency against the Government of El Salvador which El Salvador and the
United States have charged and the appendix to this opinion establishes, the Government of El Salvador has had the
choice of acting in self-defence or capitulating. Lesser measures of counter-intervention could not suffice. It has chosen

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 216
to act in self-defence, but it lacks the power to carry the battle to the territory of the aggressor, Nicaragua. (d) In such a
*350 case, El Salvador is entitled to seek assistance in collective self-defence. Such assistance may in any event take
place on the territory of El Salvador, as by the financing, provisioning and training of its troops by the United States.
But, as shown below, contemporary international law recognizes that a third State is entitled to exert measures of force
against the aggressor on its own territory and against its own armed forces and military resources.
177. I find the Court's enunciation of what it finds to be the law of counter-intervention as applied to this case unpersuas-
ive for all these reasons. More generally, I believe that it raises worrisome questions. Let us suppose that State A's sup-
port of the subversion of State B, while serious and effective enough to place the political independence of State B in
jeopardy, does not amount to an armed attack upon State B. Let us further suppose that State A acts against State B not
only on its behalf but together with a Great Power and an organized international movement with a long and successful
history of ideology and achievement in the cause of subversion and aggrandizement, and with the power and will to stim-
ulate further the progress of what that movement regards as historically determined. If the Court's obiter dictum were to
be treated as the law to which States deferred, other Great Powers and other States would be or could be essentially
powerless to intervene effectively to preserve the political independence of State B and all other similarly situated States,
most of which will be small. According to the Court, State B could take counter-measures against State A, but whether
they would include measures of force is not said. What is said is that third States could not use force, whether or not the
preservation of the political independence – or territorial integrity – of State B depended on the exertion of such meas-
ures. In short, the Court appears to offer – quite gratuitously – a prescription for overthrow of weaker governments by
predatory governments while denying potential victims what in some cases may be their only hope of survival.
178. The disturbing implications of the Court's construction of the scope of lawful counter-intervention are much magni-
fied by another of the Court's apparent asides. In discussing the nature of prohibited intervention, the Court, in paragraph
206 of its Judgment, notes that there have been in recent years a number of instances of foreign intervention for the bene-
fit of forces opposed to the government of another State. It then interposes: ‘The Court is not here concerned with the
process of decolonization; this question is not in issue in the present case.‘ The Court goes on to consider whether States
have a general right to intervene directly *351 or indirectly, with or without armed force, in support of the internal op-
position of another State whose cause appears particularly worthy by reason of the political and moral values with which
it is identified. The Court rightly observes that for such a general right to come into existence would involve a funda-
mental modification of the customary law principle of non-intervention.
179. Yet the implication, or surely a possible implication, of the juxtaposition of the Court's statements is that the Court
is of the view that there is or may be not a general but a particular right of intervention provided that it is in furtherance
of ‘the process of decolonization‘. That is to say, by these statements, the Court may be understood as inferentially en-
dorsing an exception to the prohibition against intervention, in favour of the legality of intervention in the promotion of
so-called ‘wars of liberation‘, or, at any rate, some such wars, while condemning intervention of another political charac-
ter.
180. In contemporary international law, the right of self-determination, freedom and independence of peoples is univer-
sally recognized; the right of peoples to struggle to achieve these ends is universally accepted; but what is not universally
recognized and what is not universally accepted is any right of such peoples to foreign assistance or support which con-
stitutes intervention. That is to say, it is lawful for a foreign State or movement to give to a people struggling for self-
determination moral, political and humanitarian assistance; but it is not lawful for a foreign State or movement to inter-
vene in that struggle with force or to provide arms, supplies and other logistical support in the prosecution of armed re-
bellion. This is true whether the struggle is or is proclaimed to be in pursuance of the process of decolonization or against
colonial domination. Moreover, what entities are susceptible of decolonization is a matter of dispute in many cases. What

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 217
is a colony, and who is the colonizer, are the subjects of sharply differing views. Examples of what may be contentiously
characterized – though not necessarily unreasonably characterized – as colonies may be readily assembled. But for
present purposes, it is enough to point out that the lack of beauty is in the eye of the beholder.
181. For reasons both of principle and practicality, leading States for years have gone on record in support of the consid-
erations recalled in the previous paragraph. It is not to be expected that their view of the law, or the content of the law,
will be influenced by an acknowledged and ambiguous dictum of the Court on a topic of which no trace can be found in
the pleadings of the Parties. Perhaps the best that can be said of this unnecessary statement of the Court is that it can be
read as taking no position on the legality of intervention in support of the process of decolonization, but as merely refer-
ring to a phenomenon as to which positions in the international community differ. Even so, it is difficult to find justifica-
tion for *352 the Court raising so contentious a question, the more so when it acknowledges that that question is not in
issue in the present case.
L. El Salvador Is Entitled to Act in Self-Defence against Nicaraguan Armed Attack
182. If, as has been shown, El Salvador not only ‘considers itself under the pressure of an effective armed attack on the
part of Nicaragua‘ (Declaration of Intervention, para. I), but in actual fact – and accepted law – is under the pressure of
an effective armed attack on the part of Nicaragua, it follows that El Salvador may invoke and implement, as against
Nicaragua, ‘the inherent right of individual or collective self-defence‘ which it is recognized to possess by Article 51 of
the United Nations Charter. It is entitled to do so not only in accordance with Article 51 of the United Nations Charter
but in accordance with the pertinent Inter-American principles which are described below. It is no less so entitled under
the principles of customary international law. The existence under customary international law of what Article 51 refers
to as the ‘inherent right of individual or collective self-defence‘ is unquestioned. As Lauterpacht observed, ‘The right to
use force ... in self-defence constitutes a permanent limitation of the prohibition of recourse to force in any system of
law‘ (H. Lauterpacht, Oppenheim's International Law, Vol. II, 7th ed., p. 187). ‘The right of self-defence is a general
principle of law, and as such it is necessarily recognized to its full extent in international law.‘ (H. Lauterpacht, The
Function of Law in the International Community, pp. 179-180.)
183. This is made the clearer by a measure of supposition. Let us suppose, arguendo, that, while Nicaragua is Nicaragua,
El Salvador is a State the size of one of the major States of Latin America – say, a State many times the area and popula-
tion and several times the armed strength which El Salvador actually enjoys. Let us suppose further that El Salvador, so
enlarged, was the victim of the very acts of forceful intervention which it has been shown that Nicaragua has in fact been
‘substantially involved‘ in since 1979. Could it be supposed that such an enlarged El Salvador would not only have, but
would not itself forcefully exercise, its right of selfdefence directly against Nicaragua? If El Salvador has seemed re-
strained, if it has not protested quite as soon as and as loudly and formally as it otherwise might have, if it has not itself
attempted to attack the warehouses, safehouses, training sites, and command-and-control facilities which Salvadoran in-
surgents have enjoyed in the territory of Nicaragua, has not that been not because of El Salvador's lack of legal standing
but its lack of power? In short, any questions that may legitimately be raised about El Salvador's acting in self-defence
against the established aggression of Nicaragua are not questions of El Salvador's legal entitlement.
*353 184. Rather, the questions that should give rise to discussion are: may, in this case, the United States lawfully act in
collective self-defence with El Salvador against Nicaragua? If it may do so, may it do so only on the territory of El Sal-
vador, or may it carry the defence to the territory of Nicaragua? If it may so carry its defence, have the measures it has
employed been necessary and proportionate to the armed attack of Nicaragua upon El Salvador? What follows from the
failure of the United States to report those measures to the Security Council? If the United States is found to have acted
in collective self-defence, is its so doing a sufficient defence to charges that it has violated its responsibility under inter-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 218
national law towards Nicaragua?
M. The United States is entitled to act in collective self-defence with El Salvador
1. The position of El Salvador
185. El Salvador maintains:

‘our nation cannot, and must not, remain indifferent in the face of this manifest aggression and violent destabil-
ization of the Salvadorian society which oblige the State and the Government to legitimately defend themselves.
For that reason we have sought and continue to seek assistance from the United States of America and from oth-
er democratic nations of the world; we need that assistance both to defend ourselves from this foreign aggression
that supports subversive terrorism in El Salvador, and to alleviate and repair the economic damage that this con-
flict has created for us.‘ (Declaration of Intervention, para. III.)
It further maintains:
‘Faced with this aggression, we have been called upon to defend ourselves, but our own economic and military cap-
ability 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 Congress-
men, reiterated the importance of this assistance for our defence from the United States and the democratic nations
of the world.‘ (Ibid., para. XII.)
And El Salvador concludes:
‘In the opinion of El Salvador ... it is not possible for the Court to adjudicate Nicaragua's claims against the United
States without *354 determining the legitimacy or the legality of any armed action in which Nicaragua claims the
United States has engaged and, hence, without determining the rights of El Salvador and the United States to engage
in collective actions of legitimate defence. Nicaragua's claims against the United States are directly interrelated with
El Salvador's claims against Nicaragua ...
Any case against the United States based on the aid provided by that nation at El Salvador's express request, in order
to exercise the legitimate act of self-defence, cannot be carried out without involving some adjudication, acknow-
ledgment, or attribution of the rights which any nation has under Article 51 of the United Nations Charter to act col-
lectively in legitimate defence.‘ (Ibid., para. XIV.)
186. Nicaragua contends in its observations of 10 September 1984 on El Salvador's Declaration of Intervention that that
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 that it is under armed attack from
Nicaragua.‘
The Court adopts this contention of Nicaragua, and concludes that the evidence available supports the view that no re-
quest was made to the United States to come to the assistance of El Salvador (or Honduras or Costa Rica), in the exercise
of collective defence against a supposed armed attack by Nicaragua, prior to El Salvador's Declaration of Intervention of
15 August 1984.
187. The difficulty with the contention of Nicaragua and the concurring conclusions of the Court is that they are not ad-
equately supported by the facts. As shown by the quotations reproduced in the appendix to this opinion, at paragraphs
110, 116, 117, 118, 121, 128 and 129, El Salvador repeatedly claimed to be under armed attack from Nicaragua well be-
fore it filed its Declaration of Intervention, and it more than once gave public indication that it accordingly sought assist-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 219
ance from the United States.
188. The Court in otherwise concluding fails to refer to the statements by El Salvador quoted in the paragraphs of the ap-
pendix just cited, but it refers to other statements in which no such declarations and requests are found. The Court adds:
‘The Court however notes that according to the report, supplied by the Agent of Nicaragua, of the meeting on 12 Au-
gust 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].'
*355 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 con-
cerned to the United States, the Court considers that this report is not entirely without significance.‘
189. But while the Court believes that some significance should be attached to this report, I believe that the Court has
misread the terms of the Inter-American Treaty of Reciprocal Assistance (the ‘Rio Treaty‘) to which Mr. Enders referred.
That Treaty contains two quite distinct provisions under which the United States might extend protection to El Salvador.
One is found in Article 3, paragraphs 1 and 2 of which provide:
‘1. The High Contracting Parties agree that an armed attack by any State against an American State shall be con-
sidered as an attack against all the American States and, consequently, each one of the said Contracting Parties un-
dertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective selfdefence re-
cognized by Article 51 of the Charter of the United Nations.
2. 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 in-
dividually take in fulfillment of the obligation contained in the preceding paragraph and in accordance with the prin-
ciple of continental solidarity. The Organ of Consultation shall meet without delay for the purpose of examining
those measures and agreeing upon the measures of a collective character that should be taken.‘
Mr. Enders' quoted remark obviously did not refer to an armed attack under Article 3, for he spoke at that point only of
the building up of the arms race in Central America in which Nicaragua has taken so marked a lead. (See, in support of
this conclusion, the further passage from the Ortega/Enders transcript quoted in the appendix, para. 157.) To what provi-
sion of the Rio Treaty then did Mr. Enders refer? Presumably, to Article 6, which provides:
‘If the inviolability or the integrity of the territory or the sovereignty or political independence of any American
State should be affected by an aggression which is not an armed attack or by an extra-continental or intra-continental
conflict, or by any other fact or situation that might endanger the peace of America, the Organ of Consultation shall
meet immediately in order to agree on the measures which must be taken in case of aggression to assist the victim of
*356 the aggression or, in any case, the measures which should be taken for the common defense and for the main-
tenance of the peace and security of the Continent.‘
It is plausible that, in the view of El Salvador and the United States, which the OAS Organ of Consultation might be
brought to share, an extraordinary emplacement of arms in Nicaragua might be seen as a fact or situation that might en-
danger the peace (as was the case in the Cuban missile crisis). But this reference of Mr. Enders is, in my view, of no sig-
nificance in weighing the authenticity of the claims of El Salvador that it made requests to the United States for assist-
ance in meeting what it viewed as Nicaraguan actions tantamount to an armed attack against it before and after 12 Au-
gust 1981.
190. As observed above, if the Court had reason to doubt the accuracy of El Salvador's claims in this regard, it would
have been perfectly possible for the Court to request El Salvador to supply evidence in support of the claims which its

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 220
Declaration of Intervention made to the Court. The Court rather has chosen to draw a questionable inference from a
memorandum of conversation supplied by Nicaragua, while overlooking statements in the public domain by El Salvador
which are supportive of its claims. The Court finds it appropriate to take various claims by Nicaragua and witnesses testi-
fying on its call at their face value, while refusing to credit the claim of a State, otherwise supported by some evidence in
the public domain, that it has been under armed attack for years and has requested assistance in meeting that attack.
191. Moreover, in the Court's view, apparently the only kind of declaration that a State is under armed attack which
counts is one formally and publicly made; and the only kind of request for assistance that appears to count is one form-
ally and publicly made. But where is it written that, where one State covertly promotes the subversion of another by mul-
tiple means tantamount to an armed attack, the latter may not informally and quietly seek foreign assistance? It may be
answered that it is written in Article 51 of the United Nations Charter that measures taken by Members in the exercise of
the right of self-defence shall be immediately reported to the Security Council. That answer, which is not insubstantial,
nevertheless is, in my view, insufficient, for reasons explained below (see paras. 221-227 of this opinion).
2. The position of the United States
192. For its part, the United States, speaking through its Secretary of State, submitted an affidavit to this Court which de-
clares:
‘I hereby affirm that the United States recognizes and respects the prohibitions concerning the threat or use of force
set forth in the Charter of the United Nations, and that the United States considers *357 its policies and activities in
Central America, and with respect to Nicaragua in particular, to be in full accord with the provisions of the Charter
of the United Nations. Pursuant to the inherent right of collective self-defense, and in accord with its obligations un-
der the Inter-American Treaty of Reciprocal Assistance, the United States has provided support for military activities
against forces directed or supported by Nicaragua as a necessary and proportionate means of resisting and deterring
Nicaraguan military and paramilitary acts against its neighbors, pending a peaceful settlement of the conflict. I fur-
ther affirm that the overthrow of the Government of Nicaragua is not the object nor the purpose of United States
policy in the region. Our position in this respect is clear and public. As President Reagan stated in a published letter
to Senator Baker of April 4, 1984:
'The United States does not seek to destabilize or overthrow the Government of Nicaragua; nor to impose or compel
any particular form of government there.
We are trying, among other things, to bring the Sandinistas into meaningful negotiations and constructive, verifiable
agreements with their neighbors on peace in the region.
We believe that a pre-condition to any successful negotiations in these regards is that the Government of Nicaragua
cease to involve itself in the internal or external affairs of its neighbors, as required of member nations of the OAS.'‘
3. The pertinence of provisions of the Inter-American Treaty of Reciprocal Assistance
193. Provisions of the Rio Treaty are pertinent to the answer to the question of whether the United States is entitled to act
in collective self-defence with El Salvador. The Rio Treaty was not invoked by Nicaragua in its Application or argument,
with the result, in my view, that the dispute has not arisen under that multilateral treaty, which accordingly is not, or ar-
guably is not, within the reach of the multilateral treaty reservation. In any event, the essential consideration is that El
Salvador, Nicaragua and the United States are parties to the Rio Treaty and are bound by it.
194. While it was concluded after the entry into force of the United Nations Charter, the Rio Treaty was negotiated in
pursuance of the Act of Chapultepec. That Act, concluded at the Inter-American Conference on Problems of War and
Peace of 1945, established the principle that an attack against any American State would be considered an act of aggres-
sion against all other American States. Article 51 of the United Nations Charter was drafted essentially in response to the
insistence of the Latin American States that the possibility of action in individual and collective self-defence pursuant to

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 221
the Act of Chapultepec be preserved.

*358 ‘The drafting history shows that article 51 was intended to safe-guard the Chapultepec Treaty which provided
for collective defense in case of armed attack. The relevant commission report of the San Francisco Conference de-
clared 'the use of arms in legitimate self-defense remains admitted and unimpaired’. . . . When article 51 was adopted
in 1945, it was intended to legitimize the security arrangement of the Chapultepec Act . . . That treaty declared, in ef-
fect, that aggression against one American state shall be considered an act of aggression against all. This was ex-
pressly referred to at the San Francisco Conference as the reason for collective self-defense in article 51 . . . When a
state comes to the aid of another, the legal issue is not whether the assisting state has a right of individual defense
but only whether the state receiving aid is the victim of an external attack.‘ (Oscar Schachter, loc. cit., pp.
1633-1634, 1639.)
Speaking for the Latin American States, the Foreign Minister of Colombia thus placed on record at San Francisco, as an
authoritative interpretation of Article 51, the following understanding:
‘The Latin American Countries understood, as Senator Vandenberg had said, that the origin of the term 'collective
self-defense’ is identified with the necessity of preserving regional systems like the Inter-American one. The
Charter, in general terms, is a constitution, and it legitimatizes the right of collective self-defense to be carried out in
accord with the regional pacts so long as they are not opposed to the purposes and principles of the Organization as
expressed in the Charter. If a group of countries with regional ties declare their solidarity for their mutual defense, as
in the case of the American states, they will undertake such defense jointly if and when one of them is attacked. And
the right of defense is not limited to the country which is the direct victim of aggression but extends to those coun-
tries which have established solidarity, through regional arrangements, with the country directly attacked. This is the
typical case of the American system. The Act of Chapultepec provides for the collective defense of the hemisphere
and establishes that if an American nation is attacked all the rest consider themselves attacked. Consequently, such
action as they may take to repel aggression, authorized by the article which was discussed in the subcommittee yes-
terday, is legitimate for all of them. Such action would be in accord with the Charter, by the approval of the article,
and a regional arrangement may take action, provided it does not have improper purposes as, for example, joint ag-
gression against another state. From this, it may be deduced that the approval of this article implies that the Act of
Chapultepec is not in contravention of the Charter.‘ (UNCIO docs., Vol. 12, pp. 680-681.)
*359 195. The Rio Treaty thus concluded pursuant to the Act of Chapultepec and in accordance with the United Nations
Charter contains the provisions quoted in paragraph 189 of this opinion. It will be observed that, under Article 3, on the
request of the attacked State, ‘each one of the Contracting Parties may determine the immediate measures which it may
individually take in fulfillment of the obligation‘ arising from treating an attack against an American State as an attack
on all the American States. It may do so until the Organ of Consultation of the OAS or the United Nations Security
Council has taken the measures necessary to maintain international peace and security. By way of contrast, if an Americ-
an State is affected by ‘an aggression which is not an armed attack . . . the Organ of Consultation shall meet immediately
in order to agree on the measures which must be taken in case of aggression to assist the victim . . .‘ (Art. 6).
196. In implementation of the Rio Treaty, as well as its inherent right recognized by Article 51 of the United Nations
Charter, El Salvador has resisted Nicaragua's armed attack by acting in self-defence, and, equally, the United States has
determined ‘the immediate measures which it may individually take in fulfillment of the obligation‘ it has undertaken to
treat an attack on any American State as an attack on all (including itself). By the terms and intent of the Rio Pact, the
United States is entitled individually to determine such measures until the OAS and the United Nations Security Council
have acted; it does not require the prior authorization either of the OAS or of the Security Council. In so doing, the
United States fulfils an obligation which it has undertaken to act in collective self-defence (contrary to the Court's unten-
able view). As the former Director of the Legal Department of the OAS has written:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 222
‘While under the United Nations Charter self-defense is only a right, under article 3 of the Treaty self-defense is
both a right and an obligation. The reason for the difference is that the Treaty is based on a commitment to reciprocal
assistance.‘ (Francisco V. Garcia Amador, ‘The Rio de Janeiro Treaty: Genesis, Development, and Decline of a Re-
gional System of Collective Security‘, Inter-American Law Review, Vol. 17, 1985, pp. 11-12.)
197. While, as Dr. Garcia Amador's analysis shows, the OAS system of collective security has a mixed record, and while
the Rio Treaty itself is the subject of significant revisions which have not yet come into force, it should be observed that
the OAS has interpreted and applied the Rio Treaty on related occasion in ways that are supportive of the current inter-
pretation of its legal obligations which the United States advances. In response to Cuba's repeated efforts to overturn cer-
tain governments of Latin America during the 1960s, the Organ of Consultation of the Inter-American System met and
adopted resolutions which recognized that such *360 subversive activities could give rise to exercise of the right of indi-
vidual and collective self-defence. Thus Resolution I of the Ninth Meeting of C nsultation of 1964 reads in part as fol-
lows:
‘The Ninth Meeting of Consultation of Ministers of Foreign Affairs, Serving as Organ of Consultation in Application
of the Inter-American Treaty of Reciprocal Assistance,
Having seen the report of the Investigating Committee designated on December 3, 1963, by the Council of the Or-
ganization of American States, acting provisionally as Organ of Consultation, and
Considering:
That the said report establishes among its conclusions that 'the Republic of Venezuela has been the target of a series
of actions sponsored and directed by the Government of Cuba, openly intended to subvert Venezuelan institutions
and to overthrow the democratic Government of Venezuela through terrorism, sabotage, assault, and guerrilla war-
fare'; and
That the aforementioned acts, like all acts of intervention and aggression, conflict with the principles and aims of the
inter-American system,
Resolves:
1. To declare that the acts verified by the Investigating Committee constitute an aggression and an intervention on
the part of the Government of Cuba in the internal affairs of Venezuela, which affects all of the member states.
2. To condemn emphatically the present Government of Cuba for its acts of aggression and of intervention against
the territorial inviolability, the sovereignty, and the political independence of Venezuela.
.............................
5. To warn the Government of Cuba that if it should persist in carrying out acts that possess characteristics of ag-
gression and intervention against one or more of the member states of the Organization, the member states shall pre-
serve their essential rights as sovereign states by the use of self-defense in either individual or collective form, which
could go so far as resort to armed force, until such time as the Organ of Consultation takes measures to guarantee the
peace and security of the hemisphere.‘ (Inter-American Institute of International Legal Studies, The Inter-American
System, 1966, pp. 168-169.)
Paragraph 5 of the foregoing resolution is a clear holding that, under the law in force among the Members of the OAS,
the very kind of actions of *361 Nicaragua at issue in this case justify the use of armed force in individual or collective
self-defense.
4. The position under the United Nations Charter and customary international law
198. United States action is as clearly in essential conformity with Article 51 of the United Nations Charter as it is in es-
sential conformity with the Rio Treaty – except that it has failed to report immediately to the Security Council the meas-
ures taken in exercise of its right of collective self-defence. (The Rio Treaty also recognizes the supervening authority of
the Security Council.) The implications of that failure will be considered below. But before leaving the Inter-American

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 223
System, it should also be noted that the Charter of the Organization of American States, as revised, provides that, ‘An act
of aggression against one American State is an act of aggression against all the other American States‘ (Art. 3). And Art-
icle 27 provides:
American States.‘
199. Lauterpacht, in observing that the right ‘of self-defence against physical attack must be regarded as a natural right
both of individuals and of States‘, referred to Article 51 of the Charter and continued:
‘It will be noted that, in a sense, Article 51 enlarges the right of self-defence as usually understood – and the corres-
ponding right of recourse to force – by authorising both individual and collective self-defence. This means that a
Member of the United Nations is permitted to have recourse to action in self-defence not only when it is itself the
object of armed attack, but also when such attack is directed against any other State or States whose safety and inde-
pendence are deemed vital to the safety and independence of the State thus resisting – or participating in forcible res-
istance to – the aggressor. Such extension of the notion of self-defence is a proper expression of the ultimate identity
of interest of the international community in the preservation of peace. It is also a practical recognition of the fact
that – in the absence of an effective machinery of the United Nations for the suppression of acts of aggression – un-
less such right of collective self-defence is recognised the door is open for piecemeal annihilation of victims of ag-
gression by a State or States intent upon the domination of the world. In that sense collective self-defence is no more
than rationally conceived individual self-defence.‘ (Oppenheim's International Law, Vol. II, 7th ed. (1952), pp.
155-156.)
*362 The United States has officially declared itself to be of the view 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 .
. .‘ (Executive Order of the President of 1 May 1985 (Nicaraguan Supplemental Annex B, Attachment 1)). In his address
of 16 March 1986, President Reagan spoke of:
‘a mounting danger in Central America that threatens the security of the United States . . . I am speaking of
Nicaragua . . . It is not Nicaragua alone that threatens us, but those using Nicaragua as a privileged sanctuary for
their struggle against the United States. Their first target is Nicaragua's neighbors.‘
200. If the United States (and El Salvador) were to be adjudged not under the Charters of the United Nations and the
OAS and the pertinent Inter-American Treaties, but under customary international law, it is equally clear that the United
States and El Salvador are entitled to join together in exercising their inherent right of collective self-defence, and to do
so without the prior authorization of international organizations, universal or regional. In the pre-United Nations Charter
era – or, at any rate, in the pre-Pact of Paris and pre-League of Nations era – States were free to employ force and go to
war for any reason or no reason. When the use of force could be initiated so unrestrainedly, it was not conceivable that
the use of force in self-defence was constrained. Particularly where a State was the victim of armed attack, it and its al-
lies were perfectly free to respond in self-defence. (It should be recalled that the narrow criteria of the Caroline case con-
cerned anticipatory self-defence, not response to armed attack or to actions tantamount to an armed attack.) As for the
state of international law in the years 1920-1939, the judgments of the International Military Tribunals of Nuremberg and
Tokyo took the view that the general ban on the use of armed force was indefeasibly subject to an exception permitting
lawful recourse to armed force for self-defence, provided that the conditions justifying action in self-defence obtained.
N. Considerations of Necessity and Proportionality
201. Considerations of the necessity and proportionality of United States measures against Nicaragua have been initially
examined in paragraph 9 of this opinion. It has been concluded, for reasons set forth above in paragraphs 69-77, that the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 224
better view is that the question of the necessity of those measures currently is not justiciable. The Court has taken another
view, and concluded that both the direct and indirect actions of the United States against Nicaragua cannot be justified as
necessary measures of collective self-defence. If the question is to be adjudged, and *363 the Court has adjudged it, the
question of necessity essentially turns on whether there were available to the United States peaceful means of realizing
the ends which it has sought to achieve by forceful measures. As Judge Ago put it in a report to the International Law
Commission:
‘The reason for stressing that action taken in self-defence must be necessary is that the State attacked . . . must not,
in the particular circumstances, have had any means of halting the attack other than recourse to armed force. In other
words, had it been able to achieve the same result by measures not involving the use of armed force, it would have
no justification for adopting conduct which contravened the general prohibition against the use of armed force. The
point is self-evident and is generally recognized; hence it requires no further discussion . . .‘ (‘Addendum to the
eighth report on State responsibility‘, Yearbook of the International Law Commission, 1980, Vol. II, Part One, p.
69.)
202. The Salvadoran rebels in early 1979 were relatively weak; as Annex 50, page 2, to the Counter-Memorial of the
United States indicates, before 1980 the diverse guerrilla groups in El Salvador were ill-co-ordinated and ill-equipped;
they were armed with pistols, hunting rifles and shotguns. (Nicaragua offered no evidence to rebut these contentions.) By
January 1981, with the benefit of a large measure of unity achieved with the particular assistance of Cuba, and with the
aid of a massive infusion of arms, mainly channelled through Nicaragua, as well as training in Cuba and Nicaragua and
co-ordination and command exercise from Nicaragua, the insurgents were able to mount their ‘final offensive‘. They
have been able to maintain a significant, well-supplied level of hostilities since. It is obvious that the Government of El
Salvador, faced with a large-scale insurgency continuously so fuelled by foreign intervention, particularly of Nicaragua
and Cuba, had no means of dealing with the internal and external attack upon it other than recourse to armed force. If the
Government of El Salvador had declined to fight the insurgents, and if it had confined itself to a readiness to negotiate
with them, that Government would have been overthrown years ago. The Government of El Salvador also found that it
was unable to resist foreign-supported insurgents effectively without foreign assistance; it requested the assistance of the
United States. The United States responded in January 1981 by resuming the provision of arms and training to the forces
of the Government of El Salvador and by provision of increased economic and financial aid. Subsequently, about a year
later, the United States further responded by exerting armed pressure upon the source of much of El Salvador's travail,
Nicaragua. Were the measures applied by the United States against Nicaragua necessary? El Salvador itself was not
strong enough to apply them, but it welcomed those measures as measures which would diminish the *364 effectiveness
of Nicaraguan intervention against it (see the appendix to this opinion, paras. 121, 128-129).
203. In my view, the decision of the United States in late 1981 that the exertion of armed pressures upon Nicaragua was
necessary was not unreasonable. For more than a year, the United States had endeavoured to assist El Salvador in sup-
pressing insurgency and Nicaraguan intervention in support of that insurgency by assistance to El Salvador confined to
El Salvador, and by diplomatic representations to the Government of Nicaragua. Both courses of action had proved insuf-
ficient. The insurgency in El Salvador was contained but not suppressed; the human and material damage inflicted by it
continued to be unacceptably severe. Nicaragua had not sufficiently responded, positively and definitively, to United
States requests, warnings or inducements (such as the prospect of resumed economic assistance). On the basis of many
months of unhappy experience, the United States could reasonably have reached the conclusion late in 1981 that there
was no prospect of winding down the insurgency in El Salvador without cutting off foreign intervention in support of it,
and no prospect of Nicaragua's terminating its intervention unless it were forced to do so. In circumstances where an ag-
gressor State cannot be persuaded to cease its aggressive intervention, it is not unreasonable to seek to force the ag-
gressor State to cease its aggressive intervention.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 225
204. However, it could be argued that the United States, after the failure of the Enders mission and its other diplomatic
representations, should, before embarking on measures of force, have had recourse to multilateral means of peaceful set-
tlement, notably those of the Organization of American States and the United Nations. That is a substantial argument.
Presumably the judgment of the United States was that such recourse would have been ineffective. However plausible
such a judgment might have been, it may nevertheless be maintained that it should have exhausted those multilateral
remedies. But its failure to do so is mitigated by several factors.
205. In the first place, the United States has maintained diplomatic relations with the Nicaraguan Government and a read-
iness to negotiate with it (see, for example, the proposals for peaceful settlement it made to Nicaragua in 1982, even after
its support for the contras was underway; appendix to this opinion, para. 171). There have been recurrent rounds of bilat-
eral negotiations between the United States and Nicaragua since the United States undertook measures of force. In the
second place, the United States took part in a substantial multilateral effort at peaceful settlement which Nicaragua re-
buffed (appendix, para. 172). Third, the United States gave active support from its launching in 1983 to the Contadora
process – or maintained that it did so (opinions differ on the genuineness of United States – and Nicaraguan – support of
Contadora). The Contadora process,*365 which has been emphatically endorsed by the OAS and the United Nations, has
been treated by both Organizations as the preferred, priority route of settlement, to which they should both defer. In the
fourth place, the United Nations Security Council has been recurrently seized by Nicaragua of what it claims to be a bi-
lateral dispute with the United States, and the United States has taken an active part in the Security Council's handling of
the matter. To be sure, it has more than once exercised its power of veto to block resolutions desired by Nicaragua (and,
at other times, it has voted for relevant resolutions). But the failure of the Security Council to adopt a resolution is not to
be equated with the failure of the Security Council to take up a dispute or situation or to consider a charge of a threat to
the peace, breach of the peace or act of aggression.
206. There remains room for challenging the necessity of the measures involving the use of force undertaken by the
United States. But given the difficulties that beset adjudging that question at this juncture, which have been described
above, and in view of the foregoing considerations, I do not find that it can be concluded that those measures have, as a
matter of law, been unnecessary.
207. The Court's holding that United States measures against Nicaragua cannot be justified as necessary is particularly
based on the following consideration. The Court observes that these United States measures were only taken, and began
to produce their effects, several months after the major offensive (of January 1981) against the Government of El Sal-
vador by the insurgents had been completely repulsed. The Court concludes that it was possible to ‘eliminate‘ the main
danger to the Government of El Salvador without the United States embarking on activities in and against Nicaragua.
Thus the Court concludes that ‘it cannot be held that these activities were undertaken in the light of necessity‘.
208. In my view, this conclusion of the Court is as simplistic as it is terse. It fails to take sufficient account of the facts. It
is true that the results of the conspiracy among Cuba, Nicaragua and other States to arm and support the Salvadoran in-
surgency in order to overthrow the Government of El Salvador reached its initial material peak in preparation for the
‘final offensive‘ of January 1981, and that that offensive failed. It is true that, thereafter, in early 1981, after the Nicara-
guan Government had been caught, so to speak, red-handed in its massive shipment of arms and other support of the Sal-
vadoran insurgency, it suspended shipment of arms – for a time. But it is also true that, by the time in August 1981, that
Mr. Enders demanded of Commander Ortega that Nicaragua definitively cut off its material support of the Salvadoran in-
surgency, the flow of arms, ammunition, explosives, etc., through Nicaragua to the El Salvadoran insurgency had re-
sumed, and that Nicaraguan provision to that insurgency of command-and-control facilities, training facilities and other
support continued*366 unabated. It is also the fact that, in 1982, shipment of arms through Nicaragua to the insurgents
rose again very sharply, and has irregularly continued at varying, apparently lower, levels since. For its part, the Govern-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 226
ment of El Salvador continued to be hard pressed by well-armed and supplied insurgent assaults, in 1981, and 1982 and
in subsequent years, and is to this day. Thus the apparent inference of the Court – that there was no continuing need by
El Salvador for United States assistance which took the form of its activities in and against Nicaragua – is open to the
most profound question. The Court may opine that the main danger to El Salvador had been ‘eliminated‘ before the
United States intervened, but the Government of El Salvador, and the thousands of Salvadorans who have suffered and
died since January 1981 as a direct and indirect result of civil strife fuelled by foreign intervention, may be presumed to
have another view. The Court's assumption appears to be that El Salvador may be indefinitely bled by an insurgency pro-
visioned by Nicaragua, and that neither El Salvador nor an ally acting in its support may exert responsive measures dir-
ectly upon the primary immediate and continuing conduit for that insurgency's arms, ammunition, explosives and medi-
cines, Nicaragua. The Court appears to be open to the argument that, when the insurgents can, with the use of such
Nicaraguan-supplied material, mount a massive ‘final offensive‘, there might be ground for treating such a United States
response against Nicaragua as necessary, but not otherwise. But whether any such excursion into military analysis really
reflects the Court's belief is not clear – or more compelling than its reasoning in support of its conclusion that United
States activities cannot be sustained in the light of necessity.
209. Indeed, the imputation of the Court's opinion is that, while arguably the United States might have been justified in
responding promptly and overtly to Nicaragua's support of the January 1981 ‘final offensive‘ of the Salvadoran insur-
gents by the use of force against Nicaragua, it cannot possibly be justified in the covert application of force a year later.
In my view, that is an especially curious conclusion for the Court to reach. In the period between January 1981 and the
authorization by President Reagan of the application of armed pressures against Nicaragua towards the end of that year,
the United States mounted a serious effort to settle its dispute with Nicaragua through peaceful means. It tried, notably
through the Enders mission, to persuade Nicaragua to cease its activities in support of the overthrow of El Salvador's
Government. Only when that effort failed, did the United States have recourse to forceful measures. Is the United States
really to be faulted for taking the time to pursue prior recourse to measures of peaceful settlement?
*367 210. Moreover, where is it prescribed that, in response to covert measures of aggression, defensive measures must
be overt? The implausibility of such a position – which seems to be that of the Court – is the greater when one recalls
that covert measures may in some circumstances be more modest, and more readily terminated, than overt applications of
the use of force. Would the loss of life in Nicaragua really have been less, and the strength of the United States legal case
greater, if, rather than resorting to support of the contras and the covert mining of Nicaraguan ports and attacks on oil
stocks, the United States Air Force, in January 1981, had carried out air attacks on Nicaraguan military (and Salvadoran
insurgent) bases in Nicaragua, on Nicaraguan airports and sea ports and had endeavoured to interdict the flow of certain
ground and sea and air transport from Nicaragua?
211. It is even clearer that the measures of the United States have not been disproportionate. It was concluded at the out-
set of this opinion that, on their face, the measures taken by the United States, in their object and character, appear to be
proportional to those of Nicaragua's intervention in El Salvador. For its part, the Court holds that United States mining of
Nicaraguan ports and attacks on ports, oil installations, etc., do not satisfy the criterion of proportionality. ‘Whatever un-
certainty 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.‘ That may be
clear to the Court, but, for the reasons set out in paragraph 9 of this opinion, it is not clear to me. On the contrary, these
United States measures appear to be patently proportionate to the very similar measures of depredation in El Salvador of
the Salvadoran insurgents to which these United States measures were a response.
212. Moreover, for the test of proportionality to be met, there by no means must be perfect proportionality. As Judge Ago
has rightly written:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 227
‘The requirement of the proportionality of the action taken in self-defence, . . . concerns the relationship between
that action and its purpose, namely . . . that of halting and repelling the attack . . . It would be mistaken, however, to
think that there must be proportionality between the conduct constituting the armed attack and the opposing conduct.
The action needed to halt and repulse the attack may well have to assume dimensions disproportionate to those of the
attack suffered. What matters in this respect is the result to be achieved by the 'defensive’ action, and not the forms,
substance and strength of the action itself. A limited use of armed force may sometimes be sufficient for the victim
State to resist a likewise limited use of *368 armed force by the attacking State, but this is not always certain. Above
all, one must guard against any tendency in this connection to consider, even unwittingly, that self-defence is actu-
ally a form of sanction, such as reprisals. There must of course be some proportion between the wrongful infringe-
ment by one State of the right of another State and the infringement by the latter of a right of the former through re-
prisals. In the case of conduct adopted for punitive purposes, of specifically retributive action taken against the per-
petrator of a particular wrong, it is self-evident that the punitive action and the wrong should be commensurate with
each other. but in the case of action taken for the specific purpose of halting and repelling an armed attack, this does
not mean that the action should be more or less commensurate with the attack. Its lawfulness cannot be measured ex-
cept by its capacity for achieving the desired result. In fact, the requirements of the 'necessity' and 'proportionality' of
the action taken in self-defence can simply be described as two sides of the same coin. Self-defence will be valid as a
circumstance precluding the wrongfulness of the conduct of the State only if that State was unable to achieve the de-
sired result by different conduct involving either no use of armed force at all or merely its use on a lesser scale.
Within these limits and in this sense, the requirement of proportionality is definitely confirmed by State practice.
The occasional objections and doubts expressed about it have been due solely to the mistaken idea of a need for
some kind of identity of content and strength between the attack and the action taken in self-defence. It must be em-
phasized once again that, without the necessary flexibility, the requirement would be unacceptable. As indicated at
the beginning of this paragraph, a State which is the victim of an attack cannot really be expected to adopt measures
that in no way exceed the limits of what might just suffice to prevent the attack from succeeding and bring it to an
end.‘ (Loc. cit., p. 69.)
213. Judge Ago adds:

‘There remains the third requirement, namely that armed resistance to armed attack should take place immediately,
i.e., while the attack is still going on, and not after it has ended. A State can no longer claim to be acting in self-
defence if, for example, it drops bombs on a country which has made an armed raid into its territory after the raid has
ended and the troops have withdrawn beyond the frontier. If, however, the attack in question consisted of a number
of successive acts, the requirement of the immediacy of the self-defensive action would have to be looked at in the
light of those acts as a whole. At all events, practice and doctrine seem to endorse this requirement *369 fully, which
is not surprising in view of its plainly logical link with the whole concept of self-defence.‘ (Loc. cit., p. 70.)
214. As observed above, the requirement of immediate response to armed attack which Judge Ago sets out is equally met
in the instant case by the United States. There is no question of measures of force being exerted in 1982 or later in re-
sponse to aggressive acts which occurred only in the period from the summer of 1979 to the winter of 1981. Rather, as is
shown in the appendix to this opinion, successive acts of aggressive intervention by Nicaragua in El Salvador have con-
tinued at least into 1985, if not to the present day. They were continuing when the United States mounted its responsive
armed pressures. Moreover, in so far as the question of the timing of the initial application of armed pressures against
Nicaragua is concerned – and this is a question which the Court raises – not only was it reasonable for the United States
to pursue possibilities of peaceful settlement before applying such pressures. The modalities of pressure which it chose
by their nature took time to organize. The contras could not be armed and trained overnight. Again it may be asked,
would it have been legal for the United States Air Force to have bombed Nicaraguan bridges in January 1981 whereas it

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 228
was illegal for the contras to have blown those bridges with United States support in March 1982?
O. Measures of Collective Self-Defence May Lawfully Extend to Nicaraguan Territory
215. If it be granted that the United States is entitled to take measures in collective self-defence in support of El Sal-
vador, must those measures be confined to the territory of El Salvador or may they lawfully be applied – as in fact they
have been applied – to the territory of Nicaragua itself?
216. The question of whether a State suffering armed attack, or actions tantamount to armed attack, must confine its de-
fence to its own territory is a question which has more pre-occupied scholars than statesmen. Learned opinion is divided,
but State practice, I believe, is not so indeterminate.
217. Thus one may contrast the views of Professor Oscar Schachter with those of Professor John Norton Moore. Profess-
or Schachter, in addressing the permissible limits of counter-intervention, observes that a principle has ‘been proposed‘
for placing limits on counter-intervention, namely, ‘that the counter-intervention should be limited to the territory of the
state where the civil war takes place‘. He continues:
‘This territorial limitation on counter-intervention has been observed in nearly all recent civil wars. However, it ap-
parently has been *370 abandoned by the United States in so far as its 'counter-intervention’ on the side of the El
Salvador regime has extended to support of anti-Sandinista forces fighting on Nicaraguan soil. The United States had
justified this action under the collective self-defense provision of article 51, presumably on the ground that
Nicaragua has engaged in an armed attack on El Salvador. The United States also 'counter-intervened' against
Nicaragua by mining approaches to Nicaraguan ports.‘ (Loc. cit., p. 1643.)
Professor Moore replies:

‘This 'proposed rule’ is not international law and should not be. As has been seen, most scholars have long supported
the proposition that intensive 'indirect' aggression is an armed attack permitting a defensive response under Article
51 of the UN Charter and customary international law. Since the traditional rule has long been that assistance to a
government at its request within its own boundaries is lawful even in the absence of an armed attack, the very pur-
pose of the determination of an armed attack is to permit proportional defensive measures against the attacking state.
There is no evidence that its draftsmen intended to limit Article 51 as suggested by this proposed rule or that states
party to the Charter have adopted any such rule. Contrary to Professor Schachter's suggestion that this proposed lim-
itation 'has been observed in nearly all recent civil wars', the United States specifically rejected it in the Vietnam
War when the argument was made that it was impermissible to respond against North Vietnam as a defense to its 'in-
direct' aggression against South Vietnam. It seems also to be rejected widely elsewhere, including in French, Soviet,
Chinese and Israeli state practice.
As a policy matter, the only purpose of such a rule would be to seek to reduce conflict by reducing the potential for
territorial expansion. The rule might be more likely, however, to encourage conflict and 'indirect' aggression by con-
vincing states that such aggression is free from substantial risk: if it works, they will win; if it fails, there is no signi-
ficant risk and they can try again. As this possibility suggests, the right of defense under customary international law
and the Charter is a right of effective defense; that is, a right to take such actions as are reasonably necessary to end
the attack promptly and protect the threatened values. Why should El Salvador and other Central American states be
required to accept an endless secret war against them? . . . The real check, when the proper scope of the defensive
right is in issue, is the well-established requirement of necessity and proportionality.‘ (‘The Secret War in Central
America and the Future of *371 World Order‘, American Journal of International Law, January 1986, Vol. 80, pp.
190-194.)

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 229
218. As I read State practice since the United Nations Charter came into force, it indicates that self-defence, individual
and collective, may carry the combat to the source of the aggression, whether direct or indirect. Thus in the Korean War,
1950-1953, the United Nations was not of the view that international law confined its response to North Korean aggres-
sion against the Republic of Korea to the territory of the Republic of Korea. On the contrary, United Nations forces ad-
vanced into the territory of the Democratic People's Republic of Korea; and, to this day, a sliver of territory of what had
been North Korea remains under the control of the Republic of Korea. In repeated instances since the mid-1950s, Israel
has responded to foreign support of irregular forces operating against it by striking at what it claims to have been the for-
eign bases of those forces. Clearly Israel has not been of the view that international law confined it to responsive action
within its territory or within territory under its control. In 1958, during the Algerian War, France was not of the view that
international law confined its response to support for Algerian insurgents to the territory of French Algeria. On the con-
trary, it acted against what it maintained was a rebel base at Sakiet-Sidi-Youssef in Tunisia. In 1964, the United King-
dom, in bombing Harib Fort in the territory of the Yemen Arab Republic, maintained that it acted lawfully in doing so, in
view of prior acts of aggression against the Federation of South Arabia for whose defence and foreign relations the
United Kingdom then was responsible. The United Kingdom was not of the view that it was confined to a defensive re-
sponse within the territory of the Federation. During the decade of intense American involvement in the Viet Nam War,
the United States was not of the view that international law confined its response to North Viet Nam's support for Viet-
namese insurgents to the territory of the Republic of Viet Nam. On the contrary, it carried out bombing and mining in the
territory and waters of the Democratic Republic of Viet Nam. Subsequently, the People's Republic of China, in respond-
ing to Vietnamese assistance to a faction which took power in Democratic Kampuchea – that is, to what China saw as the
Vietnamese invasion of Kampuchea – was not of the view that international law confined its response to the territory of
Kampuchea. On the contrary, China took action against the territory and armed forces of the Socialist Republic of Viet
Nam in Viet Nam. Equally, Viet Nam, in the prosecution of its suppression of Kampuchean resistance, has not been of
the view that it was restricted to the territory of Kampuchea. On the contrary, it has penetrated the territory of Thailand,
where Kampuchean resistance forces have taken refuge. In taking armed action against Iran in 1979, Iraq proffered as
one justification alleged Iranian support for subversion in Iraqi territory. But Iraq did not confine itself to repelling such
subversion within its territory. Nor has Iran confined its reaction against Iraq to its own territory; on the contrary, *372 it
has pushed into Iraqi territory. The Soviet Union and Afghanistan, in responding during the last few years to alleged as-
sistance from the territory of Pakistan to resistance forces in Afghanistan, have not been of the view that international
law confined their response to the territory of Afghanistan; there have been air raids on the territory of Pakistan.
Nicaragua itself has not confined its response to contra attacks to the Nicaraguan territory where they have occurred; it
has carried the battle to Honduran territory where contras reportedly are based. It has not confined itself to hot pursuit,
but apparently has launched pre-emptive strikes against contra bases in Honduras.
219. What matters in this context is not whether one agrees or disagrees with the legality of the cited acts of the United
Nations, Israel, France, the United Kingdom, the United States, China, Viet Nam, Iraq, the Soviet Union, Afghanistan
and Nicaragua. It is by no means suggested that all of these actions are of the same legal value; some were clearly lawful,
others clearly not. But what is significant is that these actions, whose legality has been affirmed by those carrying them
out, provide ample and significant State practice indicating that what is proposed as a limitation upon self-defence and
counter-intervention is not today applied as a rule of international law. It is not generally accepted State practice.
220. Nevertheless, if the proposed rule is not the accepted rule, should it be? Should the response of a victim of direct or
indirect aggression, and a State or States lending it support in its resistance to that aggression, be confined to the territory
of the victim? The purpose of such a principle would be to constrict conflict by reducing the actuality of and potential for
its territorial expansion. That is an appealing purpose. But the drawbacks of implementing such a principle appear to out-
weigh its attractions. For a result of confining hostilities to the territory of the victim would be to encourage victimiza-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 230
tion; potential aggressors would be the likelier to estimate that their aggression will be free of significant cost. The poten-
tial aggressor might reason that it has little to lose in launching covert aggression, as by concealed support of insurgents
operating against the government of a neighbouring State. If the aggression succeeds, the aggressor's purposes are
achieved; if not, the aggressor cannot suffer in its territory. If it has done no more than lend substantial support to foreign
insurgents, it is those insurgents alone who will take the punishment. The aggressor may lose its material investment in
the foreign insurgency but no more; it will not suffer deterrence of its forces, on its territory, with incidental damage to
its people and possessions. Thus if one attempt at foreign armed subversion fails, another can be attempted at a more pro-
pitious time. Or, indeed, the aggressor can carry on its support of a foreign insurgency continuously, relatively secure in
the ‘rule‘ of international law that it is immune from a defensive response on its territory directed at its forces. In short,
such a rule would encourage rather than deter aggression. Thus it *373 would not succeed even in its purpose of confin-
ing the potential for the territorial expansion of hostilities. International law is better left as it is, confining the scope of
permissible self-defence, individual and collective, by the provisions of the United Nations Charter and the norms of ne-
cessity and proportionality.
P. The Failure of the United States to Notify the Security Council of Measures of Self-Defence
221. Article 51 provides that:

‘Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Secur-
ity Council and shall not in any way affect the authority and responsibility of the Security Council under the present
Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and
security.‘
The United States did not notify the Security Council when, in December 1981 or early 1982, it began to lend support to
the contras. Nor did it notify the Security Council of subsequent actions, such as the attack on Nicaraguan oil facilities or
the mining of Nicaraguan ports. Does this failure of the United States import that the measures taken by it were not
‘measures taken . . . in exercise of this right of self-defence‘?
222. In my view, no such imputation need necessarily be made, for a number of reasons. In the first place, the right of
self-defence is an inherent right; the Charter provides that nothing in the present Charter shall impair that inherent right –
and that may be said to include the requirement of reporting such measures to the Security Council. Second, if the ag-
gression in question –that of Nicaragua – is covert (as it is), and the response to that aggression is covert (as it initially
was, however imperfectly), it could hardly at the same time have been reported to the Security Council. A State under-
taking covert action cannot at the same time publicly and officially report that action to the Security Council. Does it fol-
low from the reporting requirement of Article 51 that aggressors are, under the regime of the Charter, free to act covertly,
but those who defend themselves against aggression are not? That would be a bizarre result. A more reasonable interpret-
ation of Charter obligations is that, where a State commits aggression, a profound violation of its international legal ob-
ligations, and where it commits that aggression covertly, it cannot be heard to complain if a State or States acting in self-
defence to that aggression respond covertly. Ex injuria jus non oritur: no legal right can spring from a wrong.
*374 223. In the third place, it is by no means clear that, by the intent of the United Nations Charter, and the inference of
the reporting requirement, covert actions in self-defence are prohibited. Defensive measures may be overt or covert, and
have been in wars fought before and after the entry into force of the United Nations Charter. In the Korean War, United
Nations support for paramilitary and covert operations was not regarded as illegal by the United Nations. During the cov-
ert hostilities conducted by Indonesia against Malaysia in 1965, the United Kingdom not only provided direct assistance
to Malaysia but also reportedly provided covert assistance to guerrilla and insurgent forces operating against President
Sukarno's forces within Indonesia. Any such measures were not reported to the Security Council, but they would not ap-
pear to have been any the less defensive for that. Thus it appears that, in resisting aggression, covert measures have been

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 231
and legitimately may be used, which could not, by their nature, be reported to the Security Council without prejudicing
the security and effectiveness of those measures.
224. In the fourth place, a State acting in self-defence may choose to act covertly not because it doubts – or necessarily
doubts – the legality of its action but for other quite respectable reasons. In the current case, for example, it appears im-
portant to the Government of Honduras not to admit officially what is unofficially clear: that the contras have bases in
Honduras. Apparently the Government of Honduras has not wished, and does not wish, to commit itself openly and offi-
cially to hostile relations with Nicaragua, despite its forthright denunciations of Nicaraguan policies. If the United States
had proceeded overtly, and concurrently reported to the Security Council, that might have created problems which Hon-
duras would have viewed as substantial. Or, again, in the view of the United States, the possibilities of reaching a diplo-
matic accommodation with Nicaragua might have been greater if the pressures exerted upon Nicaragua were covert
rather than announced. The United States may also have acted covertly rather than overtly for reasons related to Congres-
sional oversight or for domestic political reasons. But such considerations do not necessarily suggest that United States
motivations or measures were not defensive. For all these reasons, the failure of the United States to report its measures
to the Security Council does not necessarily suggest that these measures were not defensive or that its own perception of
those measures was that they were not taken in the exercise of its right of collective self-defence.
225. It should be added that, while the United States failed to report measures it describes as taken in collective self-
defence to the Security Council, more than once in Security Council debates flowing from complaints*375 by Nicaragua
against it, the United States indicated that it was joining in defensive measures against Nicaragua's prior and continuing
acts of aggression. It did so well before Nicaragua brought the instant case to the Court. For example, as early as March
1982, shortly after heightened contra activity assisted by the United States began, Nicaragua made a complaint to the Se-
curity Council, at which Co-ordinator Ortega appeared for Nicaragua. Ambassador Kirkpatrick made a detailed and vig-
orous reply. The usual charges by Nicaragua and the United States, which are now familiar, were exchanged. The United
States indicated in the Security Council debate that it had taken certain responsive action ‘to safeguard our own security
and that of other States which are threatened by the Sandinista Government‘ (see S/PV.2335, p. 48). While that action
particularly related to overflights, the United States thus inferred that this action was in individual and collective self-
defence. Since the United States exertion of armed pressure upon Nicaragua then actually was covert, it could hardly
have been expected that the United States would have explicitly enumerated its measures in support of the contras as
measures of self-defence. It spoke in general terms.
226. In further response to a complaint of Nicaragua, Ambassador Kirkpatrick similarly stated in the Security Council on
2 April 1982 that, while it was attached to the principle of non-interference, ‘None of this means that the United States
renounces the right to defend itself, nor that we will not assist others to defend themselves . . .‘ (S/PV.2347, p. 7). The
context of this statement again suggests reference by the United States to a right of collective self-defence against
Nicaragua's actions in El Salvador. In a like vein, in the Security Council on 25 March 1983, Ambassador Kirkpatrick
maintained, in respect of Nicaragua's renewed complaint:
‘Thus it is legitimate for communist Governments to train and arm guerrillas and make war on their non-communist
neighbours. It is illegitimate for non-communists to attempt to defend themselves or for others to help them to do
so.‘ (S/PV.2423, pp. 54-55.)
Again, on 9 May 1983 in the Security Council, Ambassador Kirkpatrick asserted that:
‘The Government of Nicaragua has come again to us, demanding of the United Nations international protection
while it destabilizes its neighbours. It is claiming that a people repressed by foreign arms of a super-Power has no
right to help against that repression.‘ (S/PV.2431, p. 62.)
Once more, if in guarded terms, the United States may be said to have *376 recognized El Salvador's right to ask
for and for it to give it assistance in meeting Nicaragua's acts of aggression. Again, on 3 February 1984, the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 232
United States in the Security Council affirmed that, ‘We do intend to continue to co-operate with our friends in
Central America . . . in defence of freedom . . .‘ (S/PV.2513, p. 27). And on 30 March 1984, the United States,
after denouncing Nicaragua's continued support of guerrillas in other countries, principally El Salvador, claimed
that Nicaragua came before the Security Council ‘seeking to prevent its neighbours from defending themselves
against Nicaraguan-based efforts at the subversion and overthrow of neighbouring countries‘ (S/PV.2525, p. 41).
227. All this said, there remains, under the Charter of the United Nations, a literal violation of one of its terms. The term
in question is a procedural term; of itself it does not, and by the terms of Article 51, cannot, impair the substantive, inher-
ent right of self-defence, individual or collective. The measures of the United States in assisting El Salvador by, among
other means, applying force against Nicaragua, are not transformed from defensive into aggressive measures by the fail-
ure to report those measures to the Security Council. But there is nevertheless a violation of an important provision
which is designed to permit the Security Council to exert its supervening authority in a timely way. Even if Nicaragua,
by reason of its prior and continuing acts of covert intervention and aggression, may reasonably be deemed to be de-
barred from complaining of responsive covert measures of the United States, the international community at large, as
represented by the Security Council, has an interest in the maintenance of international peace and security which should
not be pre-empted by the failure of a State to report its defensive measures to the Security Council.
228. It must be recalled, however, that, if the legality of the actions of the United States in this case are to be adjudged
not under the United Nations Charter and the other treaties on which Nicaragua has relied, but, by reason of the multilat-
eral treaty reservation of the United States, under customary international law, customary international law knows noth-
ing of an obligation of a State to report to the Security Council. Accordingly, in the case before the Court, it may in any
event be concluded that the United States cannot be held in violation of an international legal obligation by reason of
having failed to report defensive measures to the Security Council.
229. The Court's Judgment appears to rest upon another argument in respect of reporting under Article 51 of the United
Nations Charter, namely, that, since El Salvador never claimed that it was acting in self-defence until it filed its Declara-
tion of Intervention in this case in 1984, and since the United States never claimed that it was acting in collective *377
self-defence until the pendency of these proceedings, it is too late for them, or at any rate the United States, to make such
claims now. Whether the Court is on sound factual ground in reaching this conclusion has been challenged above (paras.
186-190).
230. In any event, does the body of international law contain such a statute of limitations? By the terms of Article 51,
measures taken by Members of the United Nations in exercise of their right of individual or collective self-defence ‘shall
be immediately reported to the Security Council‘. But does it follow that, if they are not, those measures may not later be
claimed to be measures of self-defence? I do not believe so, because such a conclusion would invest a procedural provi-
sion, however important, with a determinative substantive significance which would be unwarranted. A State cannot be
deprived, and cannot deprive itself, of its inherent right of individual or collective self-defence because of its failure to
report measures taken in the exercise of that right to the Security Council.
Q. If United States Reliance on a Claim of Self-Defence Is Well Founded, it Constitutes a Complete Defence to Virtually
all Nicaraguan Claims
231. Where a State is charged with an unlawful use of force, but actually has employed force in self-defence, that State is
absolved of any breach of its international responsibility. In my view, that is the situation of the current case.
232. Thus Judge Ago, in preparation of the International Law Commission's draft articles on State responsibility, pro-
posed, under the rubric ‘Circumstances precluding wrongfulness‘, the following provision:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 233
‘Article 34. Self-defence
The wrongfulness of an act of a State not in conformity with an international obligation to another State is precluded
if the State committed the act in order to defend itself or another State against armed attack as provided for in Article
51 of the Charter of the United Nations.‘ (Yearbook of the International Law Commission, 1980, Vol. II, Part One,
p. 70.)
That this provision is a correct statement of the international law of the matter is demonstrated in Judge Ago's detailed
commentary on the article (ibid., pp. 51-70).
233. The International Law Commission itself adopted the proposals and reasoning of Judge Ago, its draft article read-
ing:
*378 ‘Article 34. Self-defence
The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if
the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.‘
(Yearbook of the International Law Commission, 1980, Vol. II, Part Two, p. 52.)
The Commission's commentary to this article in part provides:
‘(1) This article relates to self-defence only from the standpoint and in the context of the circumstances precluding
wrongfulness . . . Its sole purpose is to indicate that, when the requisite conditions for a situation of self-defence are
fulfilled, recourse by a State to the use of armed force with the specific aim of halting or repelling aggression by an-
other State cannot constitute an internationally wrongful act, despite the existence at the present time, in the Charter
of the United Nations and in customary international law, of the general prohibition on recourse to the use of force . .
. The article merely takes as its premise the existence of a general principle admitting self-defence as a definite ex-
ception, which cannot be renounced, to the general prohibition on recourse to the use of armed force, and merely
draws the inevitable inferences regarding preclusion of the wrongfulness of acts of the State involving such recourse
under the conditions that constitute a situation of self-defence.
.............................
. . . the effect of a situation of self-defence underlying the conduct adopted by the State is to suspend or negate altogeth-
er, in the particular instance concerned, the duty to observe the international obligation, which in the present case is the
general obligation to refrain from the use or threat of force in international relations. Where there is a situation of self-
defence, the objective element of the internationally wrongful act, namely the breach of the obligation not to use force, is
absent and, consequently no wrongful act can have taken place.‘ (Ibid., pp. 52, 60.)
R. The Mining of Nicaraguan Ports Was Unlawful in Regard to Third States but Lawful in Respect to Nicaragua
234. It is uncontested that Nicaraguan ports or waters were the objects of mining in 1984. Evidence refuting Nicaraguan
claims that agents of the United States Government carried out the mining has not been presented to the Court or ap-
peared in the public domain. On the contrary, there is evidence of admissions by the President of the United States and
other officials of the United States Government of the involvement of the United *379 States in the laying of small-scale
mines in the waters of Nicaraguan ports.
235. It is not clear whether the mine-laying was designed to interrupt commercial shipping or whether it may have had a
belligerent purpose, such as the interruption of shipments of arms from Communist countries to Nicaragua for trans-
shipment to El Salvadoran insurgents, or both. The mines were not designed to inflict significant damage and did not.
But they did damage the ships of a number of States. Moreover, Nicaraguan shipping and personnel incurred losses in the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 234
course of sweeping the mines, and Nicaraguan commerce was prejudiced.
236. Mines have been extensively used in warfare in the course of the twentieth century. Under certain conditions, their
use is contemplated by the Hague Convention relative to the laying of automatic submarine contact mines of 1907, to
which Nicaragua and the United States are parties. A belligerent is entitled, under international law, to take reasonable
measures (a fortiori, within the internal waters of the opposing belligerent) to restrict shipping, including third flag ship-
ping, from using the ports of its opponent. Thus the use of mines in hostilities is not of itself unlawful. That today is so
whether the hostilities are declared or undeclared; a state of war or of belligerency need not exist. If the use of force by
the United States against Nicaragua is lawful, then the use of mining as a measure of such use of force may, in principle,
be lawful, provided that its usage comports with measures taken in the exercise of the right of collective self-defence.
237. As Judge Ago pointed out in the passages from his Report to the International Law Commission quoted in paragraph
212 of this opinion, measures taken in self-defence, to be proportional, need not mirror offensive measures of the ag-
gressor. Moreover, it may be noted that, as Honduras charged in its protest note to Nicaragua of 30 June 1983, Nicaragua
apparently has mined Honduran roads with a resultant loss of life (Counter-Memorial of the United States, Ann. 61); the
mining of roads in El Salvador by Salvadoran insurgents, using land-mines and explosives reportedly provided by or
through Nicaragua, is a commonplace. The consequential casualties far exceed those caused by the mining of Nicaraguan
ports. Thus the fact that Nicaragua may have confined itself to land mining, or to assisting in the laying of land mines,
and to no more than threatening the mining of foreign ports (see the appendix, paras. 119, 136), does not of itself render
United States mining of Nicaraguan ports, as a measure in the exercise of its right of collective self-defence, dispropor-
tionate, or otherwise unlawful – as against Nicaragua.
238. However, as against third States whose shipping was damaged or whose nationals were injured by mines laid by or
on behalf of the United *380 States, the international responsibility of the United States may arise. Third States were and
are entitled to carry on commerce with Nicaragua and their ships are entitled to make use of Nicaraguan ports. If the
United States were to be justified in taking blockade-like measures against Nicaraguan ports, as by mining, it could only
be so if its mining of Nicaraguan ports were publicly and officially announced by it and if international shipping were
duly warned by it about the fact that mines would be or had been laid in specified waters. However, no such announce-
ment was made by the United States in advance of or upon the laying of mines; international shipping was not duly
warned by it in a timely, official manner. It appears that the contras did issue warnings about the mining of Nicaraguan
ports (see ‘The Mining of Nicaraguan Ports and Harbors, Hearing and Markup before the Committee on Foreign Affairs‘,
House of Representatives, Ninety-eighth Congress, Second Session, on H. Con. Res. 290, pp. 31, 40). But it is question-
able whether third States and their shipping should have been expected to take seriously such warnings from the contras.
It might be argued that warnings by the contras might mitigate the responsibility of the United States; I do not believe
that they would erase it.
239. The obligation incumbent upon a State of notifying the existence of a minefield laid by it or with its knowledge was
affirmed by the Court in the Corfu Channel case (I.C.J. Reports 1949, p. 22), not on the basis of the Hague Convention of
1907:
‘which is applicable in time of war, but on certain general and well recognized principles, namely, elementary
considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime
communication; and every State's obligation not to allow knowingly its territory to be used for acts contrary to
the rights of other States‘.
The United States did not discharge that obligation of notification vis-a-vis third States.
240. As against Nicaragua, however, a further factor comes into play, in addition to those specified above. Nicaragua

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 235
stands in violation of that most pertinent obligation which the Court set forth in the Corfu Channel case, namely, its
‘obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States‘. Since Nicaragua
has violated and continues to violate that cardinal obligation, and commenced its violation of that obligation years before
the mining and maintained that violation during the period of the mining and thereafter, Nicaragua cannot be heard to
complain, as against it, of the mining of its ports. As Judge Hudson concluded in his individual opinion in the case of Di-
version of Water from the Meuse, P.C.I.J., Series A/B, No. 70, page 77:
*381 ‘It would seem to be an important principle of equity that where two parties have assumed an identical or recip-
rocal obligation, one party which is engaged in a continuing non-performance of that obligation should not be per-
mitted to take advantage of a similar non-performance of that obligation by the other party . . . a tribunal bound by
international law ought not to shrink from applying a principle of such obvious fairness.‘
And as Judge Anzilotti in his dissenting opinion in the same case concluded:
‘I am convinced that the principle underlying this submission (inadimplenti non est adimplendum) is so just, so
equitable, so universally recognized, that it must be applied in international relations also. In any case, it is one of
these 'general principles of law recognized by civilized nations' which the Court applies in virtue of Article 38 of its
Statute.‘ (P.C.I.J., Series A/B, No. 70, p. 50.)
Dr. C. Wilfred Jenks has observed that: ‘Judge Hudson's view that this principle was applicable was shared by the major-
ity of the Court (ibid., p. 25) and by Judge Anzilotti (ibid., p. 50).‘ (The Prospects of International Adjudication, 1964, p.
326, note 30.) The Court held:
‘In these circumstances, the Court finds it difficult to admit that the Netherlands are now warranted in complaining
of the construction and operation of a lock of which they themselves set an example in the past.‘ (Diversion of Water
from the Meuse, P.C.I.J., Series A/B, No. 70, p. 25.)
S. The United States Has not Unlawfully Intervened in the Internal or External Affairs of Nicaragua
241. Relying on the same factual allegations which it has advanced against the United States in respect of the use of force
against it, Nicaragua also maintains that the United States stands in breach of its obligations under the Charter of the Or-
ganization of American States, as contained in Articles 18, 19, 20 and 21, and under customary international law. The es-
sence of its claim is that the United States has unlawfully intervened in the internal and external affairs of Nicaragua by
attempting to change the policies of its Government or the Nicaraguan Government itself.
242. In view of the comprehensive and categorical injunctions of the OAS Charter against intervention, and the much
narrower but significant rules of non-intervention of customary international law, Nicaragua's prima facie case appears to
be considerable. On analysis, however, it is inadequate, and for two reasons (in addition to those posed by the multilater-
al treaty reservation). The first of those reasons goes a long way *382 towards countering Nicaraguan contentions of un-
lawful intervention. The second vitiates them.
243. It has been shown that, in order to extract from the OAS and its Members their recognition of the Junta of National
Reconstruction in place of the Government of President Somoza, the Junta, in response to the OAS resolution of 23 June
1979, gave undertakings to the OAS and its Members to govern in accordance with specified democratic standards and
policies (see paras. 8-13 of the appendix to this opinion). It has also been shown that the Nicaraguan Government has
failed so to govern, and has so failed deliberately and wilfully, as a matter of State policy (ibid.).
244. It is accepted international law that a government is liable for the acts of successful revolutionaries – their torts and
their contracts. (Cf. the Award of William H. Taft, Sole Arbitrator, in the Tinoco case, 1923, United Nations Reports of
International Arbitral Awards, Vol. I, p. 375.) As F. K. Nielsen put it:
‘A government is liable for acts of successful revolutionists. The rule of responsibility applies to the redress for tor-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 236
tious acts as well as to contractual obligations entered into by revolutionists, who succeed in coming into control of a
state or in throwing off the authority of an established government.‘ (International Law Applied to Reclamations,
1933, p. 32.)
It is equally accepted that insurgent communities may conclude treaties (see the ‘Draft articles on the law of treaties with
commentaries‘, Report of the International Law Commission on the work of its eighteenth session, Yearbook of the In-
ternational Law Commission, 1966, Vol. II, pp. 188-189). The ‘rule . . . found to be established in the practice of States
and accepted by writers . . .‘ by Dr. Hans Blix is that:
‘A revolutionary government is competent under international law to conclude treaties on behalf of the state it pur-
ports to represent . . . provided only that it appears to wield effective authority, so that there seems to be a high de-
gree of likelihood that it will be able in fact to fulfil the obligations it is prepared to undertake . . .‘ (Treaty-Making
Power, 1960, p. 146.)
245. The Permanent Court of International Justice in its advisory opinion on Nationality Decrees Issued in Tunis and
Morocco (P.C.I.J., Series B, No. 4, p. 24) dealt with what is a matter of domestic jurisdiction in classic terms:
‘The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative
question; it depends on the development of international relations . . . it may well happen that, *383 in a matter
which . . . is not, in principle, regulated by international law, the right of a State to use its discretion is nevertheless
restricted by obligations which it may have undertaken towards other States. In such a case, jurisdiction which, in
principle, belongs solely to the State, is limited by the rules of international law.‘
There is nothing to debar a State – or a revolutionary junta entitled to bind the State – from undertaking obligations to-
wards other States in respect of matters which otherwise would be within its exclusive jurisdiction. Thus, under the Stat-
ute of the Council of Europe, every Member of the Council of Europe ‘must accept the principles of the rule of law and
of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms‘ (Art. 3). Any Member
which has seriously violated Article 3 may be suspended from its rights of representation. The history of the Council of
Europe demonstrates that these international obligations are treated as such by the Council; they may not be avoided by
pleas of domestic jurisdiction and non-intervention.
246. The Nicaraguan Junta of National Reconstruction, by the undertakings it entered into not only with the OAS but
with its Members, among them, the United States (which individually and in consideration of those undertakings treated
with the Junta as the Government of the Republic of Nicaragua), has not dissimilarly placed within the domain of
Nicaragua's international obligations its domestic governance and foreign policy to the extent of those undertakings.
Thus, what otherwise would be ‘the right‘ of Nicaragua ‘to use its discretion is nevertheless restricted by obligations‘
which it has undertaken towards those States, including the United States. It follows that, when the United States de-
mands that Nicaragua perform its undertakings given to the OAS and its Members, including the United States, to ob-
serve human rights, to enforce civil justice, to call free elections; when it demands that the Junta perform its promises of
‘a truly democratic government . . . with full guaranty of human rights‘ and ‘fundamental liberties‘ including ‘free ex-
pression, reporting‘ and trade union freedom and ‘an independent foreign policy of non-alignment‘ (appendix to this
opinion, paras. 8-11), the United States does not ‘intervene‘ in the internal or external affairs of Nicaragua. Such de-
mands are not a ‘form of interference or attempted threat against the personality of the State‘ of Nicaragua. They are leg-
ally well-grounded efforts to induce Nicaragua to perform its international obligations.
247. The Court, however, has found that, by its 1979 communications to the OAS and its Members, Nicaragua entered
into no commitments. It may be observed that that conclusion is inconsistent not only with the views of the United States
quoted in the Court's Judgment, but apparently *384 with the views of Nicaragua (appendix to this opinion, para. 53). In
my view, the commitment of Nicaragua is clear: essentially, in exchange for the OAS and its Members stripping the So-
moza Government of its legitimacy and bestowing recognition upon the Junta as the Government of Nicaragua, the Junta

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 237
extended specific pledges to the OAS and its Members which it bound itself to ‘implement‘ (appendix, paras. 8-13, espe-
cially para. 10). I am confirmed in that conclusion by the former Director of the Department of Legal Affairs of the OAS,
Dr. F. V. Garcia Amador, who has characterized the pledges of the Junta in question as constituting ‘its formal obliga-
tion‘. In his view,
‘These obligations included the installation of a democratic government to be composed of the principal groups
which had opposed the previous regime and the guarantee to respect the human rights of all Nicaraguans, without ex-
ception. The requirements imposed by the Meeting [the Seventeenth Meeting of Consultation of the Ministers of
Foreign Affairs in 1979] were not unexpected, especially in view of the Resolution of June 23, 1979 which proposed
the ’[i]mmediate and definitive replacement of the Somoza regime' in order to resolve the situation in Nicaragua.‘
(Loc. cit., p. 40.)
248. It is of course obvious that the Junta did not, by its written undertakings to the OAS and its Members, conclude an
international agreement in treaty form. But, as the Vienna Convention on the Law of Treaties recognizes (Art. 3), and as
the Permanent Court of International Justice held in the Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J.,
Series A/B, No. 53, page 71, an international commitment binding upon a State need not be made in written, still less
particularly formal, form. The question is simply, did the authority of the State concerned give an assurance, or extend an
undertaking, which, in the particular circumstances, is to be regarded as binding upon it? When a revolutionary govern-
ment, soliciting recognition, has given assurances to foreign governments, such assurances have repeatedly been treated
by foreign governments as binding the revolutionary government and its successors. I do not see why the assurances of
the Junta were not binding, made as they were, not only to the OAS but to its ‘Member States‘; assurances which the
Junta affirmed it ‘ratified‘, which it characterized as a ‘decision‘, which it intimated it took ‘in fulfillment of the Resolu-
tion of the XVII Meeting of Consultation of Ministers of Foreign Affairs of the OAS adopted on 23 June 1979‘, and
which it affirmed it ‘will immediately proceed . . . to Decree, [which] Organic Law . . . will govern the institutions of the
State‘ in pursuance of a Programme which the Government of National Reconstruction will ‘Implement‘. As the Inter-
American Commission on Human Rights recognized, the OAS deprived the Somoza Government of legitimacy. The
OAS offered recognition to the Junta on *385 bases which the Junta accepted. The Junta in reply indeed prescribed that,
immediately following its installation inside Nicaragua, ‘the Member States of the OAS . . . will proceed to recognize it
as the legitimate Government of Nicaragua‘ and that it in turn ‘will immediately proceed‘ to decree its Fundamental Stat-
ute and Organic Law and implement its Programme (appendix, para. 10). The OAS and its Members performed; the Gov-
ernment of Nicaragua did not. Not only was the creation of an international obligation clear; so was its breach.
249. It does not follow, however, that the United States is entitled to use any means whatever to persuade Nicaragua to
perform its international obligations. Under the regime of the United Nations Charter, and in contemporary customary in-
ternational law, a State is not generally entitled to use force to require another State to carry out its international legal ob-
ligations; a State may use force only in response to the lawful injunctions of the United Nations and of regional organiza-
tions acting in conformity with the Purposes and Principles of the United Nations, and in individual or collective self-
defence.
250. This brings us to the second, and dispositive, consideration. The United States claims that the measures of force
which it has exerted, directly and indirectly, against Nicaragua, are measures of collective self-defence. If that claim is
good – and, for the reasons expounded above, I believe that it is – it is a defence not only to Nicaraguan charges of the
unlawful use of force against it but of intervention against it. That is demonstrated by the terms of the OAS Charter. Art-
icles 21 and 22 provide:
‘Article 21

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 238
The American States bind themselves in their international relations not to have recourse to the use of force, except
in the case of self-defence in accordance with existing treaties or in fulfillment thereof.
Article 22
Measures adopted for the maintenance of peace and security in accordance with existing treaties do not constitute a
violation of the principles set forth in Articles 18 and 20.‘
As has been shown above, the use of force by the United States comports not only with the United Nations Charter but
with the Rio Treaty – one of the ‘existing treaties‘ to which Articles 21 and 22 of the Charter of the OAS refer. The
‘measures adopted for the maintenance of peace and security in accordance with existing treaties‘ by the United States
and El Salvador, in exercise of their inherent right of collective self-defence, thus *386 ‘do not constitute a violation of
the principles set forth in Articles 18 and 20‘ of the OAS Charter. Nor do they transgress customary international law. If
a State charged with intervention actually acted in collective self-defence, its measures are treated not as unlawful inter-
vention but as measures of justified counter-intervention or self-defence.
T. The United States Has not Violated its Obligations towards Nicaragua under the Treaty of Friendship, Commerce and
Navigation
251. If, as concluded above, the Court lacks jurisdiction to pass upon Nicaraguan complaints brought under the bilateral
Treaty of Friendship, Commerce and Navigation (this opinion, paras. 100-106), it cannot properly find that the United
States has violated obligations under that Treaty owing to Nicaragua. If it has jurisdiction, then it is appropriate to con-
sider, as the Court does, claims by Nicaragua of breach of that Treaty.
252. A principal theme of Nicaragua's claims is that the Treaty is not just a commercial treaty, but a treaty of friendship,
and that the acts of the United States in supporting the contras, assaulting oil facilities, mining Nicaraguan ports, etc., are
hardly friendly. That latter conclusion is clearly correct. At the same time, Nicaragua's counsel made no reference to pri-
or, unfriendly acts of Nicaragua, which, if friendship really is to be understood (contrary to my understanding) as the
stuff of the Treaty, may be said to have engaged Nicaragua's responsibility under it.
253. Can the adoption by the Nicaraguan Government of a national anthem, from the time of its taking power in 1979,
which contains the line, ‘We shall fight against the Yankee, enemy of humanity‘, despite representations by the United
States, be viewed as a friendly act, consistent with what Nicaragua maintains is of the essence of the Treaty? (See
Lawrence E. Harrison, ‘The Need for a 'Yankee Oppressor’‘, in Mark Falcoff and Robert Royal, editors, Crisis and Op-
portunity, U.S. Policy in Central America and the Caribbean, 1984, p. 436.) Was the anti-United States propaganda regu-
larly printed in the official Sandinista newspapers from the time of the revolution's taking power, including the 18
months when the United States was Nicaragua's principal donor of economic aid, friendly? (Ibid., p. 437.) Were the per-
vasive political attacks publicly made by Ministers of the Nicaraguan Government upon the United States from the time
the Sandinistas took power friendly? (Ibid.) Indeed, can the policies of open and ardent support for the overthrow of the
Government of El Salvador, an ally of the United States, which have been proclaimed and pursued by the Nicaraguan
Government be viewed as friendly? If the Treaty's preambular reference to ‘strengthening the bonds of peace and friend-
ship‘ is to be treated as imposing upon the Parties obligations of *387 friendly behaviour toward each other, as Nicaragua
maintains and as the Court appears in qualified measure to agree, how is it that the Court has overlooked these prior and
continuing violations of the Treaty by Nicaragua? Perhaps on the ground of its holding that there is 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‘. But even that narrower creative category, in my view, constitutes
an unwarranted and injudicious extension by the Court of the jurisdiction afforded it under a treaty of this kind.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 239
254. In any event, the conclusion that the United States is in violation of obligations towards Nicaragua under the Treaty
is unfounded, for the reason that the Treaty does not preclude a Party's application of measures ‘necessary to fulfill the
obligations of a Party for the maintenance . . . of international peace and security, or necessary to protect its essential se-
curity interests‘. It has been shown above that the United States reasonably maintains that its measures in support of El
Salvador, including its measures directed against Nicaragua, are necessary to fulfil the obligations which the United
States has under the Rio Treaty to treat an attack upon El Salvador as an attack upon the United States. Moreover, the
United States has contended that its measures are necessary to protect its essential security interests, a contention which
cannot be dismissed in view of the increasing integration of Nicaragua into the group of States led by the Soviet Union,
and Nicaragua's continuing subversion of its neighbours. If the United States is justified in invoking either the proviso re-
lating to measures for the maintenance of peace, or the proviso relating to essential security interests, either of itself
provides a sufficient defence to claims of its violation of the Treaty, however plausible such claims (such as those in re-
spect of mining and the trade embargo) may appear to be under specific provisions of the Treaty.
255. Yet the Court holds that the United States cannot be deemed to have acted (in the exertion of its pressures upon
Nicaragua) under the provision of Article XXI of the Treaty which specifies that the Treaty does not preclude measures
necessary to fulfil ‘the obligations‘ of a Party for the maintenance or restoration of international peace and security. The
Court declares:
‘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.‘
The Court so states after maintaining that measures necessary ‘to fulfil the obligations of a Party for the maintenance or
restoration of international peace and security‘ must signify measures which the State in question *388 ‘ must take in
performance of an international commitment . . .‘. But the Court fails to say why such a commitment is lacking in this
case. As shown above, the United States is bound by precisely such a commitment under the Rio Treaty.
256. It may be added that there is no principle or provision of international law or of the general principles of law which
prohibits a right from also being an obligation. A citizen may have the right to vote; in many countries, he also bears an
obligation to vote. A citizen may have the right to serve in his country's armed forces; he may also have that obligation.
A State may have the right to engage in collective self-defence if another State is a victim of armed attack; but it also
may have assumed a treaty obligation towards that State to undertake measures of collective self-defence. Indeed, the
very concept of collective security imports that States have an obligation as well as a right to assist other States in resist-
ing aggression. In the instant case, the United States has assumed such an undertaking vis-a-vis El Salvador by the terms
of the Rio Treaty. Accordingly, the United States at once both enjoys a right and bears an obligation (a conclusion sus-
tained by Dr. Garcia Amador's authoritative interpretation of the Rio Treaty; supra, para. 196). Its assistance to El Sal-
vador to repel Nicaragua's support of the armed subversion of El Salvador thus falls squarely within the terms of the Rio
Treaty and of the 1956 bilateral Treaty.
U. Responsibility for Violations of the Law of War
257. The Court has correctly concluded that international legal responsibility for violations of the law of war by the con-
tras cannot be imputed to the Government of the United States. In my view, for like reasons, international legal respons-
ibility for violations of the law of war by the insurgents in El Salvador cannot be imputed to the Government of
Nicaragua. However, Nicaragua is responsible for any violations of the law of war committed by its forces, of which
there is some evidence (appendix to this opinion, paras. 13, 28, 206, 224, and the sources there referred to).
258. Nevertheless, the Court finds that, by publishing and disseminating to the contras the manual entitled Operaciones
sicologicas en guerra de guerrillas, the United States ‘has encouraged the commission by [persons or groups of persons in

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 240
Nicaragua] of acts contrary to general principles of humanitarian law‘.
259. Customary international law does not know the delict of ‘encouragement‘. There appears to be no precedent for
holding a State responsible for breach of the Geneva Conventions for the Protection of War Victims of 1949 by reason of
its advocacy of violations of humanitarian law, though it may reasonably be maintained that a State which encourages
*389 violations of that law fails to ‘ensure respect‘ for the Geneva Conventions, as by their terms it is obliged to do.
Judge Ago pointed out in his ‘Seventh Report on State Responsibility‘ submitted to the International Law Commission
that it would be ‘unduly facile‘ to make comparisons between incitement by a sovereign State to commit an internation-
ally wrongful act and the legal concept of ‘incitement to commit an offence‘ in internal criminal law. This latter legal
concept ‘has its origin and justification in the psychological motives determining individual conduct, to which the
motives of State conduct in international relations cannot be assimilated‘. Judge Ago concluded that international law did
not ‘know of any cases in which, at the juridical level, a State has been alleged to be internationally responsible solely by
reason of such incitement‘ (Yearbook of the International Law Commission, 1978, Vol. II, Part One, p. 55, paras. 62,
63).
260. As the Court's Judgment and examination of the manual in the appendix to this opinion make clear, the manual ad-
vocates some acts in conformity with the law of war and some acts in gross violation of it. While it is not established that
such advocacy was the considered policy of the United States – on the contrary, it appears to have been the ill-considered
effort of one or a few subordinates – such advocacy is reprehensible. Whether or not the Government of the United States
may be held responsible under international law for the publication of the manual on the ground of ‘encouragement‘,
what is beyond discussion is that no government can justify official advocacy of acts in violation of the law of war. I
have voted for the relevant operative paragraph of the Judgment for that reason.
261. At the same time, such advocacy, such as it was, and indeed the numerous and heinous violations of the law of war
attributed to some of the contras of which there is evidence, but not attributed to the United States, do not transform de-
fensive measures of the United States into aggressive measures, and not only because of the absence of attribution. The
difference between the law governing the right to use force internationally, and the law governing the manner in which
such force may be exerted, is no less important because it is fundamental. In the Second World War, the Governments of
the States allied as the United Nations acted in lawful individual and collective self-defence against the aggression of the
Axis Powers. But that is not to say that no violations of the law of war were committed by United Nations forces, even if,
in comparison with the unparalleled and deliberate war crimes of Germany in particular, United Nations violations were
modest. Yet such violations of the law of war by United Nations forces did not transform their defensive struggle into an
aggressive one.
*390 V. As the State which First Used Armed Force in Contravention of the Charter, the Aggressor is Nicaragua
262. The Government of the Republic of Nicaragua has come before the Court alleging that it is the victim of unlawful
acts of the use of force and of intervention. At the same time, it has been demonstrated that (a) the Nicaraguan Govern-
ment came to power on the back of some of the very forms of foreign use of force and intervention of which it now com-
plains; (b) since coming to power, it has violated the undertakings which it gave to the OAS and its Members, some of
whom facilitated its taking power; (c) the Nicaraguan Government has itself committed acts tantamount to an armed at-
tack upon El Salvador, and engaged in multiple acts of intervention in El Salvador and other neighbouring States; and
that (d) these aggressive acts of the Nicaraguan Government were committed ‘first‘, that is, they were committed before
the United States undertook the responsive actions of which Nicaragua complains. In the light of these considerations,
the boldness of the Nicaraguan case is remarkable.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 241
263. The Definition of Aggression adopted by the General Assembly of the United Nations on 14 December 1974 not
only provides that among the acts that qualify as acts of aggression is, ‘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 . . . or its substantial
involvement therein‘ but that, ‘The first use of armed force by a State in contravention of the Charter shall constitute
prima facie evidence of an act of aggression . . .‘. This interpretation of Charter obligations is consistent rather than in-
consistent with customary international law.
264. It is plain in this case that the first international use of armed force – consisting of Nicaragua's ‘substantial involve-
ment‘ in the ‘sending‘ of armed bands to El Salvador which have carried out acts of armed force against El Salvador –
was committed by Nicaragua. Sandinista involvement with the arming, training, and command and control of the Sal-
vadoran insurgents, whose leadership has frequently been ‘sent‘ from Nicaragua to El Salvador and back, has been
shown to go back to 1979, to have reached an early peak in January 1981, and to have fluctuated since. Nicaragua's own
evidence establishes no exertions of force, indirect or direct, by the United States against Nicaragua before December
1981 or early 1982. Thus the prima facie aggressor in this case is Nicaragua.
265. It is significant that Nicaragua denies not the foregoing legal analysis but the facts on which it is based. Nicaragua
does not argue that what appears to be prima facie aggression was not aggression because its support of the insurgency in
El Salvador was in response to prior provocation or attack, or threat of imminent attack, by El Salvador. Nicaragua does
not argue that it may legally attempt to overthrow the Government of *391 El Salvador in pursuance of what some might
say is a ‘war of liberation‘. Rather, it inferentially acknowledges that, if in fact it did engage in acts of armed interven-
tion against El Salvador, tantamount to armed attack, before the United States engaged in responsive acts of armed inter-
vention against it, it, Nicaragua, and not the United States, is the aggressor. Presumably that is why Nicaragua has offi-
cially denied so strenuously in Court what its leaders, its counsel and its witnesses in effect or in terms have admitted:
that Nicaragua was substantially involved in the arming of the Salvadoran rebels, in particular for their ‘final offensive‘
of January 1981. While it may not have fully appreciated the point while it was not engaged in litigation over it, appar-
ently it now fully appreciates that, to admit its involvement as having taken place, on the scale in which it took place, and
as having taken place when it took place, is to concede that it should have lost its case.
W. The Misrepresentations of its Representatives in Court Must Prejudice Rather than Protect Nicaragua's Claims
266. How has Nicaragua sought to deal with this dilemma? By calculated, reiterated misrepresentation. On the one hand,
its Ministers – who, under international law, have authority to engage the responsibility of the State (as does the Nicara-
guan Agent) – have sworn before the Court that Nicaragua has ‘never‘ supplied arms or other material assistance to in-
surgents in El Salvador (see para. 24 of this opinion). On the other hand, it has been shown that Nicaragua has supplied
arms and other material assistance to insurgents in El Salvador (paras. 28-32, 133, 146-153 of this opinion and its ap-
pendix, paras. 28-188).
267. How does the Court deal with the misrepresentations of the representatives of a party before the Court? I regret to
say, in my view by excluding, discounting, and depreciating the facts of Nicaraguan material support of the Salvadoran
insurgency, by holding that such support as there was cannot be imputed to the Nicaraguan Government, and by conclud-
ing that, even if it were true that Nicaragua had, apparently some years ago, given support to or permitted support to be
given to the Salvadoran insurgency, such support is not tantamount to an armed attack by Nicaragua against El Salvador.
The Court goes further, by failing even to hold that the facts of Nicaraguan material support of the overthrow of the Gov-
ernment of El Salvador constitute unlawful intervention by Nicaragua in the internal affairs of El Salvador. Apparently,
in the view of the Court, it is unlawful for the United States to intervene in Nicaragua's affairs with the object of over-
throwing its Government or affecting its policies, but it is not unlawful – at any rate, it does not say it is unlawful – for

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 242
Nicaragua to intervene in El Salvador's affairs with the object of overthrowing its *392 Government or affecting its
policies – and this despite the fact that Nicaragua's intervention antedates that of the United States. The Court:
‘considers that in international law, if one State, with a view to the coercion of another State, supports and as-
sists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to in-
tervention by the one State in the internal affairs of the other . . .‘.
The Court applies that faultless conclusion to the United States (despite its legal defences to that conclusion). It holds
that the United States has committed ‘a clear breach of the principle of non-intervention‘. But the Court fails to apply this
principle of international law to Nicaragua, despite the fact that Nicaragua's support of assistance to armed bands in El
Salvador is all too obvious (and despite the fact that Nicaragua has no defence, and has offered no defence, for its inter-
vention other than falsely denying its reality). How does the Court justify this remarkable application of the law? In ef-
fect, by adopting the purport of Nicaragua's representations as its own. Thus, whatever the intention of the Court is, the
result of its Judgment is that, rather than prejudicing Nicaragua's claims, the calculated, critical misrepresentations of
Nicaragua's representatives have served to protect and promote them.
X. Nicaragua's Unclean Hands Require the Court in any Event to Reject its Claims
268. Nicaragua has not come to Court with clean hands. On the contrary, as the aggressor, indirectly responsible – but ul-
timately responsible – for large numbers of deaths and widespread destruction in El Salvador apparently much exceeding
that which Nicaragua has sustained, Nicaragua's hands are odiously unclean. Nicaragua has compounded its sins by mis-
representing them to the Court. Thus both on the grounds of its unlawful armed intervention in El Salvador, and its delib-
erately seeking to mislead the Court about the facts of that intervention through false testimony of its Ministers,
Nicaragua's claims against the United States should fail.
269. As recalled in paragraph 240 of this opinion, the Permanent Court of International Justice applied a variation of the
‘clean hands‘ doctrine in the Diversion of Water from the Meuse case. The basis for its so doing was affirmed by Judge
Anzilotti ‘in a famous statement which has never been objected to: 'The principle . . . (inadimplenti non est adimplen-
dum) is so just, so equitable, so universally recognized that it must be applied in international relations . . .’‘ (Elisabeth
Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures, 1984, pp. 16-17). That principle was developed
at length by Judge Hudson. As Judge Hudson observed in *393 reciting maxims of equity which exercised ‘great influ-
ence in the creative period of the development of Anglo-American law‘, ‘Equality is equity‘, and ‘He who seeks equity
must do equity‘. A court of equity ‘refuses relief to a plaintiff whose conduct in regard to the subject-matter of the litiga-
tion has been improper‘ (citing Halsbury's Laws of England, 2nd ed., 1934, p. 87). Judge Hudson noted that, ‘A very
similar principle was received into Roman law . . . The exceptio non adimpleti contractus . . .‘ He shows that it is the
basis of articles of the German Civil Code, and is indeed ‘a general principle‘ of law. Judge Hudson was of the view that
Belgium could not be ordered to discontinue an activity while the Netherlands was left free to continue a like activity –
an enjoinder which should have been found instructive for the current case. He held that, ‘The Court is asked to decree a
kind of specific performance of a reciprocal obligation which the demandant is not performing. It must clearly refuse to
do so.‘ (Loc. cit., pp. 77-78. And see the Court's holding, at p. 25.) Equally, in this case Nicaragua asks the Court to de-
cree a kind of specific performance of a reciprocal obligation which it is not performing, and, equally, the Court clearly
should have refused to do so.
270. The ‘clean hands‘ doctrine finds direct support not only in the Diversion of Water from the Meuse case but a meas-
ure of support in the holding of the Court in the Mavrommatis Palestine Concessions case, P.C.I.J., Series A, No. 5, page
50, where the Court held that: ‘M. Mavrommatis was bound to perform the acts which he actually did perform in order to
preserve his contracts from lapsing as they would otherwise have done.‘ (Emphasis supplied.) Still more fundamental
support is found in Judge Anzilotti's conclusion in the Legal Status of Eastern Greenland, P.C.I.J., Series A/B, No. 53,

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 243
page 95, that ‘an unlawful act cannot serve as the basis of an action at law‘. In their dissenting opinions to the Judgment
in United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, pages 53-55, 62-63, Judges Morozov and
Tarazi invoked a like principle. (The Court also gave the doctrine a degree of analogous support in the Factory at
Chorzow case, P.C.I.J., Series A, No. 9, p. 31, when it held that ‘one party cannot avail himself of the fact that the other
has not fulfilled some obligation . . . if the former party has, by some illegal act, prevented the latter from fulfilling the
obligation in question . . .‘) The principle that an unlawful action cannot serve as the basis of an action at law, according
to Dr. Cheng, ‘is generally upheld by international tribunals‘ (Bin Cheng, General Principles of Law as Applied by Inter-
national Courts and Tribunals, 1958, p. 155). Cheng cites, among other cases, the Clark Claim, 1862, where the Americ-
an Commissioner disallowed the claim on behalf of an American citizen in asking: ‘Can he be allowed, so far as the
United States are concerned, to profit by his own wrong? . . . A party who asks for redress must present himself with
clean hands . . .‘ (John Bassett Moore, History and Digest of the International Arbitrations to which the United States
Has *394 Been a Party, 1898, Vol. III, at pp. 2738, 2739). Again, in the Pelletier case, 1885, the United States Secretary
of State ‘peremptorily and immediately‘ dropped pursuit of a claim of one Pelletier against Haiti – though it had been
sustained in an arbitral award –on the ground of Pelletier's wrongdoing:
‘Ex turpi causa non oritur: by innumerable rulings under Roman common law, as held by nations holding Latin tradi-
tions, and under the common law as held in England and the United States, has this principle been applied.‘ (Foreign
Relations of the United States, 1887, p. 607.)
The Secretary of State further quoted Lord Mansfield as holding that: ‘The principle of public policy is this: ex dolo malo
non ori ur actio.‘ (At p. 607.)
271. More recently, Sir Gerald Fitzmaurice – then the Legal Adviser of the Foreign Office, shortly to become a judge of
this Court – recorded the application in the international sphere of the common law maxims: ‘He who seeks equity must
do equity‘ and ‘He who comes to equity for relief must come with clean hands‘, and concluded:
‘Thus a State which is guilty of illegal conduct may be deprived of the necessary locus standi in judicio for com-
plaining of corresponding illegalities on the part of other States, especially if these were consequential on or were
embarked upon in order to counter its own illegality – in short were provoked by it.‘ (‘The General Principles of In-
ternational Law‘, 92 Collected Courses, Academy of International Law, The Hague, (1957-II), p. 119. For further re-
cent support of the authority of the Court to apply a ‘clean hands‘ doctrine, see Oscar Schachter, ‘International Law
in the Hostage Crisis‘, American Hostages in Iran, 1985, p. 344.)
272. Nicaragua is precisely such a State which is guilty of illegal conduct. Its conduct accordingly should have been reas-
on enough for the Court to hold that Nicaragua had deprived itself of the necessary locus standi to complain of corres-
ponding illegalities on the part of the United States, especially because, if these were illegalities, they were consequential
on or were embarked upon in order to counter Nicaragua's own illegality – ‘in short were provoked by it‘.
(Signed) Stephen M. SCHWEBEL.
*395 V. FACTUAL APPENDIX
1. This appendix provides data in support of the factual premises set forth in Section III of this opinion. It concentrates
on the facts concerning allegations against Nicaragua, because those allegations are in particular controversy and have
been insufficiently investigated by the Court. Thus this appendix principally examines the facts relating to the existence,
character, duration and maintenance of material support by Nicaragua of insurgencies in neighbouring States, notably El
Salvador. To the extent that other factual premises are generally accepted, they are not developed in like detail.
A. The Sandinistas Came to Power on the Back of Some of the Very Forms of Intervention of Which They Now Com-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 244
plain
2. The gravamen of Nicaragua's complaint is that it is the victim of aggression and intervention by the United States. The
Government of the Republic of Nicaragua maintains that it is the lawful, recognized Government of that State; that that
State is entitled, under contemporary international law, to be free from the threat or use of force against its territorial in-
tegrity or political independence; and that its Government is free to pursue the policies it adopts, without foreign inter-
vention designed to affect those policies or the composition and maintenance of the Government which adopts them. It
claims that the United States is employing the threat and use of force against its political independence and that the
United States is intervening in Nicaragua in order to overthrow its Government.
3. In view of these charges, it is instructive to recall that the current Government of the Republic of Nicaragua came to
power assisted by some of the very forms of the foreign use of force and the very kinds of foreign intervention of which
it now complains. There is no ground for questioning the right of revolution within a State. But the fact is that the
Sandinista revolution did not take place only within a State; it was not a purely domestic product. On the contrary, while
essentially Nicaraguan in origins, fighting forces and popular support, the revolution which took power in Nicaragua in
1979 was, in important measure, organized, trained, armed, financed, supported and sustained by foreign States which
were antipathetic to the Government of Nicaragua then in power. That Government, dominated for decades by the So-
moza family, was recognized throughout the world as the Government of the Republic of Nicaragua. It had been in
power for a very long time. Its representatives were signatories to the Charters of the United Nations and the OAS. No
less than the current Government of the Republic of Nicaragua, it was the Government *396 entitled to the protection of
the principles and practice of international law. (The OAS ultimately arrived at the conclusion, a few weeks before the
downfall of the Somoza Government, that it was not so entitled, apparently because of its human rights violations.
Whether or not this decision was justified in international law, it was an unprecedented decision, not in conformity with
the prior practice of States.)
4. The Sandinista National Liberation Front (Frente Sandinista de Liberacion Nacional – the FSLN) was founded by
three Nicaraguans in Honduras on 23 July 1961, with the example, encouragement and support of President Fidel Castro
in evidence (see David Nolan, FSLN: The Ideology of the Sandinistas and the Nicaraguan Revolution, 1984, pp. 22-23).
Its membership during the first 15 years of its struggle was small. During the period of the long stay in Cuba of one of its
three founders and its first Secretary-General, Carlos Fonseca Amador, the main evidence of its existence appears to have
been an infrequent communique issued from Havana. The influence of the Cuba of President Fidel Castro appears to
have been no less significant in the formative years of the FSLN than it is today. By 1975, the FSLN had split into three
factions, advocating distinct strategies for seizing power. On 26 December 1978, it was announced in Havana that the
three factions of the Sandinista Front had agreed to merge their forces politically and militarily, a merger in which Pres-
ident Fidel Castro is reputed to have played a central role. In March 1979, Havana Radio announced the establishment of
the unified Sandinista directorate of nine members, three from each faction (the nine Comandantes de la Revolucion who
govern Nicaragua today).
5. Meanwhile, on the ground in Nicaragua, a charismatic new leader had suddenly emerged. On 22 August 1978,
Sandinista guerrillas led by Eden Pastora Gomez – known as ‘Commander Zero‘ – seized the National Palace in Man-
agua, taking some 1,500 hostages whom they exchanged for 58 political prisoners (including FSLN co-founder and sole
survivor, Tomas Borge Martinez, today Minister of the Interior). Opposition to the Somoza Government earlier had been
sparked as never before by the murder of the editor of La Prensa, Pedro Joaquin Chamorro, on 10 January 1978. It was
further energized by Eden Pastora's exploit, breaking out into open insurrection in September 1978. Eden Pastora, though
not one of the inner circle of nine, was named Chief of the Sandinista Army in October 1978. His substantial forces, well
armed and based in Costa Rica and operating with the tacit support of its Government, engaged Somoza's troops in in-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 245
conclusive battles. More significantly, by the summer of 1979, Sandinista guerrillas were seizing towns and battling in
the main cities in north and central Nicaragua; these relatively small guerrilla forces had the active support of the popula-
tion; assaults and uprisings were taking place at many points; and Somoza's National Guard, much of whose forces were
in the south to deal with Pastora's, had *397 difficulty in dealing with the multiplicity of recurrent Sandinista attacks
elsewhere. The United States had cut off the supply of arms, ammunition and spare parts to President Somoza's Govern-
ment two years before and it discouraged other governments from filling the gap. On 29 May, Pastora's forces launched
an offensive from Costa Rica. In the face of pressure from members of the OAS to resign, deprived of the political as
well as material support of the United States, challenged by widespread assaults in the north and centre and Pastora's of-
fensive from the south, Somoza resigned and fled the country on 17 July. His hard-pressed National Guard collapsed, and
the Junta of National Reconstruction in which the Sandinistas played such a portentous part took power.
6. Numbers of the Sandinista guerrillas who fought so tenaciously to overthrow the Somoza Government were trained in
Cuba (as was acknowledged in his testimony by Commander Carrion, Hearing of 13 September 1985). It is not to be ex-
pected that the leadership of the Sandinistas, some of whom had spent long periods in Cuba, received no training during
their stays. A number of Cuban military advisers took part in the Sandinista final offensive of mid-1979. Large quantities
of arms were shipped to the Sandinistas, at the outset primarily by Venezuela (today one of the Contadora Group) and,
later, by Cuba. These arms were mostly flown into Costa Rica, where they were distributed to Sandinista forces who
were based in Costa Rica with the support of the Costa Rican Government. An investigation subsequently conducted by
the Costa Rican National Assembly established that, from December 1978 until July 1979, there were at least 60 flights
into Costa Rica with arms, ammunition and other supplies for the Sandinista guerrillas, largely provided by Cuba.
(Asamblea Legislativa, San Jose, C.R., Comision de Asuntos Especiales, Informe sobre el Trafico de Armas, Epe. 8768.)
That report also established that, after the triumph of the Sandinistas, some of those same, undistributed arms were
shipped from Costa Rica to El Salvador. Panama also supplied some arms to the Sandinistas, and members of the
Panamanian National Guard fought with the Sandinistas. These facts are well known, essentially uncontested and recor-
ded by various sources (e.g., Shirley Christian, Nicaragua: Revolution in the Family, 1985, pp. 29, 32, 78-81, 88-97.)
Less well known are the details of the provisioning of Sandinista guerrillas who operated out of Honduras. It is clear that
they were a significant force which was tolerated by Honduras even if they did not enjoy from the Government of Hon-
duras the positive support which the Government of Costa Rica extended in the south (see the statement of the represent-
ative of Honduras at the 39th Session of the United Nations General Assembly, A/39/PV.36, p. 77, infra, para. 138). All
of these foreign operations were, like those of the United States in support of the contras, ‘covert‘. Neither Cuba nor
Venezuela nor Panama nor Costa Rica openly announced or justified their activities; there were no declarations of war;
there was no *398 reporting to the Security Council; there was not even a claim that prior aggressive acts of the Govern-
ment of Nicaragua had provoked their actions so patently designed to assist in the overthrow of the Government of
Nicaragua.
7. In his testimony, Commander Carrion estimated that, in 1979, Sandinista forces totalled somewhere between 3,000
and 4,000 armed men (Hearing of 13 September 1985). He acknowledged that about a third of that total had been based
in Costa Rica (ibid.). He depreciated the impact of those forces on the outcome of the struggle, which may or may not be
correct (Christian reports that Somoza's best troops were sent to the south to oppose the forces led by Eden Pastora).
While understandably emphasizing the achievements of the guerrillas in Nicaragua, who were supplied, he maintains, by
arms purchased on the weapons market, Commander Carrion did not say where the Sandinistas inside Nicaragua secured
the money to purchase those arms. But in any event Commander Carrion's testimony essentially comports with than con-
futes the facts, namely, that Cuba played a key role in the creation, organization, training and supply of the Sandinista re-
volution, a revolution which was also significantly aided by Venezuela, Costa Rica and Panama. Whatever one's views
about the relative merits and demerits of the Somoza and Sandinista Governments, the fact remains that the Sandinista

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 246
revolution was the beneficiary of some of the very forms of intervention for which it now feels justified in indicting the
United States. This intervention was vigorously, if covertly, supported by several Latin American Governments which
are p oponents of the principles of non-intervention. Moreover, the Organization of American States itself withdrew re-
cognition from the Nicaraguan Government, a Government still in power which was represented in the Organization, and
offered it to a Junta of which the FSLN was a leading element, in return for assurances extended by the Junta –another
act of intervention, though unarmed and disclaimed as such.
B. The New Nicaraguan Government Achieved Foreign Recognition in Exchange for International Pledges concerning
its Internal and External Policies, Commitments Which it Deliberately Has Violated
8. On 23 June 1979, the Seventeenth Meeting of Consultation of the Ministers of Foreign Affairs of the Organization of
American States adopted an extraordinary resolution which, in the words of a Report of the Inter-American Commission
on Human Rights:
‘for the first time in the history of the OAS and perhaps for the first time in the history of any international or-
ganization, deprived an incumbent government of a member state of the Organization of legitimacy, based on
the human rights violations committed by that *399 government against its own population‘ (OAS, Report on
the Situation of Human Rights in the Republic of Nicaragua, 1981, p. 2).
The resolution called for a solution to the armed conflict then raging in Nicaragua, which it described as a ‘serious prob-
lem ... exclusively within the jurisdiction of the people of Nicaragua . . .‘, ‘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 prin-
cipal 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 govern-
ment that guarantees peace, freedom and justice.‘ (OEA/Ser.F/II.17.)
9. In response to the foregoing resolution, on 12 July 1979, while President Somoza remained in office, the Junta of the
Government of National Reconstruction of Nicaragua sent to the Secretary-General of the OAS ‘and to the Ministers of
Foreign Affairs of the Member States of the Organization‘ a document containing its ‘Plan to Secure Peace‘. The Junta
wrote:
‘We have developed this Plan on the basis of the Resolution of the XVII Meeting of Consultation on June 23, 1979,
a Resolution that was historic in every sense of the word ... We are presenting to the community of nations of the
hemisphere in connection with our 'Plan to Secure Peace’ the goals that have inspired our Government ever since it
was formed ... and we wish to ratify some of them here:
I. Our firm intention to establish full observance of human rights in our country in accordance with the United Na-
tions Universal Declaration ... and the Charter of Human Rights of the OAS ...
.............................
III. Our decision to enforce civil justice in our country ...
.............................
V. The plan to call the first free elections our country has known in this century ...
It is now up to the Governments of the Hemisphere to speak, so that the solidarity with the struggle our people has
carried forward to make *400 democracy and justice possible in Nicaragua can become fully effective.
We ask that you transmit the text of this letter to the Ministers of the OAS ...‘ (Letter of 26 November 1985, emphas-
is added.)

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 247
10. The ‘Plan of the Government of National Reconstruction to Secure Peace‘ continues that
‘that hemispheric solidarity that is vital if this plan is to be carried out will come about in fulfillment of the Res-
olution of the XVII Meeting of Consultation of Ministers of Foreign Affairs of the OAS adopted on 23 June
1979‘ (emphasis added).
It sets out ‘Stages of the Plan‘, including: Somoza submits his resignation; the Government of National Reconstruction is
installed;
‘Immediately following the Government of National Reconstruction's installation inside Nicaragua, the Member
States of the OAS ... will proceed to recognize it as the legitimate Government of Nicaragua ... The Government of
National Reconstruction will immediately proceed to ... Decree the Fundamental Statute by which the Government
of National Reconstruction will be provisionally governed ... Decree the Organic Law that will govern the institu-
tions of the State ... Implement the Program of the Government of National Reconstruction...‘ (Letter of 26 Novem-
ber 1985; emphasis supplied.)
11. Attached to this letter to the OAS of the Junta was the Junta's Programme, Organic Law and Law of Guarantees. The
Programme, dated 9 July 1979, is both broad and detailed. It promises a ‘truly democratic government of justice and so-
cial progress ...‘ with ‘full guaranty of human rights‘ and ‘fundamental liberties‘ including ‘free expression, reporting
and dissemination of thought‘, trade union freedom, ‘an independent foreign policy of non-alignment‘ and a great deal
more (Counter-Memorial of the United States, Ann. 67). The Organic Law or Basic Statute (ibid., Ann. 68), enacts into
Nicaraguan law that, ‘The immediate objective and principal task of the Government of the Republic shall be to imple-
ment its programme of government published on 9 July 1979.‘ To that end, it adopts as ‘Basic Principles‘ the rights
enunciated in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural
Rights, and International Covenant on Civil and Political Rights, and proclaims ‘unrestricted freedom of oral and written
expression ...‘. Among various provisions dealing with the Junta, the Council of State, and so forth, it provides that, ‘As
soon as National reconstruction permits general elections shall be held for the purpose of appointing a National As-
sembly‘. The Statute on the Rights and Guarantees of the Nicaraguan People (Law of Guarantees) (ibid., Ann. 69) sets
*401 out a detailed statement of civil and economic rights, including abolition of the death penalty and proscription of
torture, the right to individual liberty and personal security, the right to strike, and so forth.
12. The Members of the OAS carried out their part of this international bargain, this international unilateral contract, ex-
tending promptly their individual recognition to the Government of National Reconstruction as ‘the legitimate Govern-
ment of Nicaragua‘ which the Junta expressly solicited. But the FSLN – which soon asserted and maintained exclusive
control of the Junta and subsequent formations of the Nicaraguan Government – did not carry out its part of the bargain it
concluded with the OAS and its Members. The governance of Nicaragua is hardly ‘truly democratic‘; far from human
rights and fundamental liberties being ‘fully guaranteed‘, there is substantial evidence of arbitrary arrest and arbitrary tri-
al, and indications of even graver deprivations; there is like evidence of commission of atrocities by the armed forces of
the Nicaraguan Government, particularly against Miskito and other Indians; freedom of the press and trade union free-
dom are harshly curtailed in Nicaragua and have been since the Sandinistas took power; far from acting as a non-aligned
State, Nicaragua has almost ritually joined Cuba in support of the international positions of the Soviet Union; and elec-
tions were put off until 1984 and then were held under conditions which apparently assured that the rule of the Sandinis-
tas could not be challenged whatever the popular will.
13. It would unduly extend the length of what is in any event a regrettably long opinion to provide details of these con-
clusions and complete documentation in support of them. It is recognized that there is room for difference of opinion on
the legal conclusions that may be derived from the conjunction of the OAS Resolution of 23 June 1979 and its perform-
ance by the Members of the OAS, on the one hand, and the acceptance of that resolution by the Junta and the Nicaraguan
Government's non-performance of the terms of its acceptance, on the other. The law of those questions has been treated

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 248
above. But what is beyond dispute, as a matter of fact, is that the Sandinista Front, virtually from the outset of its taking
power, violated important elements of the Junta's assurances to the OAS, and did so well before there could be any justi-
fication for such derogations on grounds of national emergency provoked by contra and United States attacks. Such viol-
ations have continued to the present day, during the ebbs and flows of contra and United States pressures; to an extent
difficult to estimate, they may have been stimulated by those pressures. Among the many sources that may be cited in
support of these conclusions are: ‘Comandante Bayardo Arce's Secret Speech before the Nicaraguan Socialist Party
(PSN)‘, published by a number of sources including Department of State Publication 9422 of March 1985; Amnesty In-
ternational, Nicaragua, The Human Rights Record, 1986; Robert S. Leiken, *402 ‘The Battle for Nicaragua‘, The New
York Review of Books, 13 March 1986, Volume XXXIII, No. 4; Shirley Christian, Nicaragua: Revolution in the Family,
1985; Douglas W. Payne, The Democratic Mask: The Consolidation of the Sandinista Revolution, 1985; David Nolan,
FSLN: The Ideology of the Sandinistas and the Nicaraguan Revolution, 1984; and Department of State, Broken Prom-
ises: Sandinista Repression of Human Rights in Nicaragua, 1984.
C. The New Nicaraguan Government Received Unprecedented Aid from the International Community, including the
United States
14. When the Sandinistas took power in July 1979, the Carter Administration extended itself to assist the Junta and estab-
lish friendly relations. After a meeting of 15 July 1979 between a State Department representative and Sandinista leaders
in which the United States promised support, Junta member Sergio Ramirez Mercado is reported to have said: ‘At this
moment I think that there is no point of disagreement between us.‘ (‘Nicaragua Rebels Say U.S. Is Ready to Back Re-
gime Led by Them‘, the New York Times, 16 July 1979, p. 1.) Secretary of State Cyrus Vance declared:
‘By extending our friendship and economic assistance, we enhance the prospects for democracy in Nicaragua. We
cannot guarantee that democracy will take hold there. But if we turn our back on Nicaragua, we can almost guarantee
that democracy will fail.‘ (The Washington Post, 28 September 1979.)
15. In the first 18 months of post-Somoza governance, the United States – as the largest single provider of economic as-
sistance to Nicaragua during that period – supplied to the Nicaraguan Government some $108 million in direct aid, in-
cluding relief supplies, particularly large quantities of food and medicine immediately after Somoza's fall, said to be val-
ued at about $25 million; it supported $262 million in loans of the Inter-American Development Bank and World Bank to
the Nicaraguan Government from mid-1979 to the end of 1980; it facilitated the renegotiation by United States banks of
large amounts of Nicaraguan debt; it offered Nicaragua the assistance of the Peace Corps; it offered military training to
Nicaraguan forces at United States bases in Panama; and President Carter amicably received the Co-ordinator of the
Junta, Daniel Ortega, at the White House. Other States and international organizations also extended generous amounts
of economic aid to the new Nicaraguan Government, the total of Western aid from July 1979 to the end of 1982 exceed-
ing $1.6 billion. The value of military, economic and other aid extended during this period to Nicaragua by Cuba and the
Soviet Union, as well as by States allied with the USSR such as the German Democratic Republic, Viet Nam, Ethiopia
and Bulgaria, is not easily calculated, but clearly it was substantial. Nicaragua also received military assistance from
Libya (the incident *403 of ‘medical supplies‘ found on Libyan aircraft which landed in Brazil en route to Nicaragua
may be recalled) as well as other sources, such as the PLO.
D. The Carter Administration Suspended Aid to Nicaragua Because of its Support of Insurgency in El Salvador, Support
Evidenced, inter alia, by Documents Captured from Salvadoran Guerrillas
16. In the case of the United States, however, a condition was attached to the rendering of aid, at the initiative of the
United States Congress: a requirement that the President certify that Nicaragua was not supporting terrorism or violence
in other countries before appropriated funds could be disbursed (Special Central American Assistance Act of 1979, Sec-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 249
tion 536 (g), Public Law 96-257, approved 31 May 1980). By September 1980, evidence of Nicaraguan aid to insurgents
in El Salvador was substantial enough to lead to representations by the United States Ambassador and to a visit in Octo-
ber to Managua of Deputy Assistant Secretary of State James Cheek. Mr. Cheek informed the Nicaraguan Government
that assistance to the Salvadoran rebels would compel the United States to terminate its aid programme and would preju-
dice United States-Nicaraguan relations; and he apparently furnished the Nicaraguan Government with some details of
the flow of arms through Nicaragua to El Salvador. Subsequently captured documents of Salvadoran insurgents which
were deposited with the Court by the United States in 1984 indicate that this demarche was taken seriously by the
Nicaraguan Government, which for a time suspended shipments of arms while, it is alleged, it endeavoured to identify
and eliminate the source of United States intelligence information.
17. In a reply to a question of the Court, the Nicaraguan Government denies that any such conversations with a State De-
partment representative took place. This appears to be one of a number of misleading statements by Nicaragua to the
Court. Among the various sources that confirm the visit to Managua of Mr. Cheek and conversations by him and the
United States Ambassador of this substance at this time with the Nicaraguan Government, are Christian, op. cit., page
194, as well as Department of State, ‘Revolution Beyond Our Borders‘, Sandinista Intervention in Central America
(Special Report 132, US Dept. of State, September 1985) (hereafter cited as ‘Revolution Beyond Our Borders ‘), pages
20-21, which describes these meetings of Mr. Cheek with Co-ordinator Ortega, Foreign Minister D'Escoto and Com-
manders Arce, Wheelock and Humberto Ortega.
18. The captured documents referred to, which were ‘recovered from *404 the Communist Party of El Salvador in
November 1980 and from the Peoples' Revolutionary Army (ERP) in January 1981‘ (Ann. 50 to the Counter-Memorial
[on jurisdiction and admissibility] of the United States, p. 2), were published by the Department of State under the title,
Communist Interference in El Salvador: Documents Demonstrating Communist Support of the Salvadoran Insurgency,
23 February 1981. These documents, if genuine, not only confirm Mr. Cheek's conversations in Managua. They also
demonstrate the Salvadoran insurgents' appreciation of:
‘a security problem beginning with a meeting ... with one James Cheek ... he manifested knowledge about ship-
ments via land through Nicaragua in small vehicles and ... attempts by sea. They raise the question of possible
bad management of the information on the part of personnel working on this ... they are going to carry out an in-
vestigation ... and it seems very strange to us that a gringo official would come ... to practically warn about a
case such as this. If it were true that they have detected something concrete, it is logical that they would hit us ...
not that they would warn us ...‘ (Doc. J, p. 94.)
(It may be noted that the provision of such sensitive intelligence data to Nicaragua provoked Congressional criticism. See
the statement of Congressman C. W. Bill Young reproduced in the Nicaraguan Memorial, Ann. E, Att. 1, p. 40.)
19. The authenticity of these captured documents, and, more, the accuracy of a State Department White Paper construing
them (see Ann. 50, loc. cit.), generated controversy in the press soon after their publication in 1981. The United States
Government refuted that criticism in detail and maintains that the documents are authentic (Department of State,
‘Response to Stories Published in the Wall Street Journal and the Washington Post about Special Report No. 80‘, 17 June
1981, and ‘Revolution Beyond OurBorders‘, p. 5, note 2, which maintains that: ‘The authenticity of these documents ...
have since been corroborated by new intelligence sources and defectors‘). That conclusion is sustained by informed crit-
ics and supporters alike of United States Administration policy towards Nicaragua. Christopher Dickey, whose critical
book, With the Contras: A Reporter in the Wilds of Nicaragua, 1985, evidences an intimate knowledge of elements of the
facts at issue in the current case, concludes that ‘the source documents themselves appear very much in line with what
Salvadoran insurgent leaders and representatives as well as Sandinistas told me privately in Managua in October 1983
and May 1984‘ and treats the documents as genuine (pp. 281-282, 73-74). Former United States Ambassador to El Sal-
vador Robert E. White, a vigorous critic of the policies of President Reagan towards Nicaragua and El Salvador, has de-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 250
clared the captured documents to be genuine (infra, para. 151). A supporter of United States policy towards Nicaragua,
who has produced a detailed, documented study of the extent of what he views as aggression by the Nicaraguan*405
Government against El Salvador, Honduras and Costa Rica, treats the captured documents as genuine and draws much il-
luminating detail from them showing the pervasive involvement of the Nicaraguan Government in the arming, supply,
training and direction of the insurgency in El Salvador (Robert F. Turner, Nicaragua v. United States: A Look at the
Facts, in press. Mr. Turner's study is stated to be based in part upon research done under contract to the Department of
State and indicates access to diplomatic communications). Turner's study contains a wealth of additional factual data in
support of his conclusions, among them that the Nicaraguan Government has played and continues to play the pivotal
role in sustaining the Salvadoran insurgency, acting as the chief conduit for funds, ammunition, and supplies as well as a
training and command centre.
20. In the written and oral proceedings, Nicaragua did not refute or specifically refer to these captured documents. The
Judgment of the Court appears to take no account of them. They provide graphic and substantial support for United
States allegations concerning Nicaraguan, Cuban, Vietnamese, Ethiopian and other provision of arms and ammunition in
great quantities to the Salvadoran insurgents, ‘which all would pass through Nicaragua‘ (doc. G, p. 8). The documents
describe the role of President Fidel Castro in unifying the Salvadoran insurgency (doc. A); recount the ‘magnificent‘ sup-
port by the ‘socialist camp‘ of that insurgency (doc. C, p. 2); record assurances by the Sandinista leadership of provision
of headquarters in Nicaragua for the Salvadoran insurgency ‘with all measures of security‘ (doc. D, p. 4); record as well
the assumption by Nicaragua of ‘the cause of E.S. [El Salvador] as its own‘ (doc. D, p. 5); provide details about Viet-
namese, Ethiopian and other ‘socialist‘ assurances of shipment of many tons of arms to the Salvadoran insurgency (docs.
E, F); show that Nicaragua agreed to absorb arms of Communist manufacture and to provide the Salvadoran insurgents
with Westernmanufactured arms from its own stocks in their place (doc. G); recount that 130 tons of arms and other ma-
terial (a fraction of the total) had arrived in Nicaragua for shipment to El Salvador (doc. I); indicate suspension of
Nicaraguan weapons deliveries to El Salvador in September 1980 in response to United States protests (doc. J); and re-
cord provision by the Sandinista National Liberation Front to the Salvadoran guerrillas of a schedule for resumed ship-
ments of arms (doc. K). As the documents recount:
‘It is impressive how all countries in the socialist bloc fully committed themselves to meet our every request and
some have even doubled their promised aid. This is the first revolution in Latin *406 America to which they have
committed themselves unconditionally with assistance before the seizure of power.‘ (Doc. K, p. 4; see the translation
provided in ‘Revolution Beyond Our Borders‘, at p. 7, as well as other references therein to these captured docu-
ments, at pp. 5-7.)
These documents are striking in their demonstration of the influence of the Nicaraguan Government over the Salvadoran
insurgency, not only in matters of provision of arms but of strategy and tactics (see docs. K, R). As will be shown below,
the contents of these documents have received corroboration from a number of sources.
21. The aid agreement between the United States and Nicaragua was not signed until 17 October 1980, although much of
the funds had been disbursed by that time. The Nicaraguan Government claimed in the Cheek conversations which took
place before signature that it was not sending arms to the insurgents in El Salvador. On 12 September 1980, in an effort
to maintain good relations with the Nicaraguan Government, to give it the benefit of its growing doubts, and despite the
disturbing intelligence reports which were the basis of the Cheek mission, President Carter certified to Congress that
there was not evidence of aid and support by the Nicaraguan Government of terrorism and violence in other countries.
This decision is said to have been taken on the basis that the information then available was not ‘conclusive‘ in respect of
Nicaraguan Government involvement in terrorist activities (see Presidential Determination No. 80-26 of 12 September
1980, reproduced in the Weekly Compilation of Presidential Documents, Vol. 16, No. 37, p. 1712, quoted in its letter to
the Court of 26 November 1985 and ‘Revolution Beyond Our Borders‘, op. cit., p. 20). But, contrary to the inference

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 251
drawn by Nicaragua in the letter of 26 November 1985, to which the Court's Judgment appears to give credence, this
does not convey the true picture of ‘the views of the United States Government at the end of 1980 concerning supposed
support by Nicaragua to El Salvadoran opposition forces ...‘ (emphasis added). ‘Not until late December or early Janu-
ary‘, Shirley Christian reports then United States Ambassador Pezzullo informed her, ‘did the United States get a fuller
picture of how much Nicaragua was helping the Salvadoran guerrillas‘ (op. cit., p. 194).
22. In January 1981, in the light of that fuller picture, the Carter Administration suspended certain aid deliveries. As the
New York Times put it:
‘The United States suspended payments to Nicaragua from a $75 million economic support fund last week because
of evidence that left-wing guerrillas in El Salvador have been supplied with arms from Nicaragua, an official source
said today.‘ (‘The U.S. Halts Nicaragua Aid Over Help for Guerrillas‘, the New York Times, 23 January 1981, p.
A3.)
*407 Nevertheless, the withholding of arms shipments from Nicaragua to Salvadoran insurgents in September 1980
served the Sandinistas well, for it enabled them to extract the great bulk of the economic aid which had been authorized
by the United States Congress. Their resumption of arms shipments on a very large scale for the Salvadoran insurgents'
‘final offensive‘ lost them a remaining tranche but, more important, prejudiced the possibilities of future direct United
States aid (which had already been programmed) as well as United States support in multilateral institutions. It was later
to prove far more broadly prejudicial still.
E. The Reagan Administration Terminated Aid to the Nicaraguan Government while Waiving the Latter's Obligation to
Return Aid already Extended in the Hope that its Support for Foreign Insurgencies Would Cease; Subsequently, it Twice
Officially Offered to Resume Aid if Nicaragua Would Stop Supporting Insurgency in El Salvador, Offers Which Were
not Accepted
23. In view of the evidence of Nicaraguan support for the Salvadoran insurgency, President Reagan made a determina-
tion on 1 April 1981 terminating assistance to Nicaragua. The statement then issued by the Department of State neverthe-
less declared:
‘This Administration has made strong representations to the Nicaraguans to cease military support to the Salvadoran
guerrillas. Their response has been positive. We have no hard evidence of arms movements through Nicaragua dur-
ing the past few weeks, and propaganda and some other support activities have been curtailed. We remain concerned
however that some arms traffic may be continuing and that other support very probably continues.
Important U.S. security interests are at stake in the region. We want to encourage a continuation of recent favorable
trends with regard to Nicaraguan support for the Salvadoran guerrillas. We also want to continue to assist moderate
forces in Nicaragua which are resisting Marxist domination, working toward a democratic alternative and keeping
alive the private sector.
Recognizing the Nicaraguan response to date and taking into account our national security interests in the region the
President has decided to use his special authority under section 614 (a) (1) of the FAA to maintain outstanding fully
disbursed ESF loans to the Government of Nicaragua – that is, not to call for their immediate repayment.
We are considering a resumption of P.L.-480 and later development assistance if the favorable trends there continue.
We do not rule out the eventual resumption of ESF assistance at a later time should the *408 situation in Nicaragua
improve.‘ (Documents on American Foreign Policy, 1981, doc. 687, p. 1298.)
That is to say, in view of the fact that the Nicaraguan Government had made a ‘positive response‘ to United States rep-
resentations, apparently by again suspending arms shipments to the Salvadoran guerrillas, President Reagan waived the
provision of United States law that required immediate repayment of economic support loans made to Nicaragua because
of the violation of the conditions of their extension, and he held out the possibility of resumed economic assistance to

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 252
Nicaragua should recent favourable trends continue. This hardly appears to have been the policy determination of a Pres-
ident who, from the outset, as Nicaragua claims, had designed the pretext of Nicaraguan support of Salvadoran guerrillas
in order to justify overthrow of the Nicaraguan Government.
24. Thus, at that time, and subsequently, the United States informed Nicaragua that it would be prepared to resume aid if
the Nicaraguan Government stopped its efforts to subvert other States in the region and limited its already exceptional
military build-up. On 12 August 1981, then Assistant Secretary of State Thomas O. Enders informed the most senior
leaders of the Nicaraguan Government in Managua that the United States would be prepared to resume aid to it if it
would cease support of insurgency in neighbouring States. The offer was not accepted.
F. The Reagan Administration Made Clear to the Nicaraguan Government in 1981 that it Regarded the Sandinista Re-
volution ‘as Irreversible‘; its Sole Condition for Co-existence Was Stopping the Flow of Arms to El Salvador
25. The Nicaraguan Government has provided on its own initiative a record of one of several conversations with Mr. En-
ders in Managua in August 1981, and its own interpretation of that important exchange (letter of 26 November 1985). It
may be useful initially to quote the impressions of that exchange received by the then Ambassador of Nicaragua in
Washington:
‘During my first days in my new post, I received the impression that the United States would not tolerate a leftist
military victory in El Salvador. In addition, some remarks by the U.S. Ambassador to Nicaragua, Lawrence Pezzullo,
hammered persistently on my mind. Ambassador Pezzullo, I venture to say, had developed sincere feelings of sym-
pathy for my country. It was one day in the spring of 1981 – some time after the failure of the Salvadoran guerrillas'
January 'final offensive’ – when he pleaded, amicably and candidly, that the government in Managua refrain from
aiding insurrection in the neighboring nations. The Ambassador stressed that this was important for Nicaragua's own
wellbeing.
*409 In August of 1981, the Assistant Secretary of State for Inter-American Affairs, Thomas Enders, met with my
superiors in Managua, at the highest level. His message was clear: in exchange for non-exportation of insurrection
and a reduction in Nicaragua's armed forces, the United States pledged to support Nicaragua through mutual regional
security arrangements as well as continuing economic aid. His government did not intend to interfere in our internal
affairs. However, 'you should realize that if you behave in a totalitarian fashion, your neighbors might see you as po-
tential aggressors'. My perception was that, despite its peremptory nature, the U.S. position vis-a-vis Nicaragua was
defined by Mr. Enders with frankness, but also with respect for Nicaragua's right to choose its own destiny. He in-
dicated that there was a fork in the road: one way leading to friendship between the United States and Nicaragua; the
other to separation between the two countries. Maybe, he said, Nicaragua had already advanced along this second
route. However, it was not too late to discuss an understanding.‘ (Arturo J. Cruz, ‘Nicaragua's Imperiled Revolu-
tion‘, Foreign Affairs, Summer 1983, pp. 1041-1042.)
26. Another, less diplomatic perspective on the Enders' conversation is given by Eden Pastora:
‘When Daniel Ortega told Fidel Castro of the FSLN talks with Thomas Enders, ... he said that Enders had confided
privately that as a U.S. representative, he had come to Managua not to defend the rights of the democratic opposi-
tion, but rather to insist that the FSLN meddling in El Salvador must stop ... Enders had come to Nicaragua as Pres-
ident Reagan's representative to say that Nicaragua had been given up as lost – that it was the problem of the Demo-
cratic Party in the U.S., and that the Republicans' problem was not Nicaragua, but El Salvador, which they had no in-
tention of losing. Furthermore, Enders had told Daniel that the Nicaraguans could do whatever they wished – that
they could impose communism, they could take over La Prensa, they could expropriate private property, they could
suit themselves – but they must not continue meddling in El Salvador, dragging Nicaragua into an East-West con-
frontation, and if they continued along these lines, Enders said, they would be smashed.‘ (Eden Pastora Gomez,

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 253
‘Nicaragua 1983-1985: Two Years Struggle Against Soviet Intervention‘, Journal of Contemporary Studies, Spring/
Summer 1985, pp. 10-11.)
So much again for the central Nicaraguan contention in this case that the object of the United States from the outset of
the Reagan Administration has been the overthrow of the Government of Nicaragua! Whether or not *410 Eden Pastora's
recollection of what Daniel Ortega told Fidel Castro about what Mr. Enders said privately to Commander Ortega is ac-
curate, the record of the Ortega/Enders conversation supplied by Nicaragua confirms the essential point. The second sen-
tence of Mr. Enders' exchange with Commander Ortega quotes Mr. Enders as flatly declaring that the United States sees
the Sandinista revolution ‘as irreversible‘ (see below paras. 156-168, especially para. 157).
G. Before this Court, Representatives of the Government of Nicaragua Have Maintained that the Nicaraguan Government
Has ‘Never‘ Supplied Arms or Other Material Assistance to Insurgents in El Salvador, Has ‘Never‘ Maintained Salvador-
an Command and Control Facilities on Nicaraguan Territory and ‘Never‘ Permitted its Territory to Be Used for Training
of Salvadoran Insurgents
27. As observed in the body of this opinion, the Nicaraguan Government has repeatedly, comprehensively and categoric-
ally denied that it, as a Government, has sent arms and other material support to the insurgency in El Salvador, or suppor-
ted insurgency in other countries of Central America. The denials contained in testimony given to the Court, and in offi-
cial communications of the Nicaraguan Government to the Court, are of the greatest importance to these proceedings.
These leading examples of Nicaragua's multiple, unqualified denials will suffice:
(a) The affidavit of Miguel D'Escoto Brockmann, Foreign Minister of Nicaragua, of 21 April 1984, annexed
to the Nicaraguan Application and subsequently repeatedly reaffirmed in Court by the Nicaraguan Govern-
ment, attests:
‘I am aware of the allegations made by the government of the United States that my government is sending arms,
ammunition, communications equipment and medical supplies to rebels conducting a civil war against the govern-
ment of El Salvador. Such allegations are false, and constitute nothing more than a pretext for the U.S. to continue
its unlawful military and paramilitary activities against Nicaragua intended to overthrow my government. 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.‘ (Nicaraguan Application, Ann. B.)
(b) In sworn testimony before the Court, Commander Carrion declared: ‘My Government has never had a
policy of sending arms to opposition forces in Central America.‘ (Hearing of 13 September 1985.)
*411 (c) In answer to questions, the Agent of Nicaragua affirmed in a letter to the Registrar of 26 November
1985:
‘As the Government of Nicaragua has consistently stated, it has never supplied arms or other material assistance to
insurgents in El Salvador or sanctioned the use of its territory for such purpose, it has never permitted Salvadoran in-
surgents to establish a headquarters or operations base or command and control facility in Nicaraguan territory and
has never permitted its territory to be used for training of Salvadoran insurgents.‘
H. The Nicaraguan Government, Despite its Denials, in Fact Has Acted as the Principal Conduit for the Provision of
Arms and Munitions to the Salvadoran Insurgents from 1979 to the Present Day; Command and Control of the Salvador-
an Insurgency Has Been Exercised from Nicaraguan Territory with the Co-operation of the Cuban and Nicaraguan Gov-
ernments; Training of Salvadoran Insurgents Has Been Carried out in Cuba and Nicaragua; the Salvadoran Insurgents'
Radio Station at One Time Operated from Nicaraguan Territory; and Nicaraguan Political and Diplomatic Support of the
Salvadoran Insurgency Has Been Ardent, Open and Sustained
28. Evidence tending to show, and in some cases showing, material support by the Nicaraguan Government of the insur-
gency in El Salvador is substantial. No one bit of it, of itself, is conclusive. In view of the situation obtaining in

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 254
Nicaragua, that is not surprising. Nicaragua is not democratically governed; the opposition is not in control of the Con-
gress; there is no Select Committee on Intelligence, no Boland Amendment restricting the objects of Nicaraguan activity
in El Salvador, no Freedom of Information Act which obliges the Nicaraguan Government to release reports of its activit-
ies, no uncensored press which prints reports revealing information which the Government wishes to conceal. The
Nicaraguan Government does not need to adopt legislation authorizing covert activities in El Salvador and other Central
American States; and far from issuing a public Executive Order prohibiting political assassination, there are charges that
it has issued a secret Order authorizing political assassination, which is alleged to have been implemented hundreds of
times. (See, Inside the Sandinista Regime: A Special Investigator's Perspective, published by the Department of State,
1985. It contains detailed allegations by Alvaro Jose Baldizon Aviles, until recently Lieutenant, Nicaraguan Ministry of
the Interior, attached to the Ministry's Special Investigations Commission, who defected from Nicaragua carrying al-
legedly official documents which support his allegations, the most vital of which is reproduced in the foregoing publica-
tion. An article about Mr. Baldizon Aviles' charges was published in the Washington Post, 19 September 1985, p. A26.
See also Robert S. Leiken's article, loc. cit., p. 52, which reports his interview with *412 Baldizon and the comments on
Baldizon's charges by the director of Americas Watch. The assassination on 17 November 1980 by Sandinista agents of
Jorge Salazar, Acting President of the Nicaraguan Superior Council of Private Enterprise (COSEP), has been charged by
COSEP. See The Nicaraguan Revolutionary Process, a study made by COSEP in 1983, revised, translated and updated
by the Nicaraguan Information Centre in January, 1985, pp. 3-4. That charge is accepted as accurate by informed stu-
dents of the Nicaraguan revolution. See Christian, op. cit., pp. 181-184, and Dickey, op. cit., pp. 80-82.) In the nature of
the governmental system in power in Nicaragua, and in view of the many advisers occupying positions in Nicaraguan
Government ministries who come from foreign totalitarian regimes, it may be expected that evidence of acts which its
Government has reason to conceal will not easily come to light. Nevertheless, despite these considerations, evidence of
what the Nicaraguan Government denies is considerable – and sufficient.
1. Admissions by authorities of the Nicaraguan Government
29. The Court rightly gives particular weight to admissions of fact by a party to a case which are contrary to its interests.
It is the more striking that, in this case, a Party which has denied a critical fact so categorically and comprehensively as
Nicaragua has nevertheless made a number of significant admissions. While those admissions do not take the form of
acts of Congress, signed by the President and printed in Nicaragua's equivalent of the Congressional Record, they are, in
the governing circumstances, more than suggestive.
30. The President of Nicaragua, Commander Daniel Ortega Saavedra, granted an interview in January 1985 to a distin-
guished Peruvian novelist, Mario Vargas Llosa, who subsequently published an account of his month's stay and many in-
terviews in and conclusions about Nicaragua, ‘In Nicaragua‘, the New York Times Magazine, 28 April 1985. In the inter-
view, President Ortega is quoted as assuring Mr. Vargas that ‘our internal tensions will be resolved. That's not the hard
part.‘ President Ortega continued:
‘The hard part is negotiation with the United States. There's the root of all our problems. President Reagan has not
renounced the idea of destroying us. He seems to negotiate, but then he pulls back ... He wants us to surrender.
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 only 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 *413 resources into war when we desperately need them for development.‘ (At p. 17; emphasis sup-
plied.)
Now President Ortega was not writing a State paper, he was talking – just as President Reagan, at his famous press con-
ference, did not write a State paper about the modalities of Nicaragua's adjustment of its policies but spoke of

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 255
Nicaragua's saying ‘uncle‘. That was a revealing remark; no less is President Ortega's. And what does President Ortega
say? He is quoted – not reported, but quoted – by a writer of high reputation in a newspaper of unexcelled reputation as
stating the following:
‘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 only one thing: ... that the United States
stop arming and financing ... the gangs that kill our people ...‘
Now President Ortega would not speak of stopping the movement of military aid through Nicaragua to El Salvador if
such movement were not in progress. One cannot stop what has not started. One cannot stop what does not continue. The
United States indubitably is arming the contras; that must stop; ‘in return‘, President Ortega says, Nicaragua is willing
‘to stop‘ the movement of its military aid through Nicaragua to El Salvador. How truly all that rings!
31. Of course, if one is intent on minimizing any admissions of Nicaragua, while maximizing admissions of the United
States, one may find reason to minimize this admission. President Ortega and Mr. Vargas spoke in Spanish; the whole of
Vargas' article is translated from Spanish. One may suggest that there was an error in translation. Such a speculation,
however, is laid to rest by President Ortega's words in the original Spanish, which were:
‘Lo dificil es la negociacion con Estados Unidos. De alli viene todo el problema. El presidente Reagan no renuncia a
acabar con nosotros y, por eso, aparenta negociar, pero luego da marcha atras, como en Manzanillo. No quiere ne-
gociacion. Quiere que nos rindamos. Hemos dicho que estamos dispuestos a sacar a los cubanos, sovieticos y demas
asesores; a suspender todo transito por nuestro territorio de ayuda militar u otra a los salvadorenos, bajo verification
internacional. Hemos dicho que lo unico que pedimos es que no nos agredan y que Estados Unidos no arme y fin-
ancie, jactandose de ello ante el mundo, a las bandas que entran a matarnos, a quemar las cosechas, y que nos ob-
ligan a distraer enormes recursos humanos y *414 economicos que nos hacen una falta angustiosa para el desarrollo.‘
(This Spanish text of the quotation of President Ortega's original words is found in a Spanish version of the Vargas
Llosa article in Madrid's ABC, 12 May 1985, under the title ‘El Sandinista, Tranquilo‘; emphasis supplied.)
Or one may suggest that, since the quotation is printed in a newspaper, one must assume that it may be in error. Or one
may suggest that, since the writer is a novelist, he made it up. Or one may suggest that, if President Ortega said it, he did
not mean it.
32. But, if one is interested in an objective assessment of what the Chief of a State is authoritatively quoted as having
said, then it will not be possible to pass off this admission of President Ortega. Moreover, if this quotation as translated
into English is in any measure inaccurate, there is every reason to conclude that the Nicaraguan Government would have
required the publication of a correction, which, by standing policy of the New York Times, would promptly have been
published. No such correction has been requested or published (letter of 31 December 1985 of Martin Arnold, Deputy
Editor, the New York Times Magazine, to me). As the representative of El Salvador, who read out the quoted remarks of
President Ortega, declared to the General Assembly of the United Nations, ‘This is an eloquent confession‘ (A/40/PV.90,
p. 83). President Ortega's words in their original Spanish are even more inculpatory, admitting as they do that Nicaragua
could ‘suspend‘ the provision of arms to the Salvadoran insurgents. The quotations of Nicaraguan spokesmen which fol-
low may reasonably be appraised in the light of President Ortega's admission, in 1985, that military aid is moving
through Nicaragua to El Salvador – a process which, he admits, Nicaragua has not stopped but could.
33. Those quotations will be presented in chronological order. But first, it is of interest to note that, as recently as April
1986, President Ortega made a second public statement which reinforces the thrust of that just quoted. In an article by
Clifford Krauss in the Wall Street Journal of 18 April 1986, at page 2, there is a report of an interview which President
Ortega granted in Managua on 16 April 1986 in which he declared that Nicaragua is ready to negotiate and sign with the
United States a mutual security treaty that would convert Central America into ‘a neutral zone‘ free of East-West com-
petition. The article continues:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 256
‘In proposing a bilateral treaty with the U.S., Mr. Ortega said Nicaragua is ready to agree to a withdrawal of all for-
eign military advisors and a halt to aid for 'irregular forces' in the region. In exchange, he said, the U.S. would have
to end its military pressure on Nicaragua and cease military maneuvers in the region. He called the proposed treaty 'a
reciprocal arrangement’.‘
*415 It will be observed that President Ortega affirms that Nicaragua is ready to agree to a halt in aid for irregular forces
in the region, and that this agreement on Nicaragua's part would be in exchange for the ending of United States military
pressure upon Nicaragua. This would be what President Ortega called a ‘reciprocal arrangement‘. The ineluctable im-
putation is that Nicaragua is prepared to stop its continuing aid to irregular forces if the United States is prepared to stop
its exertion of military pressure upon Nicaragua. If the Court is correct in concluding that there cannot be imputed to
Nicaragua the sending of military aid to Salvadoran irregulars at any time, and certainly not after early 1981, how is it
that President Ortega in 1985 and 1986 has publicly made statements so at odds with the Court's conclusion? Who may
be presumed to be better informed on this question, President Ortega or the Court?
34. In 1969, the FSLN published the first detailed statement of its goals. The Sandinistas declared that they stood for 15
policies, including: ‘14. Struggle for a 'true union of the Central American peoples within one country,’ beginning with
support for national liberation movements in neighboring states.‘ (Quoted in Nolan, loc. cit., p. 37.)
35. In September 1979, shortly after the Sandinistas took power, the National Directorate of the FSLN called an as-
sembly to enable ‘intermediate leadership cadres‘ to directly exchange views with the leadership. As a result of those ex-
changes, general guidelines were drawn up and a report of the three-day meeting – the so-called ‘72-hour Document‘ –
was circulated among Sandinista membership. The report is of interest. For example, as early as September 1979, when
the United States was sending Nicaragua more aid than any other Western State, the report states that
‘the real enemy that we would have to confront was the imperialist power of the United States, the treachery and
demagoguery of the reactionary local bourgeoisie being less important‘.
As early as September 1979, when more elements of pluralism remained than are vital today, the ‘72-hour Document‘ as-
serted: ‘We can assert without fear of error that Sandinism represents the sole domestic force.‘ Of particular interest to
the large build-up of Nicaraguan armed forces then beginning is the report's conclusion that ‘the defeated National Guard
cannot possibly organize an attack on us for the time being‘ and that none of Nicaragua's neighbours would dare to back
the National Guard; the report indicated that there was no need for large armed forces to deal with the non-existent pro-
spect of armed counter-revolution. As to foreign policy, the 72-hour Document declares:
*416 ‘The foreign policy of the Sandinist People's Revolution is based on ... the principle of revolutionary interna-
tionalism. The goal of the FSLN's foreign policy is to consolidate the Nicaraguan revolution, because this will help
strengthen the Central American, Latin American and worldwide revolution ... our general approach to foreign
policy [is to] ... help further the struggles of Latin American nations against fascist dictatorships and for democracy
and national liberation . . . We should underscore the need to counteract the aggressive policy of the military dictat-
orships in Guatemala and El Salvador by taking proper advantage of the internal frictions there, while stressing our
differences with Honduras and the friendly conduct of Costa Rica and Panama.‘ (‘Analysis of the Situation and
Tasks of the Sandinista People's Revolution‘, 5 October 1979. English translation contained in unclassified Depart-
ment of State airgram A-103 from Managua of 26 December 1979.)
36. In January 1980, Minister of the Interior Tomas Borge, at a ceremony in Havana marking the 21st anniversary of the
Cuban revolution, declared:
‘Nicaragua must express its solidarity with the other Latin American peoples struggling against or defeating imperi-
alism or trying to shake off the yoke of foreign masters ... That is what we must learn from our Cuban brothers, who,
despite their limitations and their poverty, have been generous with our people. Tomorrow, if necessary, we may
have to take the food out of our mouths to express solidarity with other Latin American brothers with the same affec-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 257
tion, firmness, and solidarity that the Cubans have shown.‘ (Panamanian News Agency ACAN, 4 January 1980.)
37. In June 1980, Commander Borge, addressing a North Korean audience, declared that ‘the Nicaraguan revolutionaries
will not be content until the imperialists have been overthrown in all parts of the world ...‘ (FBIS, North Korea, 12 June
1980, p. D16).
38. On 10 January 1981, with the launching of the ‘final offensive‘ by Salvadoran guerrillas to overthrow the Govern-
ment of El Salvador, the guerrillas, broadcasting from a clandestine radio station located in Nicaragua, proclaimed that
‘the decisive hour has come ... for the seizure of power‘ (FMLN-FDR, El Salvador on the Threshhold of a Democratic
Revolutionary Victory, pp. 82-83). Radio Managua took up the call, broadcasting:
‘A few hours after the FMLN General Command ordered a final offensive to defeat the regime established by the
military-Christian Democratic junta, the first victories in the combat waged by our forces began being reported.‘
(‘Revolution Beyond Our Borders‘, p. 9.)
*417 39. A few days before, Nicaraguan Foreign Minister D'Escoto had had the following broadcast exchange:
‘[Question] Mr. Foreign Minister, could you tell us something about the rumors that Nicaraguan combatants are par-
ticipating in the Salvadoran people's liberation struggle?
[Answer] I am not in a position to deny that there are Nicaraguans there. I would even find it very strange if there
were no Nicaraguans – Nicaraguans who have lived in El Salvador for a long time, plus others who may have gone
to El Salvador more recently.
A short time ago, however, we heard a report that referred to Nicaraguan mercenaries. If there are any Nicaraguan
mercenaries, they would have to be national guardsmen hired by the Salvadoran Army. The term mercenary is not
applicable when referring to a liberation group. In any event, the only thing that has been confirmed is the presence
of U.S. mercenaries, who are fighting against the Salvadoran people.‘ (FBIS, Panama City Televisora Nacional, 7
January 1981.)
A few days later, the Nicaraguan Foreign Minister amplified his views. An AFP dispatch broadcast on 14 January 1981
(FBIS, Central America, 15 January 1981, p. 17) reported:
‘Nicaraguan Foreign Minister Miguel d'Escoto described here this afternoon a report that two barges full of guerril-
las from Nicaragua had landed in El Salvador as a 'complete invention’.
D'Escoto added that his government cannot prevent Nicaraguans from 'voluntarily joining the defense of the Sal-
vadoran people'.
'I said in Ecuador that it is not unusual for Nicaraguan guerrillas to be in El Salvador participating in the struggle the
Salvadoran people are waging for their liberation', d'Escoto stressed.
.............................
D'Escoto said that 'a difference must be made between a mercenary, who struggles in another country for a salary or
for pay, and a guerrilla, who struggles out of solidarity with a people pursuing their liberation or ideals'.‘
40. Also in January 1981, another comandante, according to Managua Radio Sandino (FBIS, Central America, 29 Janu-
ary 1981, p. 11) spoke as follows on the theme ‘El Salvador Will Overcome‘:
‘Commander of the Revolution Carlos Nunez, member of the *418 National Directorate of the Sandinist National
Liberation Front, has unmasked the international reactionary press in its campaign of falsehoods and silence regard-
ing our revolution. He spoke at the opening of the First International Meeting of Solidarity with Nicaragua, called 'El
Salvador Will Overcome’.
One of the main points of his speech was that it is an internationalist duty to disseminate the news of our situation.
He also said the common struggle of all the peoples for their liberation, independence and sovereignty against the
common enemy is the groundwork for mutual solidarity and internationalism of the nations.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 258
Regarding the Nicaraguan people's contribution to the general struggle of the brother countries, Nunez stressed that
this is the cause of the anxiety and desperation of Yankee imperialism.‘
41. In an interview with the Caracas magazine Bohemia of 20-26 April 1981, the following exchange with Commander
Borge appears:
‘[Question:] The U.S. Government insists that Nicaragua has become a bridgehead for the shipment of weapons to El
Salvador by the Cubans and Soviets.
[Answer:] They say that we are sending weapons to El Salvador but they have not offered any real proof. But let us
suppose that weapons have reached El Salvador from here. This is possible. More than that, it is possible that
Nicaraguan combatants have gone to El Salvador, but this cannot be blamed on any decision of ours. Our solidarity
with that country and that people are part of the consolidation of our revolutionary process.‘
42. On 19 July 1981, Commander Borge spoke at ceremonies marking the second anniversary of the victory of the
Nicaraguan revolution (FBIS, Central America, 21 July 1981, pp. 9-10), declaring:
‘This revolution goes beyond our borders. Our revolution was always internationalist from the moment Sandino
fought in La Segovia. With Sandino were internationalists from all over the world ... With Sandino was that great
leader of the Salvadoran people, Farabundo Marti ... All the revolutionaries and particularly all the people of Latin
America know that our people's hearts are with them and beat with them. Latin America is within the heart of the
Nicaraguan revolution and the Nicaraguan rrvolution is also within the heart of Latin America. This does not mean
that we export our revolution. It is sufficient – and we cannot avoid this – that they take our example ... The revolu-
tionary process will advance ... when we speak of mixed *419 economy, pluralism and national unity, it is within the
context of the revolution and not against the revolution ...‘
43. In February 1982, at the Fifth Permanent Conference of Latin American Political Parties (Managua Domestic Ser-
vice, 21 February 1982), Commander Borge asked:
‘How can a patriot be indifferent to the fate of his Latin American brothers? ... How can we keep our arms folded in
the face of the crimes that are being committed in El Salvador and Guatemala? How can one be decent, simply de-
cent, in this continent without showing solidarity for the efforts of these heroic people? ... From the wounds of only
one of the Latin American peoples flows the blood of all Latin America. This explains once again why we Sandinis-
tas show solidarity with all peoples who are fighting for their liberation. If we are accused of expressing solidarity, if
we are forced to sit in the dock because of this, we say: We have shown our solidarity with all Latin American
peoples in the past, we are doing so at present and will continue to do so in the future.‘
44. The extremity of the political and diplomatic – as well as logistic –support by the Nicaraguan Government of the in-
surgents in El Salvador was illustrated in 1981 by two exceptional events in the General Assembly of the United Nations.
In addressing the General Assembly on 8 October 1981, Commander Ortega declared that he was the bearer of a specific
proposal for the solution of the crisis in El Salvador:
‘conveyed to us by Salvadorian patriots. But first we should like to say that there is among us, accompanying the
delegation of Nicaragua, the President of the Democratic Revolutionary Front of El Salvador and member of the
Joint Political Commission for the Farabundo Marti Front for National Liberation ... Comrade Guillermo Ungo.‘
(A/36/PV.29, p. 27.)
Commander Ortega then read out the authorization of the Salvadoran insurgents, addressed to him, to convey their pro-
posals to the General Assembly, and proceeded to read out their detailed proposals – this in the presence of one of the
leaders of that insurgency, who was at the General Assembly accompanying the Nicaraguan delegation. Commander Or-
tega, in a wide-ranging and thoroughgoing assault on the United States for its ‘Acts of aggression, interference, pressure
and blackmail‘ which ‘never cease‘ (ibid., pp. 24-25), also affirmed, apparently in his role as spokesman both for the re-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 259
volutionaries of Nicaragua and of El Salvador:

‘Our peoples are ready to respond as Sandino did to any attempt at direct or indirect aggression, either in Nicaragua
or in El Salvador. We *420 all know that the threat of invasion is directed first and foremost against those two
peoples.‘ (A/36/PV.29, p. 26.)
45. In response, President Duarte observed that the Nicaraguan representative in the General Assembly:
‘appeared to be more the spokesman of an armed group – whose main activity in El Salvador has been to wage a
campaign of terrorism, sabotage, destruction and death, whose victim is not some enemy they try in vain to cre-
ate, but rather the whole Salvadorean people – than the representative of his country's Government.‘
(A/36/PV.33, p. 112.)
President Duarte continued:
‘It is a surprise to no one that the Sandinist Government was the only one inclined to fulfil so dishonourable a mis-
sion, for from the beginning it has been the chosen instrument, with its territory serving as the base for arms supply,
refuge and support for the armed groups and as a sounding board for their campaigns of false propaganda. Thus, in
the tragic Salvadorean conflict, the Nicaraguan Government can hardly be considered as a spokesman communicat-
ing a peace proposal in good faith.‘ (Ibid., p. 113.)
The representative of El Salvador who quoted to the General Assembly the foregoing statement of President Duarte also
observed that, for Nicaragua ‘to point out publicly from this rostrum that a person who is active in the opposition of an-
other country is physically seated in the seats assigned to the delegation of Nicaragua to the United Nations‘ invites the
General Assembly to become a ‘forum for chaos or a political circus‘ (ibid., p. 116).
46. In 1982, Commander Borge said in a message to the Continental Conference for Peace, Human Rights and Self-
Determination of El Salvador:
‘The struggle of the Salvadoran people is the struggle of all honest men and women of the continent ... This is a
struggle of all those who feel duty bound to support a brave David facing a criminal and arrogant Goliath, it is the
continuation of the struggle of Sandino, Farabundo Marti, Che Guevara, and Salvador Allende.‘ (Radio Sandino, 21
January 1982.)
47. When asked in 1983 how he would respond to Ambassador Jeane Kirkpatrick's statement that, since the revolution
triumphed in Nicaragua, domino-like ‘it will be exported to El Salvador, then Guatemala, then Honduras, then Mexico‘,
Commander Borge is quoted as replying: ‘That is one historical prophecy of Ronald Reagan's that is absolutely true!‘
(Claudia Dreifus, ‘Playboy Interview: The Sandinistas‘, Playboy, September 1983, p. 192.)
*421 48. In 1983, Commander Humberto Ortega Saavedra, Nicaraguan Minister of Defence, was quoted as stating: ‘Of
course we are not ashamed of helping El Salvador. We would like to help all revolutionaries.‘ (Michael Kramer, ‘The
Not-Quite War‘, New York Times, 12 September 1983, p. 39.)
49. In 1983, Commander Bayardo Arce was quoted as stating: ‘We will never give up supporting our brothers in El Sal-
vador.‘ (Ibid.) He had as early as 1980 promised ‘unconditional assistance to the revolutionary process in Guatemala and
El Salvador‘ (as quoted in ‘Revolution Beyond Our Borders‘, op. cit., p. 5).
50. In 1983, Commander Arce also declared that: ‘internationalism will not bend ... while Salvadorans are fighting to win
their liberty, Nicaragua will maintain its solidarity.‘ (Christopher Dickey, ‘Leftist Guerrillas in El Salvador Defend
Cuban Ties‘, the Washington Post, 11 March 1983.)
51. According to the Declaration of Intervention of El Salvador, in July 1983, the Nicaraguan Foreign Minister admitted
Nicaraguan support of insurgency in El Salvador:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 260
‘Nicaraguan officials have publicly admitted their direct involvement in waging war on us. Foreign Minister Miguel
d'Escoto, when pressed at a meeting of the Foreign Ministers of the Contadora Group in July 1983, by our Foreign
Minister, Dr. Fidel Chavez Mena, on the issue of Nicaraguan material support for the subversion in El Salvador,
shamelessly and openly admitted such support in front of his colleagues of the Contadora Group. That statement,
made in those particular circumstances, is significant, inasmuch as the interventionist attitude of the Nicaraguan
Government, in its eagerness to export subversion, not only manifests itself in relation to El Salvador, but also has
had to do with countries such as Colombia, Costa Rica, Honduras and other Latin American countries, with some of
which it has had serious problems. This is because Nicaragua, as Nicaragua itself recognized officially, has been
converted into the centre of exportation of revolution to all of the countries in the area.‘ (At para. IX.)
52. The Declaration of Intervention of El Salvador further affirms that Nicaraguan Chief of State Ortega, during a recent
interview by German television, publicly stated that he ‘could meet with President Duarte, but that would not impede the
fact of continuing support to the Salvadorian guerrillas‘. The Declaration of Intervention construes the foregoing state-
ment by then Co-ordinator Ortega as ‘a self-confession of intervention‘ which states ‘the official position in that regard
of the Government of Nicaragua ...‘ (at para. XIII).
*422 53. In May 1984, Commander Arce made a speech before the Political Committee of the Nicaraguan Socialist
Party, the text of which was printed in La Vanguardia, Barcelona, 31 July 1984. The speech is of particular interest in its
contemptuous treatment of the Nicaraguan elections (‘a bourgeois ... nuisance‘) and its admission that the Sandinistas
never had any intention of fulfilling their pledges to the OAS and others of political pluralism, international non-
alignment and a mixed economy. Commander Arce describes as ‘commitments‘ the programme of the Nicaraguan Gov-
ernment to implement these three principles. He speaks of Nicaragua's ‘dictatorship of the proletariat‘. Of immediate in-
terest to the question of whether or not Nicaragua is pursuing a policy of interventionism, Commander Arce had this to
say:
‘Imperialism asks three things of us: to abandon interventionism, to abandon our strategic ties with the Soviet Union
and the socialist community, and to be democratic. We cannot cease beinginternationalists unless we cease being re-
volutionaries.
We cannot discontinue strategic relationships unless we cease being revolutionaries. It is impossible even to consider
this.
Yet the superstructure aspects, democracy as they call it, bourgeois democracy, has an element which we can man-
age and even derive advantages from for the construction of socialism in Nicaragua. What are those advantages,
what was it we explained to the party leadership? The main thing about the elections, as far as we are concerned, is
the drafting of the new constitution. That is the important thing. The new constitution will allow us to shape the jur-
isdical and political principles for the construction of socialism in Nicaragua.
We are using an instrument claimed by the bourgeoisie, which disarms the international bourgeoisie, in order to
move ahead in matters that for us are strategic. On the one hand, it allows us to neutralize the aggressiveness of im-
perialism, while on the other it is going to provide us with a tool for moving ahead on substantive aspects of our re-
volution
.............................
Let them vote for everything that has been done in the revolution, for literacy, adult education, confiscations, nation-
alization of the banks and foreign trade, free education, the Soviet and Cuban military advisers, the internationalism
of the revolution. Let them vote for all that. That is the reality of our revolution and everything we have done has
that dynamic behind it.‘
Thus Commander Arce affirms that Nicaragua ‘cannot ... abandon interventionism ...‘. He does not, in this speech, spe-
cify the content of *423 Nicaraguan interventionism. But he himself elsewhere said that, ‘while Salvadorans are fighting

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 261
... Nicaragua will maintain its solidarity ...‘. And the content of Nicaraguan interventionism is elsewhere made clear not
only by Nicaraguan official statements but a good deal more evidence. (The Arce speech was extensively reported in the
international press. An English translation of the full text of Arce's speech was published in Department of State Publica-
tion 9422, March 1985, which lists its press coverage. The speech is alleged to have been tape-recorded without Com-
mander Arce's knowledge and then published in La Vanguardia; according to The Economist of 23 August 1984, and the
Washington Post, 12 August 1984, p. A-1, President Ortega acknowledged the authenticity of the speech.)
54. Eden Pastora, now an opponent of the Nicaraguan Government, was, for a time, the most famous of Nicaraguan
comandantes though never one of the nine, and he served as a Vice-Minister at the outset of post-Somoza rule. Counsel
for Nicaragua emphasized his independence from CIA influence. His contribution to an American scholarly journal is of
special significance:
‘When the Managua government, personified by the nine top Communists, was planning the insurrection in El Sal-
vador, I was a participant in the meetings of the National Leadership; I was in effect the tenth member of the Nation-
al Leadership without having formally been so designated. With care and much diplomacy, I told the rest of the lead-
ers that I did not agree with the idea of launching the Salvadorans into an insurrection ...‘ (Eden Pastora Gomez, loc.
cit., pp. 9, 10.)
55. The Memorial of Nicaragua on the merits, Annex I, contains, as Attachment 3, the Report of Donald Fox, Esq., and
Professor Michael J. Glennon, to the International Human Rights Law Group and the Washington Office on Latin Amer-
ica concerning Abuses Against Civilians by Counter Revolutionaries Operating in Nicaragua of April 1985. Appended to
that report are a number of statements given to Messrs. Fox and Glennon and apparently reproduced verbatim by them.
One of those statements is by Luis Carrion, Deputy Minister of the Interior, apparently given in early 1985 (it does not
carry a date). In his statement, submitted in evidence in this proceeding by the Government of Nicaragua, Commander
Carrion is quoted as saying the following:
‘We are giving no support to the rebels in El Salvador. I don't know when we last did. We haven't sent any material
aid to them in a good long time. That's why Reagan had said the reason for supporting the Contras is not to stop the
flow of arms – it is to overthrow the government of Nicaragua!‘ (At p. 34.)
*424 The contradictions between the statement just quoted of Commander Carrion, introduced into evidence by
Nicaragua, and his verbal testimony in Court, introduced into evidence by Nicaragua, are obvious. In Court, Commander
Carrion swore that his Government ‘never‘ had a policy of sending arms to Salvadoran insurgents. But in his statement to
Messrs. Fox and Glennon, the Commander maintains that ‘we‘ – which in context can only mean the Government of
Nicaragua – ‘are giving no support‘ to the rebels in El Salvador, not that ‘we‘ never did; a conclusion which is reinforced
by his next sentence: ‘We haven't sent any material aid to them in a good long time‘ (emphasis supplied). Now ‘any ma-
terial aid‘ must embrace arms, which surely is one form of material aid. That is made the clearer in the reference to ‘the
flow of arms‘ in the last sentence quoted of the Commander's statement. When Commander Carrion affirms that such aid
has not been sent to the Salvadoran insurgents ‘in a good long time‘, he imports that, at one time, aid was sent and that
‘we‘ sent it. that is to say, he infers in this statement that any statement that aid ‘never‘ was sent by the Nicaraguan Gov-
ernment to Salvadoran insurgents is false; that, on the contrary, at one time, the Nicaraguan Government did have a
policy of sending arms to the insurgency in El Salvador.
56. In an interview with the New York Times in Managua on 16 July 1985, President Ortega is reported to have
‘conceded that Nicaraguan territory had once been used to ship weapons to guerrillas in El Salvador ...‘. The report of the
interview continues:
‘Soon after the White House meeting President Carter criticized the Sandinistas, after accusations arose that they
were sending weapons to revolutionaries in El Salvador.
Mr. Ortega said that members of the Nicaraguan armed forces had aided such shipments but that they had done so

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 262
without Government sanction.‘ (The New York Times, 18 July 1985, p. A10.)
57. Quotations, apparently from this same interview of 16 July 1985 with President Ortega, were given in a subsequent
dispatch of 17 September 1985. That report quotes President Ortega as follows:
‘There were times when we were finding groups of 40 to 50 of our army soldiers ready with knapsacks and weapons
on their way to El Salvador, but, we said, 'we have had to detain them and to punish them’.
Mr. Ortega said that at one point, the first United States Ambassador to the Sandinista Government, Lawrence
Pezzullo, presented him with evidence that an airstrip in the western province of Leon was *425 being used to trans-
port arms to Salvadoran rebels. He said, 'we took necessary measures so this airstrip would not continue to be used
for this type of activities'.‘ (The New York Times, 17 September 1985, p. 2.)
58. It will be noted that, in this interview, President Ortega declares, in respect of the use of the airstrip in the Western
province of Leon (see the discussion below of the use of the airstrip at Papalonal) that: ‘We took necessary measures so
this airstrip would not continue to be used for this type of activities.‘ (Emphasis supplied.) That is a clear admission that
the airstrip had been used for those activities. What activities? As will be demonstrated, the shipment by air of arms to
Salvadoran insurgents. Could the activities at Papalonal have been an excursion of free enterprise, a caper by ardent
young guerrillas acting without the knowledge and support of the Nicaraguan Government? The answer to that question
is self-evident, but is further elucidated by evidence of the United States which I read into the record of the oral hearings
in connection with questions addressed by me to the Agent and counsel of Nicaragua. That evidence (Hearing of 18
September 1985) reads as follows:
‘The principal staging area came to be an airfield at Papalonal. The pattern and speed of construction at Papalonal,
which is in an isolated area 23 nautical miles northwest of Managua, lacking adjacent commercial or economic activ-
ity, made clear its military function. In late July 1980, this airfield was an agricultural dirt airstrip approximately 800
metres long. By December, photography revealed a lengthened and graded runway with hard dispersal areas, and
storage buildings under construction. By January 1981, the strip had been lengthened to 1,200 metres. A turnaround
had been added at each end. A dispersal parking area with three hardstands had been constructed at the west end of
the runway. Three parking aprons had been cleared, and three hangar or storage buildings, each about 15 metres
wide, had been constructed on the aprons.
On January 2, 1981, a C-47 was observed at Papalonal for the first time. Two C-47s were observed in February.
These C-47sand DC-3s ... were used to ferry larger cargos of arms from Papalonal to areas of guerrilla infiltration in
southeastern El Salvador. Several pilots were identified in Nicaragua who regularly flew the route into El Salvador.
Radar tracking also indicated flights from Papalonal to southeastern El Salvador.
On January 24, 1981, a C-47 dropped arms by parachute in the vicinity of a small strip in southeastern El Salvador.
On January 24, *426 1981, a Cessna from Nicaragua crashed upon takeoff after unloading passengers at an airfield
in El Salvador close to where the C-47 airdrop occurred. A second plane, a Piper Aztec, sent to recover the downed
crew, was strafed on the ground by the Salvadoran Air Force. The pilot and numerous weapons were captured. The
pilot stated he was an employee of the Nicaraguan National Airlines (LANICA) and that the flight originated from
Sandino International Airport in Managua.‘ (Department of State, ‘Revolution Beyond Our Borders‘, pp. 7-8.)
59. This evidence of the reconstruction and usage of the Papalonal airstrip was not refuted by Nicaragua, though it was
placed before its Agent and counsel in the course of the oral hearings. That evidence is difficult to reconcile with the im-
putation by President Ortega in his interview with the New York Times that the employment of Papalonal to supply the
Salvadoran insurgency was effected without the knowledge and support of the Nicaraguan Government. It may well be
that, after the United States Ambassador drew to Commander Ortega's attention the knowledge of the United States that
the airstrip was being used for the ferrying of arms to Salvadoran insurgents, the airstrip was closed down. But that
hardly supports any claim that it was not built up and employed by the Nicaraguan Government for the purposes for

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 263
which it was actually used.
60. It should also be noted that the photographs of Papalonal taken from the air, which presumably buttressed the repres-
entations of the United States to Commander Ortega, one of which is reproduced in ‘Revolution Beyond Our Borders‘, at
page 8, were taken by United States aircraft which conducted overflights of Nicaraguan territory, about which Nicaragua
has strongly protested. The defensive – and thus legal – nature of such overflights is indicated, however, by the fact that
they were so useful in demonstrating to Commander Ortega himself an internationally illegal use of the territory of
Nicaragua about which he professed to be unaware.
61. The Papalonal airstrip will be further examined in connection with the testimony of Nicaragua's leading witness. But
at this juncture, it is of interest to quote Dickey's conclusions:
‘The Carter administration, in the last days of its term, had suspended what was left of the $75 million in aid it won
for the Sandinistas a year before. There had been little choice. Certainly there would have been no way to certify,
after the Salvadoran 'final offensive,’ that the Sandinistas were not abetting other rebel movements. The Nicaraguans
had acted with incredible indiscretion. Years later Salvadoran dissidents and rebel leaders who were in Managua and
Havana at the time would shake their heads when they recalled how they even trained acrobats for the victory parade
through San Salvador. Eden Pastora would remember the Salvadoran guerrilla commanders decked out in well-
pressed uniforms directing their triumph – then watching their defea – from a command center at the house of *427
Somoza's mistress. By January 14, U.S. intelligence had picked up an avalanche of incriminating evidence, including
a truck with a roof full of M-16s rolling through Honduras. The game was over and the chits were being called in. '
You people are just irresponsible,' Ambassador Pezzullo told Borge and Daniel Ortega when he saw them at a cock-
tail party. 'We've got you red-handed.' And the Sandinistas knew it. They began taking measures to recoup. By
March they had shut down the airfield at Pamplonas that had been used to supply the Salvadorans. The airplanes
were decommissioned, the pilots dispersed.‘ (Loc. cit., p. 105. The quotation of Ambassador Pezzullo's remarks is
drawn from an interview with the Ambassador (p. 290). See also, for further detailed descriptions of Nicaraguan
arms shipments to Salvadoran insurgents, p. 75. See also, Christian, op. cit., pp. 193-196.)
Dickey finds not only that the Nicaraguan Government's supply of arms to the Salvadoran rebels for the January 1981 of-
fensive is incontrovertible. He reports that, in 1982, shipments of arms to the Salvadorans ‘had not stopped. They had in-
creased‘ (at p. 133).
62. That Nicaraguan provision of arms to the Salvadoran insurgents, which halted for a time after the January 1981 of-
fensive and then resumed, did indeed increase in 1982 is borne out by the following passage from ‘Revolution Beyond
Our Borders‘, pages 10-11:
‘With Cuba as a main source, Nicaraguan supplies of arms to FMLN units were stepped up to make possible an of-
fensive to disrupt a peaceful vote in the March 28, 1982, Constituent Assembly elections.
In the first 3 months of 1982, shipments of arms into El Salvador reached the highest overall volume since the 'final
offensive' in 1981. The Nicaraguan-based arms flow into El Salvador utilized both sea and overland routes through
Honduras. In February 1982, for example, a large shipment of arms arrived by sea from Nicaragua to the Usulutan
coast. Early in March 1982, a guerrilla unit in El Salvador received several thousand sticks of TNT and detonators
(five sticks of TNT are sufficient to blow up an electrical pylon).
In addition to small arms and vitally needed ammunition, guerrilla supply operations in 1982 provided greater quant-
ities of heavier weapons, including 57 mm recoilless rifles and M-72 antitank weapons, thus significantly increasing
guerrilla firepower.‘
*428 2. Admissions by witnesses appearing on behalf of the Nicaraguan Government
63. Commander Carrion's admission in his role as witness for his Government has been set forth above. Two other wit-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 264
nesses for the Nicaraguan Government also made significant admissions.
64. The report of Messrs. Fox and Glennon referred to above – the report which was the basis of Professor Glennon's
testimony – reaches a conclusion consistent with Commander Carrion's admission which is reproduced in that report: it
states that ‘the Sandinista Government maintains that it has not supplied arms to the Salvadoran guerrillas for some time‘
(Memorial of Nicaragua, Ann. I, Att. 3, p. 6; emphasis supplied). It is obvious that that statement is inconsistent with the
sworn statements of Minister D'Escoto and Vice-Minister Carrion that the Nicaraguan Government ‘never‘ has supplied
arms to the Salvadoran guerrillas.
65. Much more significant still were still the admissions of Mr. David MacMichael, a former intelligence analyst of the
CIA called by Nicaragua as a premier witness. On direct examination by Nicaraguan counsel, the following exchange
took place:
‘[Question:] So you were familiar with the intelligence information that the United States Government collected with
respect to arms or weapons trafficking between Nicaragua and rebels in El Salvador?
[Answer:] Yes, I was.
Q.: All right. I want to direct your attention now to the period of your employment with the Agency. Was there any
credible evidence that during that period, March 1981 to April 1983, the Government of Nicaragua was sending arms
to rebels in El Salvador?
A.: No.
Q.: Was there any substantial evidence that during this period arms were sent from or across Nicaraguan territory to
rebels in El Salvador with the approval, authorization, condonation or ratification of the Nicaraguan Government?
A.: No, there is no evidence that would show that.
Q.: Was there any substantial evidence that during the same period, any significant shipments of arms were sent with
the advance knowledge of the Government of Nicaragua from or across its territory to rebels in El Salvador?
A.: There is no such substantial evidence, no.
*429 Q.: Was there any substantial evidence that during that period significant quantities of arms went to El Sal-
vador from Nicaragua?
A.: From Nicaragua, that is originating in Nicaragua, no.
Q.: Was there substantial evidence of shipments of arms from other countries in the region to the El Salvador guer-
rillas?
A.: Yes, there was.
Q.: Could you give us some examples please?
A.: I think the best known of these is the evidence developed on 15 March 1982, when there was a raid on an arms
depot in San Jose, Costa Rica, at which time a considerable quantity of arms, well over a hundred rifles, automatic
weapons of various sorts, other ordnance, mines and so forth, were captured there along with a significant number of
vehicles – more than half a dozen I believe – that were used to transport these arms, or were designed for transport-
ing them. Documents were captured with the people captured there – a multinational group I would say – which in-
dicated that certainly more than half a dozen shipments of arms had already been made from that depot. The reason I
failed to tell you on your previous question, Mr. Chayes, was that it would appear to me that if arms were shipped
from San Jose, Costa Rica, by vehicle, they must have in some way had to get across Nicaragua.‘ (Hearing of 16
September 1985.)
Two observations may be made on the foregoing exchange. First, Nicaraguan counsel's questions contained qualifying
adjectives – was there any ‘credible‘ evidence, was there any ‘substantial‘ or ‘convincing‘ evidence of ‘significant‘ ship-
ments of arms – which may be taken as qualifying the answers. More than that, on initial, direct examination, Mr.
MacMichael affirmed that ‘there was‘ substantial evidence of shipment of arms to the El Salvador guerrillas from other

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 265
countries of the region (specifically, Costa Rica) ‘across Nicaragua‘.
66. The comments of the United States Permanent Representative to the United Nations made in the Security Council
days after the very event in question are of interest. Ambassador Kirkpatrick declared on 25 March 1982:
‘On 15 March 1982 the Costa Rican judicial police announced the discovery of a house in San Jose with a sizable
cache of arms, explosives, uniforms, passports, documents, false immigration stamps from more than 30 countries,
and vehicles with hidden compartments – all connected with an ongoing arms traffic through Costa Rican territory to
Salvadoran guerrillas. Nine people were arrested: Salvadorans, *430 Nicaraguans, an Argentine, a Chilean and a
Costa Rican. Costa Rican police so far have seized 13 vehicles designed for arms smuggling. Police confiscated
some 150 to 175 weapons, from mausers to machine-guns, TNT, fragmentation grenades, a grenade-launcher, am-
munition and 500 combat uniforms. One of the captured terrorists told police that the arms and other goods were to
have been delivered to the Salvadoran guerrillas before 20 March, 'for the elections'.‘ (S/PV.2335, p. 46.)
67. Immediately after the foregoing exchange, the direct examination of Mr. MacMichael continued as follows:
‘[Question:] 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 Salvadoran rebels from Nicaragua at any time?
[Answer:] Yes, I did.
Q.: When was that?
A.: Late 1980 to very early 1981.
Q.: And what were the sources of that evidence?
A.: There were a variety of sources: there was documentary evidence, which I believe was codable, there were – and
this is the most important – actual seizures of arms shipments which could be traced to Nicaragua and there were re-
ports by defectors from Nicaragua that corroborated such shipments.
Q.: Does the evidence establish that the Government of Nicaragua was involved during this period?
A.: No. it does not establish it, but I could not rule it out.
Q.: At that time were arms shipments going to the El Salvadoran insurgents from other countries in the region?
A.: Yes, they were.
Q.: Could you give us examples?
A.: There were shipments at that time which could be traced to Costa Rica; there were shipments at that time that
could be traced as having come through or via Panama.
Q.: And did the evidence of arms traffic from Nicaragua, if any, come to an end?
A.: The evidence of the type I have described disappeared. They did not come in any more after very early 1981,
February/March at the latest.
*431 Q.: You say at some time, just about the time you got to the Agency, the evidence stopped coming in: did it
ever resume?
A.: As I have testified, no.‘ (Hearing of 16 September 1985.)
These admissions – on direct examination – are remarkable. Nicaragua's own witness affirms that he saw evidence that,
from ‘late 1980 to very early 1981‘, ‘arms‘ were ‘going to the Salvadoran rebels from Nicaragua‘. And Mr. MacMichael
relies on what to sustain that conclusion? Documentary evidence, actual seizures of arms, and corroborating reports of
defectors. Did that evidence ‘establish that the Government of Nicaragua was involved during this period?‘ Mr. MacMi-
chael replies: ‘No, it does not establish it, but I could not rule it out.‘
68. Finally, on direct examination, Professor Chayes had this summarizing exchange with Mr. MacMichael:
‘[Question:] Now to summarize your testimony. You had access to and review, in your professional capacity and as
part of your duties for the Central Intelligence Agency between March 1981 and April 1983, of the intelligence in-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 266
formation on the subject of arms supply to the Salvadoran rebels, is that correct?
[Answer:] That is correct.
Q.: That includes intelligence information from all the sources of intelligence that we have catalogued earlier in your
testimony?
A.: Yes, it does.
Q.: In the intelligence information you reviewed, you found no convincing evidence of the supply of arms to the Sal-
vadoran rebels by the Nicaraguan Government or the complicity of the Nicaraguan Government in such supply?
A.: I did not find any such evidence.
Q.: I would like to ask you, in your capacity as a professional intelligence analyst, does the absence of such evidence
have any significance in evaluating the question of Nicaraguan supply of the Salvadoran rebels?
A.: I would say that it casts serious doubt on the proposition that the Nicaraguan Government is so involved.
Q.: Will you state again your overall conclusion as to the existence of arms traffic from Nicaragua to the Salvadoran
insurgents?
*432 A.: I do not believe that such a traffic goes on now or has gone on for the past four years at least, and I believe
that the representations of the United States Government to the contrary are designed to justify its policies toward
the Nicaraguan Government.‘ (Hearing of 16 September 1985; emphasis supplied.)
69. The subsequent comments of the Nicaraguan Agent on the purport of Mr. MacMichael's testimony before the Court
are of interest. In his letter of 26 November 1985, Ambassador Arguello Gomez stated the following:
‘To briefly summarize that testimony and evidence: the Government of Nicaragua has never supplied arms or other
war materials to El Salvadoran insurgents or authorized the use of Nicaraguan territory for such purpose. This does
not mean that persons sympathetic to the insurgents have not, without the approval of the Nicaraguan Government
and contrary to its policy, sent small quantities of arms from or through Nicaraguan territory to the insurgents;
however, the Nicaraguan Government has acted diligently to prevent and stop such arms trafficking to the best of its
ability. The testimony of Mr. David MacMichael, a former CIA official called as a witness by Nicaragua, was that
some arms shipments to El Salvadoran insurgents emanated from Nicaraguan territory at the very beginning of 1981,
but that these shipments ceased, and did not resume, after March 1981. He saw no evidence of any other shipments
between April 1981 and April 1983, when his employment with the CIA ended. Mr. MacMichael testified that the
evidence 'did not establish’ that the Nicaraguan Government was responsible for the arms shipments at the very be-
ginning of 1981, and Nicaraguan Government witnesses have told the Court that the Government had no involve-
ment or responsibility as regards those or any other shipments. See, e.g., Hearing of 16 September 1985.‘
70. It may be asked whether this characterization of the testimony of Mr. MacMichael is within the bounds of advocacy,
for while it is true that Mr. MacMichael there concluded, on direct examination, that the evidence ‘did not establish‘
Nicaragua's complicity, he also said that he ‘could not rule it out‘ – and he said more. But what is extraordinary about
this statement of the Nicaraguan Agent is that it simply ignores Mr. MacMichael's answers in response to questions from
the Court. As shown below, Mr. MacMichael's answers to those questions (a) directly contradict the continuing conten-
tions of Nicaragua that it has ‘never supplied arms or other war material to El Salvadoran insurgents or authorized use of
Nicaraguan territory for such purpose‘ and (b) demonstrate that either Foreign Minister D'Escoto and Commander Carri-
on misrepresented the facts in their sworn submissions to the Court, or, alternatively, demonstrate that Mr. MacMichael's
testimony is so fundamentally flawed as to be treated as impeached. The Court could have chosen between treating the
affirmations*433 of Messrs. D'Escoto and Carrion as truthful and those of Mr. MacMichael as untruthful, or treating the
latter as truthful and the former as untruthful. Since, however, among many other elements of evidence, Commander Car-
rion tripped himself up by also submitting an affidavit to the Court which is consistent with Mr. MacMichael's testimony,
and inconsistent with his own and with Foreign Minister D'Escoto's, the correct conclusion appears to be that Mr.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 267
MacMichael spoke truthfully.
71. Now let us look at the relevant exchanges with Mr. MacMichael referred to in the preceding paragraph. The first was
as follows:
‘[Judge Schwebel:] My first question is this. You stated that you went on active duty with the CIA on 6 March 1981
and left on 3 April 1983, or about that date. Am I correct in assuming that your testimony essentially relates to the
period between March 1981 and April 1983, at least in so far as it benefits from official service?
[Mr. MacMichael:] That is correct ... and I have not had access since I left to classified materials, and I have not
sought access to such material.
Q.: 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 pos-
ition to know that; is that correct?
A.: I think I have testified ... 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'.‘ (Hearing of 16 September 1985.)
It will be observed that Mr. MacMichael does not squarely sustain the opinion attributed to him by the Nicaraguan Agent
that the evidence ‘did not establish‘ Nicaragua's complicity; rather his ‘inclination would be more towards ruling 'in’
than ruling 'out'‘. It will also be observed that Mr. MacMichael refers to facts within his own knowledge; he avers that he
reviewed ‘the immediate past intelligence material‘ for the 1979-1981 period.
*434 72. I then asked Mr. MacMichael whether he could explain how it was that Congressman Boland, who, as Mr.
MacMichael acknowledged, saw essentially the same intelligence data as Mr. MacMichael, arrived at the conclusion that,
‘contrary to the repeated denials of Nicaraguan officials, that country is thoroughly involved in supporting the Salvador-
an insurgency‘ (ibid., p. 31). Mr. MacMichael hazarded explanations examined below (paras. 146, 154-155), in answer to
what he described as a ‘very important question‘. This exchange then ensued:
‘[Question:] Thank you so much, Mr. MacMichael, and that raises in my mind this question: let us suppose for a mo-
ment that your thesis is correct and that the arms flow from Nicaragua to El Salvador in the period of your tenure had
substantially or entirely ceased. Let us assume for the moment that there were shipments of arms from Nicaragua to
the El Salvador insurgents for the big offensive at the beginning of 1981, that, as Commander Carrion has testified,
by the end of 1981 the CIA's support for the contras was in place. You come aboard I think in March 1981 and you
are there until 1983, and during at least much of this period the contra operation was being funded actively and was
in place, is it not a plausible supposition that far from being ineffective the contras were most effective, and that the
very reason why the Nicaraguan Government stopped sending arms, if indeed it did, was because of the pressure of
the contras? It could see that it was a counter-productive policy because it had produced United States funding of the
contras where United States demarches had produced nothing. Is that plausible?

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 268
[Answer:] I think it is plausible ... and I would go on with my response, if you desired me to do so. It is my proposi-
tion indeed, and my opinion if I may say so, that the alleged flow of arms from Nicaragua to the Salvadoran insur-
gents ceased, that no credible substantial evidence of such an arms flow existed in the time that I was examining it,
and you propose, if I understand your question, that an explanation for this would be the excellent and effective in-
terdiction and preventive work of this contra force.
Q.: No, if I may make myself a bit clearer, I am not suggesting that the contras were necessarily effective in inter-
dicting arms flows. They may have been somewhat effective, they may have been ineffective, I frankly do not know,
but my suggestion of a plausible explanation of the events you have described is that Nicaragua had perceived that a
policy of sending arms to insurgents in El Salvador had a price, and they feared it might have an even greater price,
and therefore they stopped sending arms, if indeed they did, on which I take no position. I am just offering a hypo-
thesis.
*435 A.: Thank you. The statement I was going to make ... is, assuming that that is correct, it is then very difficult to
explain why through the whole period the United States Government continued to maintain that this flow of arms
went on, if indeed it had stopped as a result of the Nicaraguan Government's recognition of the perils it faced in con-
tinuing to involve itself, or appeared to involve itself. It is indeed strange to me that the United States Government
continued to claim it went on.
Q.: I quite agree, if indeed it had stopped. I said that I am speaking in terms of a hypothesis.‘ (Hearing of 16 Septem-
ber 1985.)
It is an instructive exchange, for it confirms Mr. MacMichael's acceptance of the fact that Nicaragua had shipped arms to
the Salvadoran insurgents before March 1981; and indicates his acceptance of the hypothesis that the reason why the
arms flow might have ceased in the period March 1981-April 1983 was because the Nicaraguan Government had come to
feel the pressures exerted upon it because of its subversion of El Salvador (such an hypothesis would also apply to a
slowing, or a more effective concealment, of arms trafficking as it would to its cessation).
73. The exchange then resumed in these terms:

‘To turn to another aspect of these facts, Mr. MacMichael, is it a fact that leaders of the Salvadoran insurgency are
based in Nicaragua and regularly operate without apparent interference from Nicaraguan authorities in Nicaragua?
[Answer:] I think the response to that question would have to be a qualified yes, in that political leaders and, from
time to time, military leaders, of the Salvadoran insurgency have reported credibly to have operated from Nicaragua,
that this was referred to frequently by the United States Government as a command and control headquarters, and
that such an action could certainly be defined as one unfriendly toward the Government of El Salvador recognized
by the United States. I have confined my testimony to the charge of the arms flow.‘ (Ibid.)
74. An extended exchange then ensued as to the plausibility of Cuba sending arms to the Salvadoran insurgency through
Nicaragua. Mr. MacMichael declined to draw conclusions, but acknowledged that such Cuban activities were ‘plausible‘
(ibid., p. 39).
75. Thereupon there was this exchange:

‘[Question:] Mr. MacMichael, have you heard of Radio Liberacion?
[Answer:] I have heard of Radio Liberacion, yes.
Q.: What is it? Can you tell the Court, please?
*436 A.: It was a predecessor of the basic Radio Venceremos which is used by the FMLN in El Salvador. I believe
that at one time a radio broadcast under the title of 'Radio Liberacion' was supposed to have originated from Nicara-
guan soil.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 269
Q.: Did they in fact originate from Nicaragua, to the best of your knowledge?
A.: To the best of my knowledge I think I would say yes, that is the information I have.‘ (Hearing of 16 September
1985.)
Thus Mr. MacMichael acknowledged broadcasting from Nicaragua by the Salvadoran insurgents. (The FBIS has pub-
lished the monitorings of many such broadcasts. For example, on 9 January 1981, Radio Liberaction, operating out of
Nicaragua, boasted that the new United States President – the ‘cowboy President‘ – would come to office too late to stop
the guerrilla victory in El Salvador. FBIS, Central America, 12 January 1981.)
76. At that point, the following crucial exchange took place between Mr. MacMichael and myself:
‘[Question:] Have you heard of an airfield in Nicaragua at Papalonal, or an airstrip?
[Answer:] Yes, I have.
Q.: Are you aware of the fact that the United States Government under the Carter Administration made representa-
tions to the Nicaraguan Government about the use of that airfield as a principal staging area for the airlift of arms to
insurgents in El Salvador?
A.: Yes, I recall that very well.
Q.: In an interview with the Washington Post published on 30 January 1981, the outgoing Secretary of State, Ed-
mund Muskie, stated that arms and supplies being used in El Salvador's bloody civil war were flown from Nicaragua
'certainly with the knowledge and to some extent the help of Nicaraguan authorities'. Now as you know the Adminis-
tration for which Mr. Muskie spoke had given more than $100 million in aid to the Sandinista Government since it
took power.
A.: That is correct.
Q.: Do you think that Mr. Muskie was speaking the truth?
A.: Oh yes, in that case. For example, I spoke earlier under direct questioning from Mr. Chayes regarding informa-
tion that had existed for that period – late 1980 to very early 1981 – and when I mentioned defectors I had in mind as
a matter of fact some persons who ... stated under interrogation following their departure from Nicaragua that they
had assisted in the operations out of Papalonal in late 1980 and *437 very early 1981, and as I say, I am aware of
this; there was also an interception of an aircraft that had departed there – that had crashed or was unable to take off
again from El Salvador where it landed – and I think that was in either very early January or late December 1980 and
this was the type of evidence to which I referred, which disappeared afterwards.
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 Salvadoran 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.‘ (Hearing of 16 September 1985.)
77. The foregoing exchange calls for the following observations. First, Mr. MacMichael confirms that the Carter Admin-
istration made representations to Nicaragua about the use of the airstrip at Papalonal to fly arms to Salvadoran insurgents
(see in this regard, President Ortega's statement to the New York Times quoted in paragraph 57 of this appendix).
Second, he agrees that President Carter's Secretary of State spoke truthfully in accusing Nicaragua of knowing about and
supporting the supply of arms to the Salvadoran insurgency. (If Mr. Muskie spoke truthfully, then it follows that various
spokesmen of the Nicaraguan Government in this case have spoken untruthfully in saying the opposite on that precise
point.) Third, the description of the facts surrounding the operations out of Papalonal given by Mr. MacMichael closely
corresponds with the account given of those very operations by the United States (‘Revolution Beyond Our Borders‘, pp.
18-19, 28-29) – an account, much of which was read out in Court (see para. 58 above), which is incompatible with the re-
iterated claim of the Nicaraguan Government that it ‘never‘ participated in the shipment of arms to Salvadoran insurgents

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 270
(see also, Background Paper: Nicaragua's Military Build-Up and Support for Central American Subversion, pp. 21-22,
submitted by the United States to the Court with its Counter-Memorial, and the statement of Ambassador Kirkpatrick of
25 March 1982 in the Security Council about the role of Papalonal airstrip, S/PV.2335, pp. 42-43). Fourth, and most im-
portant of all, Mr. MacMichael agrees 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 Salvadoran insurgency‘. That affirmation undermines the bedrock
assertions of the position of the Nicaraguan Government in this case. If what Mr. MacMichael takes as the fact is the fact
then it necessarily – not possibly but necessarily – follows that Foreign Minister D'Escoto, Commander Carrion and the
Nicaraguan Agent have sworn and spoken contrary to the fact.
*438 3. Admissions by Nicaraguan counsel
78. Contrary to the practice of the Court, and the import of Article 53 of the Rules of Court, the Nicaraguan Government
released the substance of its pleadings to the press before they were made public by the Court (see the New York Times
of 7 May 1985, at p. A16, which contains a detailed summary of the Nicaraguan Memorial on the merits, not released by
the Court until the opening of oral argument in September). Perhaps then it should not have been surprising that, shortly
before the merits of the case were argued in Court, Professor Chayes and Mr. Reichler gave an interview to Shirley
Christian of the New York Times by which readers were informed of what ‘the Government of Nicaragua will try to
prove in proceedings opening at the World Court next week ...‘ (the New York Times, 8 September 1985, p. 23). That
article contains the following passages:
‘Addressing a longstanding United States accusation, the lawyers for Nicaragua said they would acknowledge that
the Managua Government supplied weapons to Salvadoran guerrillas for the big January 1981 offensive against the
United States-backed Government in El Salvador. But they will argue that there is no credible evidence of sustained
arms shipments since then.‘
After some paragraphs, the article concludes:
‘The lawyers said their key witness to rebut the United States charge that the Sandinistas were aiding the Salvadoran
guerrillas, the initial reason the Administration used for backing the contras, would be David MacMichael, a former
CIA analyst. Mr. MacMichael has previously given Congressional testimony saying the Administration's case is
weak.
American officials have said the Sandinistas tacitly acknowledged several years ago that aid might be going from
Nicaragua to the Salvadoran guerrillas but maintained it was from individuals.
Mr. Reichler said he 'strongly advised' Nicaragua that it should not undertake the court suit if it were still involved in
arms traffic to El Salvador.
'They assured us from the beginning that they had nothing to hide', he said.‘
79. Thus we have counsel for Nicaragua, according to this report, (a) acknowledging that the Nicaraguan Government
supplied weapons to the Salvadoran insurgents for their January 1981 final offensive; (b) maintaining that there is no
‘credible‘ evidence of ‘sustained‘ arms shipments since; (c) stating that they advised the Nicaraguan Government not to
bring suit if it were ‘still‘ involved in such traffic; and (d) characterizing Mr. MacMichael as their ‘key witness‘. It is in-
teresting to note that when *439 that key witness testified, he declared to be the fact what Nicaraguan counsel said that
they would acknowledge as the fact.
80. In a further article of 14 September 1985, also written by Shirley Christian, the following lines are found:
‘American lawyers for the Nicaraguan Government, whose suit now being heard in The Hague charges aggression
by the United States because of its support for Nicaraguan rebels, have acknowledged that weapons were shipped to
El Salvador before the January 1981 guerrilla offensive there but say there is no 'credible evidence’ of a sustained
flow since April 1981. They also say there is no proof that the Nicaraguan Government itself was responsible for the
arms that were shipped in late 1980 and early 1981.‘ (The New York Times, 14 September 1985, p. 3.)

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 271
While the article of 8 September 1985 contains admissions which, if accurately reported, contradict the position of the
Nicaraguan Government that it ‘never‘ sent arms to Salvadoran rebels, the article of 14 September is less damaging to
Nicaraguan credibility. It reaffirms that Nicaraguan counsel have acknowledged that weapons were shipped to El Sal-
vador for the 1981 final offensive and reiterates that there is no ‘credible‘ evidence of a ‘sustained‘ flow thereafter. But it
adds that counsel also say, not that it is not true, but that ‘there is no proof‘ that the Nicaraguan Government itself was
responsible for the arms that were shipped in late 1980 and early 1981.
81. In his letter to the Court of 15 October 1985, the Nicaraguan Agent stated the following:
‘Nicaragua's counsel have never stated or implied that the Government of Nicaragua supplied arms to rebels in El
Salvador or condoned the supply of arms by others from Nicaraguan territory. Any newspaper article purporting to
attribute such statements or implications to Nicaragua's counsel is inaccurate.‘
No explanation is proffered of what Nicaraguan counsel actually said, or of in what precise respects the two articles re-
porting their statements are ‘inaccurate‘.
82. In his peroration to the Court, Professor Chayes equivocated: ‘Nicaragua produced concrete and credible evidence all
of which shows that it was not supplying arms to El Salvador either now or in the relevant past‘ (Hearing of 19 Septem-
ber 1985). What, it must be asked, is ‘the relevant‘ past? But it must first be observed that Nicaragua presented no evid-
ence – apart from self-serving affirmations by the Nicaraguan Foreign Minister, Commander Carrion and the Nicaraguan
Agent – about what it is doing ‘now‘. It presented the evidence of Mr. MacMichael, *440 which, to the extent that it is of
value, can be so only for the period in which he claims to have had access to the intelligence data, namely, mid-1979 to
April 1983. April 1983 is not ‘now‘. And as for the past, the admissions of Nicaraguan leaders and of its witnesses of
themselves demonstrate the falsity of any such claim unless, arguably, the period before April 1981 is excluded as not
being ‘relevant‘. And what reason is there for concluding that it is not relevant, except that to do so suits Nicaragua's
case? If one considers the motivations of the United States, the actions of Nicaragua before April 1981 demonstrably are
relevant, for they led, among other things, not only to support of the contras, but to (a) the resumption of United States
arms aid to the Government of El Salvador, which had been suspended; (b) the suspension of economic aid to the Gov-
ernment of Nicaragua by the Carter Administration; and (c) the termination of economic aid to the Government of
Nicaragua by the Reagan Administration. A number of reports indicate that a critical factor in leading the United States
to support the contras, and in persuading the United States that the Sandinista Government cannot be trusted, was not
only the shipment of arms for the ‘final offensive‘ – an offensive which neither the Governments of El Salvador nor the
United States found irrelevant – but the persistence of the Nicaraguan Government in dissembling about what it actually
had been doing, before January 1981 and thereafter: a persistence which the Nicaraguan Government has maintained in
Court (see, e.g., Roy Gutman, ‘Nicaragua: America's Diplomatic Charade‘, Foreign Policy, Fall 1984, p. 6: ‘Haig's dis-
trust of the Nicaraguans stemmed from their denial of furnishing aid to the Salvadoran guerrillas in early 1981.‘ See also,
Alexander M. Haig, Jr., Caveat, 1984, pp. 88-89, 103, 109, 122-123).
83. For his part, Professor Brownlie offered the following ‘hypothesis‘:
‘The hypothesis concerns a small State and a period of five or six years. In the first year of the five or six-year period
we will assume that there is evidence of arms moving across the frontier of that small State into a neighbouring
State. If it appeared that the Court believed that such a set of facts justified the type of coercion brought to bear by
the United States over a period of four or five years, long after the original hypothetical traffic in arms had ceased,
and that it could justify the massive use of a variety of forms of coercion over that period of four or five years; in my
submission that would be virtually a return to the concept visible in the 1930s in Europe, the diplomacy of provoca-
tion, where some original event is taken as a justification for a long sequence of coercion.‘ (Hearing of 20 September
1985.)
This apparently is an invitation to the Court to excuse the misrepresentations of Nicaragua's officials and to overlook the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 272
prevarication of Nicaraguan policy, and to condone Nicaragua's violations of international law *441 in the period July
1979 to January 1981, particularly on two grounds: (a) Nicaragua's shipment of arms has ceased and (b) because it has
ceased, and because Nicaragua is Nicaragua and the United States is the United States, the United States response is dis-
proportionate, indeed it is the United States which pursues ‘a diplomacy of provocation‘.
84. The fact is that Professor Brownlie's hypothesis is hypothetical; that arms shipments and other support by Nicaragua
of insurgency in El Salvador have not ceased. That is not to say that the question of the proportionality of the United
States response nevertheless is not a genuine question; clearly it is. But what Professor Brownlie's statement adds up to is
another indication by Nicaraguan counsel of the duplicity of the position in Court of the Government of Nicaragua. It is
clearly an inferential admission that, in the earlier period of the events in issue, the Nicaraguan Government did send
arms and other material support to the insurgency in El Salvador.
85. Finally, in respect of the admissions of Nicaraguan counsel, let us look to the closing statement of the Agent of
Nicaragua. That statement begins with what may be seen as a political rather than legal appeal: ‘The cause of my country
is also the cause of all the small nations on earth ... The cause of my country is, and has been, the cause of Latin Amer-
ica.‘ (Hearing of 20 September 1985.) He embroiders that theme with references to ‘mobilizing the force of international
law‘ not as an impartial arbiter between States but as ‘a defence against the innumerable interventions of the United
States in Latin America‘ (ibid.). With respect to what he recognizes to be a critical issue of the case, ‘the question of
arms supplied to El Salvador‘, he reiterates that Nicaragua's position ‘remains the same as it was at the beginning of the
case and as it always has been. We have never varied from that position.‘ He quotes again the affidavit from ‘our Foreign
Minister, Father Miguel D'Escoto‘ who ‘swore‘ that, ‘In truth, my Government is not engaged and has not been engaged
in the provision of arms or supplies to either of the factions engaged in the civil war in El Salvador.‘ He quotes Com-
mander Carrion's sworn testimony that Nicaragua's Government has ‘never‘ had a policy of sending arms to opposition
forces in Central America. He denies that there were ‘several‘ training facilities provided for Salvadoran guerrillas. He
affirms that Nicaraguan counsel have never said anything to the contrary. And then he turns to Mr. MacMichael's testi-
mony, as ‘the one person who has seen all the evidence in the possession of the United States relating to the supply of
arms to the Salvadoran guerrillas during the period of time that is relevant to this case‘.
86. That last sentence calls for two comments. The first is that Mr. MacMichael cannot conceivably be ‘the one person‘
who has seen all of such evidence. Not only is that claim implausible on its face; Mr. MacMichael *442 in Court himself
conceded that Congressman Boland (and presumably other members of the Congressional committees on intelligence)
had seen the very data he had seen: ‘it is my belief‘, Mr. MacMichael testified, that the evidence Congressman Boland
saw ‘was essentially the same evidence that I saw‘ (Hearing of 16 September 1985). Second, the Agent of Nicaragua
takes refuge in the same shelter which Professor Chayes earlier dug: that of ‘the period of time that is relevant to this
case‘. Earlier, the Agent of Nicaragua had maintained that ‘it is of no relevance to discuss happenings five years ago . . .‘
(Hearing of 19 September 1985). These references to a ‘relevant period‘ may, again, be taken as an inferential admission
that, in what Nicaragua deems the ‘irrelevant period‘, it did supply arms to the Salvadoran insurgents.
4. Admissions by leaders of the Salvadoran insurgency
87. Speaking in Managua on 9 April 1983 at the funeral of his murdered Salvadoran comrade, Melida Anaya Montes,
known as ‘Commander Ana Maria‘, at the Commander Ana Maria Revolutionary Square in Managua, the Salvadoran in-
surgent chief, Cayetano Carpio (‘Commander Marcial‘) gave a eulogy before the most senior officials of the Nicaraguan
Government, the FSLN, and Salvadoran insurgent groups. He proclaimed that:
‘The Reagan Administration, which is an enemy of mankind and which threatens the peoples of Central America and
the world, is daily plotting acts of political and military aggression against our peoples.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 273
That is why it is so profoundly moving that at a time of great bereavement like these which our people are experien-
cing, the people of Nicaragua are offering us this comforting solidarity and encouragement to continue the struggle
against the common enemy with much more ardor.
Imperialism is accusing Nicaragua by saying that the leaders of the Salvadoran people are here; the leaders of the
FMLN-FDR. In my opinion this charge was made as if one people's solidarity with another is something to be
ashamed of. However, one thing is evident, the members of the Directorate and all its working teams, some inside
the country and others outside the country, are steadfastly at work fully aware of the need to unite the internal
struggle with international solidarity and with the struggle of all peoples for the liberation of Central America and El
Salvador. That is why we move from one country to another. However, when we are in some other country, they do
not accuse that country of harboring the FDR directorate, for example. I received the blow of this crushing news at a
congress that is currently underway in Libya. From that faraway place, from the *443 deserts of Africa, I immedi-
ately rushed here, trying to get here on time for the funeral services of our late companera.
However, imperialism does not accuse these other countries. It accuses Nicaragua. Why? Because imperialism has
an overall policy against our Central American peoples, who have already risen up irreversibly in a revolutionary
struggle until the final victory.
The Central American peoples' struggle is one single struggle. When he formed his rebel army in the mountains,
Sandino had companeros from all over Central America beside him. And all of Central America fought against im-
perialism in the struggles and accomplishments of the heroic Nicaraguan guerrillas. Our revolutionary leader, Com-
panero Farabundo Marti, was there alongside Sandino.
.............................
The Salvadoran people are tirelessly struggling, but the struggles of our two peoples are not merely the struggles of
El Salvador and Nicaragua. That is why from day to day the Reagan administration is scheming, dealing political
and military blows, aggressions and blockades, and making plans to escalate the aggression not only against El Sal-
vador but also against Nicaragua. Therefore, at a time like this, at a time in history which is one of transition toward
independence for all our peoples, the glorious example that the Nicaraguan people have given us, their warm solidar-
ity in moments of grief, and I am sure also in moments of great joy, when we achieve victory we will be arm in arm
and struggling for the total liberation of Central America.
.............................
The people of El Salvador will thank you from the bottom of their hearts for this recognition to one of our children,
one of our leaders – today, always, at every moment – and for these expressions of solidarity by the people of
Nicaragua. All the Central American nations are experiencing the aggression of U.S. imperialism. We are struggling
against its intervention in every dignified way we can, but we are also aware that all the Central American nations
will become one revolutionary fire if U.S. imperialism carries out its aggressive plans against Nicaragua or El Sal-
vador.
.............................
You can rest assured that we will fight to the end for the victory of all Central American nations, which deserve to
rule their own destinies. On behalf of the FMLN and the FDR, and especially on behalf *444 of the companeros of
the Farabundo Marti people's liberation forces, I tell you dear friends, embraced in the same struggle, thank you very
much. Until the final victory! Revolution or death! (FBIS, Central America, 11 April 1983, pp. 8-9.)
88. The Sandinista communique read out at the funeral service, addressed to the Salvadoran insurgent forces, read:
‘Brothers: The death of Commander Ana Maria, deputy commander of the Salvadoran FPL and member of FMLN's
DRU, has been a deep blow to the hearts of Nicaraguans. Commander Ana Maria had represented the interests of her
people ever since she assumed leadership of the teachers' struggle and joined the armed struggle of the glorious Sal-
vadoran people. She managed to be at the same time voice and rifle, missionary and fighter. She represented well the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 274
interests of the revolution and contributed remarkably to the unity and development of the Salvadoran people's
struggle. Her death brings mourning to the Nicaraguan flag and the hearts of Central Americans and comes at a time
when imperialism's ferocity against El Salvador and Nicaragua has been multiplied. Her death comes when imperial-
ism has launched war against our people. Ana Maria's death, however, is not merely another demonstration of the
unlimited cruelty of our enemies. It is also an additional powerful reason for the peoples' anger to turn into determin-
ation and victories.
The FSLN National Directorate, on behalf of the Nicaraguan people, expresses its most fervent solidarity to the com-
paneros of the FMLN DRU, the FDR, the FPL, the Salvadoran people, and particularly to our companero, Salvador
Cayetano Carpio, Marcial.
Our peoples are invincible, because they are revolutionaries. Long live the heroic struggle of the Salvadoran people!
[Crowd answers: Viva!] Long live the immortal memory of Commander Ana Maria! [Crowd answers: Viva!] Free
fatherland [Crowd answers: 'Or death'!] [Signed] FSLN National Directorate.‘ (Ibid., p. 11.)
89. Within a few days, Cayetano Carpio was reported to have committed suicide in Managua, apparently because of the
fact that his supporters (not the CIA as initially charged) had murdered Melida Anaya Montes, and, it is alleged, because
of pressures exerted upon him by the Nicaraguan Government (see the account by James Le Moyne below, para. 188).
His funeral was attended by the most senior officials of the Nicaraguan Government.
90. It may be observed that, in answer to a question put by me, the Agent of Nicaragua transmitted to the Court the fol-
lowing statement in a letter of 26 November 1985:
‘2.1. Melida Anaya Montes arrived in Nicaragua as a refugee approximately one month before her death; she did not
establish *445 residence in Nicaragua and there is no record of her occupation while in Nicaragua. Cayetano Carpio
arrived in Nicaragua after Melida Anaya Montes' death in order to attend her funeral; he did not establish residence
in Nicaragua and he had no occupation during the few days he was in Nicaragua.
2.2. Melida Anaya Montes and Cayetano Carpio were associated with the insurgency in El Salvador.‘
This statement may be compared with Christopher Dickey's account of the murder of Melida Anaya Montes by followers
of Cayetano Carpio. He observes that ‘home to a frail Salvadoran lady‘ who wassecond-in-command of the largest single
faction of the Salvadoran guerrilla front was a house in Managua; he indicates that he interviewed her there in November
1981 (loc. cit., pp. 212, 304). ‘On April 6, [1983] Ana Maria was murdered in her pleasant Managua bungalow.‘ (P. 213.)
Dickey's account continues:
‘When word of the killing got out, Tomas Borge and Lenin Cerna, the head of State Security, held a press confer-
ence. Cerna himself was named to head up the investigation. And Borge quickly deduced what its results would be.
The murder, he said, put Nicaragua in the difficult position of admitting that a member of the Salvadoran guerrilla
directorate was resident in Managua. It seemed to confirm the charges constantly made by the Reagan administration
that the Sandinistas were supplying command and control facilities to the Salvadorans. So, who else could have
killed Ana Maria but the CIA? Who else would be so brutal?
'I do not need to present specific proof', said Borge. 'I do not need to say: ‘Here is the murderer,‘ because everyone
knows who the murderer is.’
But Ana Maria's followers among the Salvadoran guerrillas were not so sure. They knew the bitterness of Marcial.
They urged Borge to press harder on the investigation. After two days a servant in Ana Maria's house confessed her
complicity to the Sandinista police. The sound of the screams haunted her and would not let her sleep, she told them.
She implicated other conspirators and the path quickly led to the closest friend and confidant of Marcial himself.
And the implication, even indirect, of Marcial as the author of the murder was more humiliating for the Sandinistas –
and for Borge especially – than anything the CIA could have devised.
But as the evidence came out, and Marcial's lieutenant confessed unrepentantly to doing what was necessary to save

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 275
Marcial's ideals, Marcial not only refused to acknowledge any role in the crime, he accused the Sandinistas – even
Tomas Borge – of plotting against him. Old and sick, he was still defiant.
*446 On April 12, Marcial died at his own house in Managua.‘ (Pp. 213, 214. The quotation of Commander Borge is
from his statement at a press conference.)
Dickey notes that Cayetano Carpio's farewell letter to his followers was discussed by him ‘with FMLN officials in Man-
agua in June 1984‘ (p. 304). He records that he ‘interviewed Salvadoran guerrilla and opposition leaders obviously resid-
ent in Managua in November 1981‘ (p. 290).
91. The letter of the Nicaraguan Agent of 26 November 1985 states that:
‘The Government of Nicaragua has permitted, and continues to permit, Salvadoran refugees whether or not they are
associated with the insurgency in that country, to enter Nicaraguan territory . . . Nicaragua is not the only country
that allows Salvadorans who may be associated with the insurgency there to enter its territory . . .‘
and concludes that:
‘it would appear senior representatives of the Salvadoran insurgency have spent more time, and undertaken more
political activity, in the United States than Nicaragua‘.
While the accuracy of that latter statement cannot be judged, the reiterated contention in this letter that Nicaragua ‘has
never permitted Salvadoran insurgents to establish a headquarters ... in Nicaraguan territory‘ may be compared with
Dickey's reporting. If Melida Anaya Montes, resident in Managua, was second-in-command of the largest faction of Sal-
vadoran guerrillas, and her effectively displacing Cayetano Carpio – whose home also was in Managua – as commander-
in-chief was a cause of her murder (see Christopher Dickey, ‘Salvadoran Rebel Intrigue‘, the Washington Post, 27 June
1983, and Stephen Kinzer, ‘Salvador Rebels Revile Late Chief‘, the New York Times, 14 December 1983), where was
the head-quarters of the Salvadoran Popular Liberation Forces other than his or her Managua residences or working quar-
ters? (See also para. 188 below.)
92. In 1982, the New York Times reported, as a result of an extensive series of interviews with guerrilla leaders and oth-
ers by one of its most experienced Latin American correspondents, Alan Riding – whom the representative of Nicaragua
in the Security Council referred to as ‘the well-known American correspondent and specialist in Latin American affairs
...‘ (S/PV.2423, p. 38) and as ‘an American source well versed in the region‘ (ibid., pp. 39-40) –that:
‘The five guerrilla groups that are fighting to topple El Salvador's *447 civilian-military junta are headed by Marx-
ists ... In scores of interviews in Mexico and Nicaragua, senior rebel commanders . . . acknowledge that, in the past,
they received arms from Cuba through Nicaragua, as the Reagan Administration maintains ... the guerrillas now con-
cede, Cuba agreed to supply them with the necessary armaments – many of them trans-shipped through Nicaragua –
to enable them to open their 'final offensive’ on January 10, 1981, just days before President Reagan took office. The
guerrillas say that the supply of arms from Cuba has since been halted ... Nicaragua has become a useful meeting
place [for guerrilla commanders], but they also appear frequently in Mexico and Panama for talks with foreign diplo-
mats and politicians.‘ (Alan Riding, ‘Salvador Rebels: Five-Sided Alliance Searching for New, Moderate Image‘, the
New York Times, 18 March 1982, pp. 1, 16.)
93. The Los Angeles Times contains the following account:

‘El Salvador's leftist guerrilla movement boasted Sunday of its close ties to Cuba and Nicaragua and declared that it
sees its struggle against the U.S.-backed government in San Salvador as part of a wider regional conflict ...
The broadcast, transmitted from a secret location in neighbouring Nicaragua – whose Marxist-led Sandinista regime
has allowed the Salvadoran guerrillas to establish their headquarters in Managua – also boasted that the rebels have
imported arms 'through all routes that we could' and that 'we have used all of Central America and other countries'
for that purpose.
The broadcast appeared to support charges made by the Reagan Administration that the insurgency is at least encour-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 276
aged and armed, if not directed, by the Soviet Union, Cuba and Nicaragua and is aimed at toppling one moderate
government after another throughout the region.‘ (‘Salvadoran Rebels Brag of Cuban Ties‘, Los Angeles Times, 13
March 1983.)
94. The Washington Post of 14 March 1983 carried a similar dispatch by Christopher Dickey from San Salvador:
‘El Salvador's guerrillas, in a defiant response to President Reagan's speech last week urging an expansion of the
U.S. commitment to the government they are fighting, have reaffirmed their determination to maintain ties in Cuba
and Nicaragua.
In a broadcast last night, they also threatened 'within the context' an 'open regionalization' of their war if the Reagan
administration continued to broaden its support for the faltering Salvadoran government.
In a broadcast over their clandestine Radio Venceremos, the rebels said: ' We are and will continue being friends of
the people and *448 governments of Cuba and Nicaragua, and it does not shame us. Completely to the contrary, we
are proud to maintain relations with those people – bastions of the anti-imperialist struggle. The Reagan administra-
tion is not one to tell the FMLN [Farabundo Marti National Liberation Front] who ought to be its friends and who its
enemies.' The statement made no effort to deny receiving Cuban and Nicaraguan support as the rebels have in the
past ...
The rebels' broadcast defended their 'right' to get arms anywhere. While insisting that their main headquarters are in-
side the country, along with their radio transmitter they admitted to having 'important missions' outside El Salvador.
'We have carried out important logistical operations of a clandestine character with which we have armed and muni-
tioned our forces for a long time. We have carried out these operations by all the courses we could, and we have used
all Central America and other countries for them', the broadcast said.
As Washington has raised its commitment in the region during the past month, the Nicaraguans also have reaffirmed
their close ties, if not their concrete material support, with the Salvadoran rebels.
The Sandinista leaders in Managua feel under mounting pressure from a rebellion that reportedly receives covert
funding from Washington on the basis that such action helps 'interdict' arms supplies to the Salvadoran guerrillas.
Speaking March 3 at a funeral for 17 adolescent Sandinistas killed by counterrevolutionaries, Nicaraguan Command-
er Bayardo Arce warned that his party's 'internationalism will not bend' and that 'while Salvadorans are fighting to
win their liberty Nicaragua will maintain its solidarity'.‘
95. The New York Times of 19 May 1985 carried the following report from El Salvador under the title ‘Salvador Puts
Guerrillas on the Defensive‘:
‘Two weeks ago, the army ambushed and captured a senior rebel commander, Nidia Diaz, who was reportedly carry-
ing important documents. Another senior commander, Napoleon Romero, who says that he surrendered, reported in
an interview last week that the insurgents were having difficulty drumming up support. (There was a failed rebel ef-
fort last fall to recruit new fighters forcibly.) Speaking with a Government official present, Mr. Romero added that
the insurgents had also suffered shortages of supplies. Cuba and Nicaragua, he contended, provide 70 percent of the
guerrillas' bullets and explosives. The rebels' general staff works inside El Salvador, he said, *449 but each of the
five military factions maintains offices in Managua. Mr. Romero's senior rank in the Popular Liberation Forces has
been confirmed by other rebels, but his observations may have been colored while in custody, a period of more than
a month.‘
96. The documents referred to in the foregoing article, seized when Salvadoran Government forces captured Nidia Diaz,
reportedly the most senior rebel commander ever captured by Government forces, are the subject of a long analysis in the
New York Times of 21 May 1985, page A11, by James Le Moyne. The documents, he writes, ‘appear to represent virtu-
ally the entire archive of the Revolutionary Workers Party‘ of which Miss Diaz is ‘a top official‘ and various details
‘appear to support the authenticity of the documents‘. Among the points indicated in the documents are:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 277
– Salvadoran rebels consider Nicaragua their closest ally;

– Salvadoran guerrillas are attending courses in the USSR, Viet Nam and Bulgaria;
– The Sandinistas appeared ready to cut off aid to the Salvadoran rebels at the end of 1983 and may have
done so, at least temporarily;
– Jose Napoleon Duarte is the rebels' ‘principal and most dangerous enemy‘;
– Salvadoran rebel officials, resident in Nicaragua, briefly left Nicaragua in November 1983; at that time, a
document notes, and Sandinistas were about to expel the rebels from Managua and ‘definitely cut off sup-
plies‘ in response to Sandinista fears of attack by the United States. The Salvadorans sought the intercession
of ‘Fidel‘;
– If the United States were to invade Nicaragua, the Salvadoran rebels would fight in the Sandinista Army;
in that event, the Nicaraguans could no longer ‘be protecting supplies‘ to the Salvadoran rebels and most
rebel officials living in Managua would have to leave;
– The Salvadoran guerrillas should stress their desire for unity with the Nicaraguans, which called for ‘the
most intimate co-ordination in a concrete manner on all political, military, propaganda and diplomatic
fronts‘.
One of the documents, from the five top Salvadoran rebel commanders to the Sandinista National Directorate of 10
November 1983, calls on the Directorate to provide the Salvadoran rebels ‘new and audacious forms of aid . . . We thank
you for all the aid you offered and hope it continues *450 because it is indispensable to defeat whatever form of invasion
on Central American soil.‘ These admissions of leaders of the Salvadoran insurgency inculpating Nicaragua, which relate
to 1983 and later, must be added to the extensive and profoundly inculpatory admissions of leaders of the Salvadoran in-
surgency and of leading Communist States reflected in the documents captured in 1980 and 1981, from which excerpts
are quoted in paragraph 20 of this appendix.
97. The New York Times of 18 November 1985, page A15, reported a public, 20-page proposal signed by the most seni-
or commanders of the Farabundo Marti National Liberation Front, which called for the end of United States
‘intervention‘ in El Salvador, suspension of the Constitution, formation of a transitional government including the rebels,
merger of the rebel and government arimes, and elections. The article concludes:
‘In a new twist on previous proposals, the rebel document acknowledges that the guerrillas receive some outside as-
sistance and offers to stop this if the Government also stops receiving outside aid.‘
5. Statements by defectors
98. The evidential weight to accord to the statements of defectors is open to debate. In its arguments, Nicaragua relied
heavily on the affidavit of Edgar Chamorro, a defector from the contras, on whose affirmations the Court also relies. Mr.
MacMichael, in explaining the basis of his conclusion that, in the period mid-1979 through January 1981, the Nicaraguan
Government had been sending arms to Salvadoran insurgents, gave weight, among other things, to testimony of defectors
(Hearing of 16 September 1985). While elsewhere, Mr. MacMichael questioned the reliability of testimony of defectors,
he readily recognized that a defector in the hands of United States authorities had nothing to fear if his revelations ran
counter to what the United States might wish him to say (ibid.).
99. The testimony of one such defector was submitted to the Court in an Annex 46 to the Counter-Memorial of the
United States. Michael Bolanos Hunter, a former guerrilla leader and officer of the Nicaraguan Ministry of the Interior,
made a large number of revelations which, if true, show that the Nicaraguan Government has been engaged in efforts to
overturn neighbouring governments including that of El Salvador. Thus, Mr. Bolanos claims in the interview published
in the Washington Post which appears as Annex 46 that:
‘Planning and training for the spectacular and damaging raid by leftist guerrillas in nearby El Salvador on the Sal-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 278
vadoran government *451 military air base at Hopango in January 1982 was centered eight miles from Managua in a
Nicaraguan facility under the supervision of a Cuban adviser. This account, which Bolanos said he learned from the
Cuban adviser, illustrates the extensive support Bolanos said Nicaragua gives to the rebels fighting against the
U.S.-backed government in El Salvador.‘
100. A more detailed account of Mr. Bolanos' allegations appeared in the Washington Post of 19 October 1983, page A
15, ‘Defector: Salvadoran Rebels Closely Tied to Sandinistas‘. That article read as follows:
‘Top commanders of the leftist rebels fighting the U.S.-backed government of El Salvador are frequently in Man-
agua, Nicaragua, where they are in constant touch with Sandinista officials about questions of arms supply, strategy
and tactics, according to a defector from the Nicaraguan counterintelligence agency.
Miguel Bolanos Hunter, echoing charges long made by the Reagan administration, said Nicaragua has been provid-
ing guns, advice, coordination and training to the guerrillas in El Salvador since they began trying to overthrow the
government there in 1979.
However, 'a river' of arms shipments from Cuba and the Soviet Union through Nicaragua to El Salvador has all but
stopped, Bolanos said, because 'they now have five times more than what we had against ousted dictator General
Anastasio Somoza'.
Bolanos claimed that Nicaragua has become 'a new Cuba' in training guerrilla forces from throughout Latin America.
As a Sandinista official charged with working against the U.S. Embassy, Bolanos said, he met visiting guerrilla lead-
ers from Colombia, Argentina, Chile, Guatemala, Costa Rica and El Salvador, all of which have centers of operation
in Managua.
The Salvadorans have two houses in Managua's residential Las Colinas district, one a communications center and the
other a 'safe house' for visiting Salvadoran guerrillas and for meetings with Nicaraguan officials, Bolanos said.
Visiting Salvadorans also use houses belonging to Nicaraguan officials, and some of the guerrilla chiefs are in Man-
agua more than they are in El Salvador, he continued. 'They fly over to the mountains for a day to boost the morale
of the troops and fly out again at night sometimes', he said.
Nicaragua is better than Cuba as a training base for guerrillas *452 because it has regular commercial air transport
and permeable borders, while Cuba's island status makes it hard for guerrillas to come and go without being spotted,
he said.
Bolanos said he had fought during the 1979 Sandinista takeover of Managua with a Salvadoran known as 'Memo',
who then returned to El Salvador and became second in command of the guerrilla units fighting in Morazan province
in northeastern El Salvador. Bolanos said he encountered Memo in Managua last October, 'and he said they were us-
ing the same methods to get arms as we used in Nicaragua'.
These methods, Bolanos continued, included twice-daily airplane flights to barricaded sections of highway in guer-
rilla-controlled areas. Each plane carried 30 to 40 guns, he said, and medicine and ammunition often were dropped
by parachute, while other arms came concealed in trucks or overland on mules.
His cousin, Miguel Guzman Bolanos, is in charge of arms distribution in Nicaragua, Bolanos said, and told him that
Luis Carrion, a member of the Sandinista directorate, had been promised in a 1980 trip to the Soviet Union that the
Soviets would provide the Nicaraguans two AK47 machine guns for every weapon they gave the Salvadoran guerril-
las. Those included U.S.-made guns the Sandinistas obtained from Cuba, which in turn got the guns from Vietnam,
Bolanos said.
.............................
Bolanos described the aftermath of the murder in Managua last April 6 of Salvadoran guerrilla leader Melida Anaya
Montes, which he said occurred across from the house from which Bolanos' agents were watching the nearby resid-
ence of a U.S. Embassy political officer. Bolanos' superior, Lenin Cerna, a director of the Interior Ministry's depart-
ment of state security, accused the Sandinista party's foreign affairs head, Julio Lopez, of having failed to guarantee

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 279
the guerrilla leader's security and of failing to let Cerna know about the arrangements.
Montes was betrayed to her killers by her cook and one of her security guards, Bolanos said, and was killed for 'polit-
ical reasons – she was just back from Cuba and wanted to have more dialogue between the guerrillas and the Sal-
vadoran government'.‘
101. A second notable defector is ‘Comandante Montenegro‘, a figure whose importance Mr. MacMichael acknowledged
(Hearing of 16 September 1985). A pertinent article from the New York Times is republished *453 in Annex 48 to the
United States Counter-Memorial. Arquimedes Canadas, known as Commander Montenegro, was one of the most suc-
cessful guerrilla leaders of the Salvadoran insurgents, most of the Salvadoran air force having been destroyed on the
ground in an operation led by him. In an interview in Washington in 1983, Mr. Canadas said that, before 1980, the insur-
gency in El Salvador was largely ‘nationalistic‘. Since then, he contends, Cuba has ‘directed the activities‘ of the insur-
gency, whose immense destruction of the economic infrastructure of El Salvador he describes. In respect of the destruc-
tion of the Salvadoran air force, he is quoted as declaring:
‘'The seven soldiers that carried out the operation were trained for six months in Havana’, Mr. Canadas said. 'In Oc-
tober, when I was in Managua, Villalobas had put me in charge of the mission.' Joaquin Villalobas leads the People's
Revolutionary Army.‘ (‘Cuba Directs Salvador Insurgency, Former Guerrilla Lieutenant Says‘, the New York Times,
28 July 1983, p. A10.)
Explaining his defection after his arrest, he said that he had made known his dissatisfaction: ‘that the process was being
transformed and manipulated by other interests, the Cubans and Nicaraguans‘. The report continues:
‘Mr. Canadas said he grew aware of Cuba's involvement in mid-1980 when the Farabundo Marti National Liberation
Front was set up as the umbrella organization for Salvador's guerrilla groups, including the People's Revolutionary
Army. Overseeing the front was a supreme executive body, the Unified Revolutionary Directorate, or D.R.U., that
was formed, he said, at a secret meeting in Havana.
'From the political and military point of view, all the decisions that the D.R.U. took – from the strategic sense, from
the military sense – were done in co-ordination with the Cubans', he said.
For example, in November 1980, when guerrilla leaders met in Havana, 'the military plan for the final offensive in
January '81 was authorized by the Cubans', he said.‘
Mr. Canadas adds:
‘By June 1980, Mr. Canadas said, after guerrilla leaders, not including him, went to Havana, 'arms began coming in
and the commanders after that meeting did not return to Salvador’. He said that was then the leaders moved their op-
erations to Nicaragua.
'They never returned,' he said 'with the exception of Villalobas, who was the last one to leave Salvador February '81.'
*454 'Before that we did not have much arms coming in', he said. 'After that the majority of arms was given by Viet-
nam, American M-16s. The arms came from Vietnam to Havana. Havana to Managua. Managua to Salvador.'‘
He concludes by reporting the following about meetings in Managua:
‘Three months later, in October, he said, the same group of Salvadorans and Cubans met in Managua. 'We examined
everything that had been done since July,’ he said. 'We analyzed the taking of Villa el Rosario in Morazan. It was a
village occupied by the guerrillas. It showed how much we had advanced. As far as the central front, they indicated
that the sabotage of the electric power and telephone lines was not enough, not sufficient. We had to make greater ef-
forts in these activities.'‘
102. In 1984, Commander Montenegro gave a further interview, which was published in the New York Times (and re-
published in the Counter-Memorial of the United States, Exhibit 49). It was to this interview, given ‘almost two years
after his capture‘, that Mr. MacMichael addressed questioning comments at the oral hearings (Hearing of 16 September
1985). The New York Times story contains significant detail and merits reproduction in extenso:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 280
‘A Former Salvadoran Rebel Chief Tells of Arms from Nicaragua

A former Salvadoran guerrilla commander who was captured in Honduras said today that virtually all the arms re-
ceived by the guerrilla units he led came from Nicaragua.
The former guerrilla, Arquimedes Canadas, known in the rebel movement as Comandante Alejandro Montenegro,
also bolstered the Reagan Administration's disputed assertions that Salvadoran guerrillas have their headquarters in
Nicaragua by saying that he went there secretly in 1981 and met with his top commander, the Nicaraguan Army
Chief of Staff and four Cuban advisers.
Mr. Canadas said in an interview that in 1981 and 1982 guerrilla units under his command in San Salvador and north
of the city received '99.9 per cent of our arms' from Nicaragua.
This contradicts what several guerrilla commanders, including Mr. Canadas, said in interviews at their mountain
base near Guazapa volcano in February 1982.
Armed with American-made M-16 rifles, the Salvadoran guerrilla commanders said their weapons were either cap-
tured from Government forces, bought on the black market or purchased directly from *455 Salvadoran Government
officers. Only one admitted having gone to Nicaragua and none said they had been to Cuba.
Meetings in Cuba and Managua
But today, Mr. Montenegro said through an interpreter that he had been under orders from his guerrilla commander
in chief to give false information in 1982 by saying that the arms were captured or purchased when in fact they had
come from Managua by truck across Honduras into El Salvador.
In a three-hour interview Tuesday night, Mr. Canadas, who was captured in August 1982 by Honduran Army units in
Tegucigalpa while he was en route to Nicaragua, said he had gone to Cuba once and to Managua twice to meet with
Joaquin Villalobas, commander in chief of the People's Revolutionary Army.
The P.R.A. is the largest of five guerrilla forces linked together under the Farabundo Marti Liberation Front.
.............................
Monthly Arms Shipments
In the interview, Mr. Canadas said that in 1981 and 1982 urban commandos and 200 guerrillas under his command
in Guazapa received monthly arms shipments from Nicaragua that were trucked across Honduras, hidden in false
panels and floors. He said the trucks moved through the normal customs checkpoint of Las Manos at the Nicaraguan
border with Honduras and the checkpoint of Amantillo at the Honduran border with El Salvador.
Each truck, he said, carried roughly 25 to 30 rifles and about 7,000 cartridges of ammunition. The rifles, he said
were American-made M-16s captured in Vietnam and FAL rifles formerly used by the Nicaraguan Army under So-
moza.
Sometimes the trucks arrived without refles and carried just ammunition and in that case, he said, a typical load
would include up to 15,000 cartridges, Soviet-made grenades, and explosives like TNT for sabotage attacks against
Government installations.
Since the time of his capture, American officials have said that Honduran authorities put on major efforts to halt the
relatively open flow of arms traffic on Honduran highways. American military officials have now contended that the
outside arms flow comes from Nicaragua on nighttime air drops or in canoes or power boats operating in the Pacific
coastal waters between Nicaragua and El Salvador.
Mr. Canadas said his one visit to the Salvadoran guerrilla command *456 post in Nicaragua came in October 1981
when he was summoned by Mr. Villalobas, regarded by Salvadoran Army officers as the shrewdest and most import-
ant guerrilla commander.
'I don't know exactly where it was because I was taken there blindfolded,' he said. 'We went perhaps 15 minutes on

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 281
the highway south of Managua where we changed vehicles. Then we went another 10 or 15 minutes. We came to a
very large private home with a very large garden with metal benches.'
'To the right of the main entrances was an office where Villalobas worked', he went on. 'Further in the house was a
large room where the commanders of the other guerrilla groups met and where the Cubans and Sandinistas came.
There were four Cubans there.'
He added: 'We had one meeting about two hours long one night with the Sandinista Army Chief of Staff Joaquin
Cuadra.'
'Cuadra spoke almost entirely about the Nicaraguan situation. And they were interested to know what kind of rebel-
lion was taking place in El Salvador, a peasant rebellion or all elements of the population. In Nicaragua, they said, it
had been all elements. But the meeting was not to discuss aid. By that time, aid had reached its peak.'‘ (‘A Former
Salvadoran Rebel Chief Tells of Arms from Nicaragua‘, the New York Times, 12 July 1984.)
103. A comparison of the text of this interview with Mr. MacMichael's comments on it fails to shake Commander
Montenegro's claims. First, Mr. MacMichael confirms the truth of the capture of Montenegro in the circumstances re-
counted in the press. Second, Mr. MacMichael says that, in 1982, he had access to the results of Montenegro's initial in-
terrogations. ‘At that time,‘ Mr. MacMichael says, ‘he made no mention of arms.‘ This is Mr. MacMichael, speaking
without notes, in 1985, confidently recalling that a report he read three years before ‘made no mention of arms‘ (Hearing
of 16 September 1985). (Mr. MacMichael could not have refreshed his three-year old recollection by reference, before
the hearing, to an account of Montenegro's debriefing or his notes thereon, since his retention of any such papers would
be illegal.) Rather, Mr. MacMichael recalled, ‘much of the object of his interrogation had to do with his leadership of the
raid‘ on the Salvadoran airfield (ibid.). Mr. MacMichael confirms that, before his capture, Montenegro claimed that the
guerrillas' arms were purchased or captured (as Montenegro explained in his published interviews), and Mr. MacMichael
observes that his statement made two years later came after a time during which he had been ‘in the hands of very skilled
interrogators‘ (Hearing of 16 September 1985). Mr. MacMichael says he is not able to judge which story is correct. But
he does *457 acknowledge that, in American hands, Montenegro could speak freely with no fear of retribution. Could the
same be said of what he dared say when a guerrilla commander in the field?
104. A third defector whose allegations have recently been published is Alvaro Jose Baldizon Aviles, referred to in para-
graph 28 of this Appendix. His contentions largely concern allegations of violations of human rights in Nicaragua by
Nicaraguan forces and by agents of the Nicaraguan Government. Some of the objects of those alleged assassinations and
other atrocities were victimized in the course of hostilities (such as dissident Indians). Of pertinence to the question of
support by the Nicaraguan Government of foreign insurgency (they relate to Costa Rica rather than El Salvador) are the
following passages of Baldizon's statement:
‘In March 1983, a group of approximately 45 members of the Costa Rican Popular Vanguard Party (PVP) were train-
ing for guerrilla warfare on the property of the African Oil Palm Cultivation Project near El Castillo in southern
Nicaragua . . . The chief of the Costa Ricans, 'Ramiro’, was approximately 40 years old, was about 5' 9" tall, had
white skin, black hair, and wore a full beard. He was always accompanied by a First Lieutenant of the Nicaraguan
Army . . . The rest of the Costa Ricans were located about 12 kilometers away on a hill called El Bambu on the San
Juan River, in the Costa Rican border area. Their activities were controlled from the headquarters by two-way radio
communications.
The Costa Ricans, who justified their presence in El Castillo by claiming to be workers on the African Palm Project
and members of a military reserve battalion comprised of project workers, were there for six months. They were then
to return to Costa Rica and be replaced by another group for another six months. Some of the troops carried FAL
rifles with telescopic sights and were being trained as snipers to kill the San Juan River boatmen who transport and
supply the Nicaraguan anti-Sandinista insurgents. The Sandinistas were conducting this training because they

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 282
reasoned that there are only a limited number of boatmen who know the river well and they would be hard for the
anti-Sandinistas to replace.‘ (Inside the Sandinista Regime: A Special Investigator's Perspective, Department of
State, 1985, pp. 25-26.)
105. Revelations by a fourth defector, and from captured insurgent documentation, are described in still another article in
the Washington Post, ‘New Sources Describe Aid to Salvadoran Rebels; Defector, Captured Documents Indicate
Nicaragua Has Withdrawn Some Support‘, of *458 8 June 1985, page A12 (the documentation apparently being the same
papers captured with Nidia Diaz described in paras. 95-96 above):
‘Nicaragua, Cuba and other leftist countries have played the leading roles in arming and training El Salvador's left-
wing guerrillas since 1980 but gradually have curbed their support since 1983, according to information gleaned
from a recent defector from the rebels, a U.S. study of captured weapons and a stash of captured rebel documents.
U.S. pressure has led Nicaragua's Sandinista government to withdraw some of its backing for the Salvadoran rebels
on several occasions, both by suspending ammunition shipments and by restricting the activities in Managua of the
rebels' Farabundo Marti National Liberation Front, according to these sources.
For example, captured rebel notes and correspondence indicate that Nicaragua cut back assistance following the U.S.
invasion of Grenada in October 1983 in an action that drew strong protests from the Salvadoran guerrillas.
It was unclear from the documents and other information how much aid Nicaragua has been contributing in recent
months, but ammunition shipments appear to have dropped substantially. The defector, a former political and milit-
ary commander, said he was aware of only two deliveries this year.
The newly available sources offer a broad portrayal of the history of external support for the Salvadoran rebel front,
known by the Spanish initials FMLN. While some have questioned the reliability of the defector's account and of the
documents, the new data tended to confirm descriptions provided for the past two years by U.S. and Salvadoran offi-
cials.
'The embassy's position is, damn it, we told you so', a senior U.S. official said.
The government and the U.S. Embassy said the documents were seized April 18 with prominent rebel commander
Nidia Diaz, who was a member of the guerrilla delegation at the peace talks in the town of La Palma last October.
Salvadoran authorities have refused her requests to meet with reporters since her capture.
The FMLN has charged that the documents are forgeries.
According to the portrayal of support for the guerrillas gleaned from the sources, leftist nations initially contributed
6,000 to 7,000 automatic rifles plus mortars and grenade launchers from 1980 to early 1983. These arms are de-
scribed as having arrived from Nicaragua by clandestine means, mostly in small planes or overland through Hondur-
as.
*459 Cuba, the Soviet Union, Vietnam, Bulgaria and East Germany have trained a steady stream of guerrilla leaders
in military and political work, by this collective account. The FMLN's general command met regularly in Managua
in the early 1980's.
Since roughly two years ago, however, foreign military assistance has consisted primarily of ammunition and explos-
ives, and it increasingly has arrived by sea.
'Most people agree that the big arms imports stopped in 1982', the senior U.S. official said.
Shipments appear to have dropped off for three reasons: because they were not needed, because of U.S. pressure on
Nicaragua and because of the Honduran armed forces' breakup of much of the FMLN's clandestine support network
in Honduras during 1982 and 1983.
The Sandinistas also began to pull back the welcome mat in Nicaragua in mid-1983, according to the defector. At
that time, the FMLN's general command was forced to transfer its meetings to rebel-dominated territory in El Sal-
vador after Nicaragua was embarrassed by the murder of a senior Salvadoran rebel commander in Managua in a fac-
tional dispute, he said.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 283
The issue of Nicaraguan and other outside aid for the Salvadoran rebels has been a central feature of the U.S. debate
over Central America. The administration repeatedly has asserted that Nicaragua was 'exporting revolution', and it
used this charge specifically to justify organization and financing of the rebel force now fighting to overthrow the re-
volutionary Sandinista government in Managua.
Critics of U.S. policy have said the administration lacked adequate proof of a steady, substantial flow of military aid
to the guerrillas since their failed 'final offensive' in January 1981. Despite a high-priority effort, no arms shipment
in progress from Nicaragua has been intercepted.
Salvadoran rebel leaders and Nicaraguan officials have offered cautious and sometimes conflicting responses to the
U.S. charges. The Salvadoran rebels have admitted, for instance, that they smuggle weapons and ammunition via
Nicaragua but have said they obtained the arms on the international market and not from the Sandinista government.
Nicaragua has acknowledged giving diplomatic and moral support to the guerrillas while denying that it was ship-
ping ammunition.
The defector – whose real name is Napoleon Romero, but who often is known by his nom de guerre, Miguel Castel-
lanos – said that about 70 percent of the FMLN's automatic rifles came from abroad and that the rest were captured
from the Salvadoran armed forces. *460 While some of the foreign-supplied weapons were purchased on the interna-
tional market, he said, most were supplied by friendly governments.
Romero, 35, was commander of the San Salvador front for the Popular Liberation Forces, one of the two largest of
the five guerrilla forces in the FMLN, until his defection in early April. He said in a 90-minute interview that he had
become disillusioned with the revolutionary movement during the past year because of its violence and lack of ac-
complishments.
Romero was held by the military for several weeks before being made available to reporters. He is now said to be
living under the protection of the military.
The guerrilla organization has charged that Romero was tortured while in custody and is now lying.
As a defector, Romero has an interest in portraying the FMLN in a bad light, but his articulate responses seemed
frank during the interview. It was conducted in an office of the armed forces' press committee. A Salvadoran major
was present for only brief portions of the interview.
Romero's description of the source of the weapons was bolstered by a U.S. military intelligence survey of serial
numbers of U.S.-made M16 automatic rifles captured from the guerrillas. The survey's results, made available by
U.S. officials, showed that just under 25 percent of the rifles originally were provided to the Salvadoran Army and
thus presumably had been captured by the rebels. Of the remaining rifles, the bulk were said to have been left in Vi-
etnam by evacuating U.S. troops in 1975.
Romero said he believed Cuba was responsible for coordinating much of the international support for the Salvadoran
guerrillas.
'Nicaragua is just the bridge for everything coming from Cuba', he said.
The defector also noted several areas in which leftist countries have not been involved much with the FMLN. For in-
stance, he said that he believed no Cuban or Nicaraguan official advisers or instructors had come to El Salvador to
oversee the guerrillas' fight directly.
In addition, while each of the five factions in the FMLN has its own radio transmitter for direct communications with
its representative in Managua, Romero said, the insurgency is not 'directed' from Nicaragua on a day-to-day basis as
the U.S. government has suggested. FMLN commanders in the field plot their own strategy and tactics, although
they often solicit advice from Nicaragua and Cuba, he said.
The captured documents that have been made public so far show *461 the FMLN's dependence on Nicaraguan sup-
port mainly by revealing the level of concern on the part of the guerrilla organization in late 1983, when the
Sandinistas were pulling back their support. Minutes of meetings, briefing papers and letters show the Salvadoran
guerrilla leadership pressing hard for continued backing.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 284
A two-page list of names of FMLN leaders and foreign training courses that they had undergone or were scheduled
to undergo also showed the involvement of a wide range of Soviet Bloc countries in seeking to build a cadre of Sal-
vadoran revolutionary leaders.‘
106. ‘Revolution Beyond Our Borders‘ contains further details about Mr. Romero's revelations, which throw light on the
continuing supply by Nicaragua of arms and supplies to Salvadoran insurgents in 1983:
‘The flow of supplies from Nicaragua continued at high levels into 1983. According to Napoleon Romero, formerly
the third-ranking member of the largest guerrilla faction in the FMLN who defected in April 1985, his group was re-
ceiving up to 50 tons of material every 3 months from Nicaragua before the reduction in deliveries after the
U.S.-Caribbean action in Grenada. Romero gave a detailed description of just how the logistics network operated.
The first 'bridge’ implemented for infiltration was an air delivery system. Romero stated that arms would leave
Nicaragua, from the area of the Cosiguina Peninsula, for delivery to the coast of San Vicente Department in El Sal-
vador. He described the first such delivery as consisting of 300 weapons infiltrated at the end of 1980 in preparation
for the January 1981 'final offensive'. Romero claimed that air routes were suspended when the Salvadoran Armed
Forces succeeded in capturing a large quantity of arms that cae by air from Nicaragua. It was at this point in 1981, he
continued, that seaborne delivery became – as it continues to be –the primary method of infiltration.
Romero described the sea route as departing from Nicaragua's Chinandega Department or islands (like La Concha)
off its coast, crossing the Gulf of Fonseca, and arriving at the coast of El Salvador's Usulutan Department. Thou-
sands of rounds of ammunition translate into relatively small numbers of boxes, easily transported by man, animal,
or vehicle over multiple routes. The lack of constant government presence, and the relatively short distances from
the coastline to all major guerrilla fronts, reduce the difficulties of providing the guerrillas with certain types of lo-
gistics support from Nicaragua.‘ (Op. cit., p. 11.)
*462 107. Drawing on statements of Mr. Romero and other defectors, ‘Revolution Beyond Our Borders‘ also provides
specific data about the modalities of continuing delivery, as late as 1985, of arms and munitions from Nicaragua to Sal-
vador insurgents, largely by boat and canoe to the Salvadoran coastline, where provisions are picked up and transported
by animals, persons and small vehicles. It maintains that:
‘Napoleon Romero, the former FPL commander, estimated that this supply infrastructure was able to provide some
20,000-30,000 rounds of ammunition per month for the FPL alone. Some 3,000 guerrillas could be provided 100
rounds each (the usual load carried by a combatant), or 1,500 guerrillas could be provided with 200 rounds for a ma-
jor battle. Such a delivery would weigh about 1,300 pounds and be packaged in about 34 metal boxes which could be
easily transported by 15-20 men, six pack animals, or one small pickup truck. Given El Salvador's small size and the
short distances involved, material entering along the Usulutan coastline could arrive at any of the guerrilla fronts in
about 1 week under optimal conditions.‘ (Ibid., p. 11, note 26.)
6. Statements by diplomats of uninvolved countries
108. To the foregoing body of admissions and charges providing evidence of Nicaraguan Government support of foreign
insurgency, particularly in El Salvador, there may be added the opinion of diplomats stationed in the capital of
Nicaragua. When surveyed by the resident correspondent of the New York Times in 1984, the following report resulted:
‘Western European and Latin American diplomats here say the Nicaraguan Government is continuing to send milit-
ary equipment to the Salvadoran insurgents and to operate training camps for them inside Nicaragua.
The United States has been making such charges since 1980. Nicaragua, while not explicitly denying all of the
charges, says its support is 'moral and political'.
The diplomats, including some from countries that have criticized United States policies in Central America, said
military support to the Salvadoran rebels had dropped over the last year, but remained substantial.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 285
No Nicaraguan Comment
At a news conference last week, President Reagan said Nicaragua was 'exporting revolution to El Salvador, its
neighbor, and is helping, supporting and arming and training the guerrillas that are trying to overthrow a duly elected
government'.
.............................
*463 A Salvadoran rebel spokesman in Costa Rica, Jorge Villacorta, said in a telephone interview that the guerrillas
had bought weapons on the black market and from organized crime figures in the United States. He said the arms
had been delivered by way of Nicaragua as well as through Guatemala, Costa Rica and other countries.
'We reject the allegation that Nicaragua is providing us with arms', he said.
But Western diplomats appear to be convinced of the general accuracy of American intelligence reports on the milit-
ary ties between Nicaragua and the Salvadoran rebels.
'I believe support for the revolutionaries in El Salvador is continuing and that it is very important to the Sandinistas',
a Western European diplomat said. 'The Sandinistas fear that if the guerrilla movement weakens in El Salvador, their
own regime will become more isolated and more vulnerable to attack.'
Salvadoran rebel leaders have insisted that they receive only small amounts of aid from Nicaragua, mainly commu-
nications equipment, medicine and some ammunition. They say most supplies are bought on the black market or cap-
tured from Salvadoran Government troops.
A United States Embassy official in San Salvador said today that the rebels' 'pressing need is not for rifles and small
arms'.
Two weeks ago, Fred C. Ikle, Under-Secretary of Defense for Policy, said that roughly half of the arms used by the
rebels were United States supplied arms taken from Salvadoran Government troops. Later the Pentagon said the es-
timate was based on a limited survey in a few rebel areas. Elsewhere, the Pentagon said, the figure is closer to a third
to a quarter.
Sources of Most Rebel Supplies
Mr. Ikle also said the United States believed that 80 per cent of the ammunition and explosives used by the rebels are
supplied from Cuba and the Soviet Union through Nicaragua.
Administration officials in Washington said today that small planes and boats were transporting supplies from
Nicaragua at night. The officials said that command and control of guerrilla operations continued in Managua. In
Mexico City, a member of the rebel movement said little of the command structure remained in Nicaragua.
'All the commanders are now living in Morazan', he said, referring to a province in eastern El Salvador.
.............................
*464 Several months ago, at Nicaragua's suggestion, a number of Salvadoran civilians affiliated with the rebel cause
left Nicaragua in what was described as an effort to remove a possible pretext for American-backed military inter-
vention. However, rebel leaders are believed to visit Managua regularly. Visiting members of Congress have met
here with guerrilla commanders, including Ana Guadalupe Martinez of the People's Revolutionary Army.
Western intelligence reports suggest that aid no longer moves overland through Honduras, but is flown daily by light
planes to makeshift airstrips in guerrilla-held areas of El Salvador.
Some supporters of the Nicaraguan Government have expressed doubts about these allegations and challenge the
United States to produce evidence. Diplomats acknowledge that they have seen no proof, but say they believe that
military ties between Nicaragua and the rebels remain strong.
'Maybe not everything the Americans say is true, but logic and commonsense support their case', said a Hispanic dip-
lomat. 'The Sandinistas' ideology dictates that they help other countries adopt political systems like their own.'
Slogans supporting the Salvadoran rebel cause are often chanted at Nicaraguan rallies, and the press carries almost

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 286
daily reports of rebel victories and of atrocities attributed to the Salvadoran armed forces.
Rebels' Communications Posts
American officials are said to believe that at least four of the five principal rebel groups in El Salvador maintain tele-
communications posts in Nicaragua to transmit instructions to their forces inside El Salvador. They also believe that
some Salvadoran demolition teams have been trained in Nicaragua.‘ (Stephen Kinzer, ‘Salvador Rebels Still Said to
Get Nicaraguan Aid‘, the New York Times, 11 April 1984, pp. 1, 8.)
This article appears as Annex 49 to the United States Counter-Memorial. Nicaragua introduced no evidence in specific
refutation of it.
7. Statements by the Government of El Salvador accusing Nicaragua of assisting insurgency in El Salvador
109. Among the curious contentions of Nicaragua in this case is the claim, found in the Affidavit of Miguel D'Escoto
Brockmann, Foreign Minister of Nicaragua, that:
*465 ‘It is interesting that only the government of the United States makes these allegations, and not the government
of El Salvador, which is the supposed victim of the alleged arms trafficking. Full diplomatic relations exist between
Nicaragua and El Salvador. Yet, El Salvador has never – not once – lodged a protest with my government accusing it
of complicity in or responsibility for any traffic in arms or other military supplies to rebel groups in that country.‘
110. Accusations by El Salvador may not usually have taken the form of diplomatic demarches, but accusations, official
and unofficial, there have been. Thus, in January 1981, during the ‘final offensive‘, President Jose Napoleon Duarte both
denounced Nicaraguan and Cuban intervention and called for the assistance of the United States in meeting it. According
to the Washington Post:
‘Duarte has denounced alleged Cuban and Nicaraguan intervention in El Salvador several times during the last few
days . . . He has also called on U.S. President-elect Ronald Reagan to 'export democracy’ to El Salvador and the
world and to increase aid to the government here, particularly economic aid.‘ (‘Fighting Subsides in El Salvador; 3
Journalists Hurt‘, the Washington Post, 13 January 1981, p. 1.)
111. According to an Agence France-Presse report of 17 January 1981 (FBIS, Central America, 17 January 1981, p. 5):
‘Salvadoran Government junta President Jose Napoleon Duarte today added to the charges of Nicaraguan interfer-
ence in the Salvadoran conflict by displaying a box of rifle cartridges which, he said, is part of the ammunition that
Venezuela gave the Sandinistas to help them overthrow Somoza ...
.............................
[T]he President ... referred to the case of cartridges which, he explained, before being found in the hands of the Sal-
vadoran guerrillas was in the hands of the Sandinist National Liberation Front. The president also referred to the
widely commented landing of foreign fighters on the Salvadoran coast ...
[President Duarte said that] 'the boats seized are of a type that cannot sail on the open seas. With these boats one can
only sail across the Gulf of Fonseca'. The Gulf of Fonseca lies in eastern Salvador, on the Pacific Ocean, and its wa-
ters touch the coasts of both Honduras and Nicaragua.‘
*466 112. According to the San Salvador Domestic Service of 28 January 1981 (FBIS, Central America, 29 January
1981, p. 8), a Nicaraguan-registered Cessna aircraft dropped FAL rifles to a group of guerrillas waiting below. Shortly
afterwards, the aircraft was forced to land, injuring its crew, who were rescued by guerrillas and taken to the guerrilla
camp. The Salvadoran Army, supported by helicopters, found the camp and surrounded it, and won the ensuing battle.
The Nicaraguan Cessna was found destroyed.
113. In the United Nations General Assembly on 12 October 1981, the representative of El Salvador set out President

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 287
Duarte's response to and repudiation of the proposals of the Salvadoran guerrillas which had been placed before the Gen-
eral Assembly by Commander Ortega (see paras. 44-45 of this appendix). President Duarte protested ‘the coarse, abusive
and clearly interventionist manner in which Mr. Ortega approached the internal situation in El Salvador‘ (A/36/PV.33, p.
112). President Duarte was quoted in the General Assembly as condemning the ‘dishonourable ... mission‘ of the Sandin-
ist Government in lending its territory ‘as the base for arms supply, refuge and support for the armed groups and as a
sounding board for their campaigns of false propaganda‘ (ibid., p. 113). Observing that the present Government of
Nicaragua had nothing to teach El Salvador, President Duarte maintained that Nicaragua's effort to ‘turn itself into the ar-
biter of another country's pacification‘ while promoting its own ‘belicose psychosis‘ was ‘a true offence to the con-
science of civilized, peace-loving countries ...‘.
114. On 25 March 1982, El Salvador addressed a letter to the President of the Security Council (S/14727), which drew
attention to ‘the vital need for other States, Nicaragua in particular, to follow El Salvador's example‘ in adhering to the
principle of non-interference. It claimed that Nicaragua was the major cause of increased tension in the area and ob-
served that the so-called ‘solidarity‘ of certain ideological movements could not justify overthrowing the fundamental
principles of international law.
115. In the United Nations Security Council on 30 March 1982, the representative of El Salvador, speaking to one of the
ten complaints of aggression made to the Council by Nicaragua against the United States, all of which allege essentially
what Nicaragua alleges in the current case before this Court, protested that:
‘El Salvador has been the victim of acts of intervention, against the will of the Salvadoran Government, which con-
stitute aggressive behaviour; but in spite of those interventionist and aggressive acts against our sovereignty, in order
to maintain friendly relations with *467 the countries that promote or implement those acts, we have asked that they
put a halt to them but have not presented a formal complaint before the competent international bodies.‘ (S/PV.2341,
pp. 41-42.)
116. On 28 March 1983, the Foreign Minister of El Salvador, Fidel Chavez Mena, charged before the United Nations Se-
curity Council that El Salvador was
‘the victim of – among other belligerent and hostile acts – the continued transfer of weapons, the last link in the
chain being our neighbour republic Nicaragua, which . . . does not practice, and respects even less, the principle
of non-interference in the internal affairs of Central American States‘.
He charged:
‘Everyone is aware that the armed groups operating in El Salvador have their central headquarters in Nicaragua. It is
there that decisions are made and logistic support is channelled – logistic support without which it would be im-
possible for them to continue in their struggle and without which they would have joined in the democratic process.‘
(S/PV.2425, 28 March 1983, p. 7.)
117. In November 1983, Ambassador Rosales Rivera, representative of El Salvador to the United Nations, protested be-
fore the General Assembly that Nicaragua was following ‘an interventionist policy‘. He declared:
‘my country has been the victim, among other warlike and hostile acts, of a continuing traffic in weapons, with
Nicaragua as the last link in the chain. From there orders are sent to armed groups of the extreme left operating
in El Salvador. These groups have their headquarters in Nicaragua and logistic support is channelled through
them.‘ (A/38/PV.49, 10 November 1983, p. 17.)
He quoted pages of detailed data in support of that charge. He added:
‘It would be insane for a Government attacked from outside – such as mine –to remain passive in the face of those
whose foreign policy is reflected in official actions and statements with regard to propaganda, training camps, logist-
ics and training of guerrilla groups, as is the case with Nicaragua. We have reached the point where the Co-ordinator

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 288
of the Sandinist Junta, Commander Ortega, claimed to represent the guerrillas in El Salvador in international forums,
including this one.
*468 Our country was mentioned in Nicaragua's statement yesterday morning, and we should like to register our
protest at the fact that the Sandinist Junta of Nicaragua has arrogated to itself the right to speak of El Salvador. The
fact that a small group of leftist radicals, trying in vain to seize power by violence, has authorized the Sandinist Junta
of Nicaragua to act as its spokesman does not in any way mean that Nicaragua is legally entitled to express opinions
on behalf of the people of El Salvador. The people of El Salvador is represented only by its Government, which was
freely chosen by means of suffrage on 28 March 1982 in an election witnessed by the entire world, thanks to an ex-
tensive press coverage and the presence of many international observers who were invited for that purpose.
Nicaragua's aggression has therefore gone hand in hand with a violation of the principle of non-intervention. In the
face of these clearly aggressive and hostile acts that violate the rights of the people, we cannot fail to repeat our de-
nunciation and condemnation. As long as the Sandinist regime maintains as a pillar of its policy the enthronement of
Marxist-Leninism as a system which should be instituted throughout Central America, seeking to impose it first on
El Salvador and then on neighbouring countries, it will be impossible to maintain peaceful coexistence and a minim-
um of harmony in the region. Once the destabilizing factor has been removed, peace and normalcy will return to the
area.‘ (A/38/PV.49, pp. 23, 24-25.)
118. El Salvador President Alvaro Magana Borga, in an interview with the Spanish newspaper ABC (published in the
United States Counter-Memorial, Exhibit 51), had the following exchange in December 1983:
‘[Question:] Mr. President, how do the guerrillas supply themselves and where from?
[Answer:] Be sure of this: from Nicaragua, and only from Nicaragua. In the past two weeks we have detected 68 in-
cursions by aircraft which parachuted equipment, weapons and ammunition into the Morazan area, which is where
the guerrillas are most concentrated ...
Q.: I would remind you, Mr. President, that one of Lenin's maxims was: ' Against bodies, violence; against souls,
lies.'
A.: Well, they have learned the lesson very well. While Nicaragua draws the world's attention by claiming for the
past two years that it is about to be invaded, they have not ceased for one moment to invade our country. There is
only one point of departure for the armed subversion, Nicaragua.‘
*469 119. In renewed debate on Nicaragua's complaints in the Security Council on 3 April 1984, the representative of El
Salvador declared:
‘only last month the Government of El Salvador sent various protest notes to Managua rejecting the disobliging
statements made with regard to the elections in our country by the President of the Council of State and by the
Minister of Defence. We made a formal protest with regard to the statements of support for the Salvadoran guer-
rilla activities made by Commander Henry Ruiz. The recent statement by the Nicaraguan Minister of Defence
with regard to the laying of sound-activated mines in the region's ports, from Panama to Guatemala, by members
of Central American movements has also been met with a protest from our Government, which has once again
denounced the close linkage in co-ordination and logistics that exists between guerrilla groups and the Sandinist
Government.‘ (S/PV.2528, p. 61.)
120. Jose Napoleon Duarte was elected President of El Salvador in May 1984. In his inaugural address of 1 June, pub-
lished in the United States Counter-Memorial, Exhibit 52, page 6, President Duarte declared:
‘Salvadorans, we must bravely, frankly, and realistically acknowledge the fact that our homeland is immersed in an
armed conflict that affects each and every one of us; that this armed conflict has gone beyond our borders and has
become a focal point in the struggle between the big world power blocs. With the aid of Marxist governments like
Nicaragua, Cuba and the Soviet Union, an army has been trained and armed and has invaded our homeland. Its ac-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 289
tions are directed from abroad. Armed with the most sophisticated weapons, the Marxist forces harass our Armed
Forces and constantly carry out actions intended to destroy our economy, with the loss of countless human lives and
the suffering of hundreds of thousands of Salvadorans.‘
121. At a press conference of 30 July 1984 (the full text of which is found re-printed as Exhibit 53 of the United States
Counter-Memorial), President Duarte began by recounting a trip to Europe in which he had been preceded by President
Ortega. President Duarte charged that in Europe President Ortega had acknowledged that ‘he (Ortega) had helped, is
helping and will continue to help the Salvadoran guerrillas‘. Thus President Ortega revealed that ‘it is he who is openly
and directly attacking and intervening in our country‘ (p. 2). President Duarte continued: ‘I ordered that we lodge a form-
al protest with Nicaragua in this regard.‘ (Ibid.) Furthermore, President Duarte recounts, he ordered that studies be made
of submitting a complaint to the International Court of Justice about Nicaragua's intervention in El Salvador's affairs.
President Duarte continued*470 that: ‘We would not be able to survive without U.S. aid ...‘ He stated that,
‘always provided it stopped its support for the guerrillas, stopped using subversion and exporting revolution to
the rest of Central America, I would be willing to sign a treaty not only with Nicaragua but with any other coun-
try in the world which shows respect, as we do ...‘ (United States Counter-Memorial, Exhibit 53, p. 3).
Duarte continued, in response to other questions:
‘What I have said, from the Salvadoran standpoint, is that we have a problem of aggression by a nation called
Nicaragua against El Salvador, that these gentlemen are sending in weapons, training people, transporting bullets and
what not, and bringing all of that to El Salvador. I said that at this very minute they are using fishing boats as a dis-
guise and are introducing weapons into El Salvador in boats at night.
In view of this situation, El Salvador must stop this ... thus, the contras are creating a sort of barrier that prevents the
Nicaraguans from continuing to send arms to El Salvador by land. What they have done instead is to send them by
sea, and they are now getting them in through Monte Cristo, El Coco, and El Espino. This is because they cannot do
so overland, because the contras are in those areas, in one way or another.
Therefore, you can see that these are two different concepts. My position is coherent. I defend my country. I have
said that I do not want any weapons, ammunition, or supplies of any kind to reach my country, to support guerrillas
in my homeland, and that I am against anything that supports this type of action, either here or there. That is why I
have told the Nicaraguans that I think El Salvador has always respected them and that, therefore, they must respect
El Salvador.‘ (Pp. 4-5.)
Thereafter, the following exchange occurred:
‘Roberto Block, from Reuter News Agency. Mr. President: You have talked many times about Nicaragua's supply of
weapons to the Salvadoran guerrillas, and you appeared at the Congress ... to ask for weapons, for assistance, and to
ask that the contras in Nicaragua cut off this supply. I would like to know exactly what tangible evidence exists that
Nicaragua is sending weapons to El Salvador. If such proof exists, why did you ask that statements be sent to The
Hague, instead of the tangible evidence on these arms supplies from Nicaragua?
[Duarte] ... When a head of state confesses that he is helping guerrillas, he is helping the guerrillas. Therefore, what
better evidence exists than a categorical statement by a head of state? Nothing is more powerful than the confession
he made.
*471 I said all of this to explain that the evidence does exist. There is evidence on all of the beaches. An overwhelm-
ing number of peasants claim that they have seen people enter with weapons, which they load on horses, and leave
for the mountains. What you want is to see them for yourself. Well, I invite you to go to the beches and watch, at
night, how they unload the weapons. I am going to give you a specific place, Montecristo Island. They are constantly
unloading weapons there. Caches have been found there. We are going to submit all of this evidence to the court at
The Hague when the time comes.
[Block] After $50 million ... to the contras by the United States, you are saying that the weapons are still arriving ...

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 290
[Duarte – interrupting] ... I have never said that assistance should be supplied to the contras so that they could invade
Nicaragua's territory. I never said that. I said that someone is doing that, and that what it does is prevent the weapons
from reaching El Salvador. This is what I have said, and I reiterate it. I am not opposed to the prevention of weapons
entering El Salvador. If by some action in the world, these weapons are prevented from entering El Salvador, it is
welcome, because this will rid us of the constant problem of so many deaths, murders, and problems in our home-
land. This is what must be prevented.
.............................
They have been unable to stop the flow of weapons. Doesn't this show you that the problem is much more profound
than we imagine? How and from where do those weapons get here? The scheme they use is so sophisticated that it
obviously renders the problem much more serious.‘ (P. 5.)
122. The foregoing exchange illustrates how genuine is the conviction of El Salvador that Nicaragua continues to send
arms to fuel the Salvadoran insurgency; it provides detail in support of those charges, and a sense of how important such
activity of Nicaragua is to the insurgency; it demonstrates why it is that El Salvador welcomes the pressures of the con-
tras upon Nicaragua; and it suggests that, had El Salvador's Declaration of Intervention been appropriately treated, rather
than being treated in the extraordinary ways in which it was treated, El Salvador might well have taken part in the current
case – a participation which could have transformed it.
123. Nor have the protests of El Salvador, made in the United Nations and through the media, eschewed bilateral diplo-
matic channels. On 20 July 1984, the Acting Minister of Foreign Relations of El Salvador sent the following note of
protest to the Nicaraguan Foreign Minister:
‘I have the honor to direct myself to Your Excellency to present in the name of my Government the most vigorous
protest over the *472 statements made to the information media of the Federal Republic of Germany on the twelfth
of this month by the coordinator of the revolutionary Junta of Government of Nicaragua, Daniel Ortega Saavedra, in
which he publicly recognizes and reiterates the unconditional support of your Government to the guerrilla groups of
the FDR/FMLN.
As Your Excellency is aware, the Salvadoran people have suffered for several years an aggression armed, financed,
and directed in obedience to the designs of an extracontinental power, through intermediaries which, like Cuba and
Nicaragua, provide political, logistical, and material support to the groups which plan to install in El Salvador a to-
talitarian dictatorship through terrorism and resort to all manner of violent acts.
The interventionist attitude of Nicaragua, evidenced once again by one of its highest political spokesmen, has con-
verted that country into a focus of tension and an element of destabilization in the region. That attitude has provoked
numerous protests and denunciations on the part of my country and the other countries of the region, and therefore
constitutes a reason for concern on the part of the democratic countries of the continent and the entire international
community.
Therefore, I take the liberty of pointing out to Your Excellency that the constitutional Government presided over by
Eng. Jose Napoleon Duarte, responding to the sovereign will of the Salvadoran people, demands from the Govern-
ment of Nicaragua respect of its sovereignty, an immediate end to interference in its internal affairs, and respect for
the self determination of the Salvadoran people, who seek peace and justice through democracy.‘ (Unclassified De-
partment of State cable from San Salvador 08416.)
124. On 24 August 1984, El Salvador renewed its protests. A protest note delivered to the Nicaraguan Embassy in San
Salvador observed that the Nicaraguan Government, ‘through its highest representatives, has asserted on many occasions
and through different means its support for Salvadoran guerrilla groups‘, and continued:
‘The Government's interventionist and openly hostile attitude toward the Salvadoran Government, as well as the offi-
cial Nicaraguan support for the rebels in El Salvador, were demonstrated during the funeral of Commander Ana

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 291
Maria (Melida Anaya Montes) in Managua, in April 1983.‘

The Salvadoran Foreign Ministry maintained that the funeral was presided over by Commander Daniel Ortega, Interior
Minister Borge, and Junta member Rafael Cordova, and was attended by Cuban and Salvadoran guerrilla representatives.
The note declared that Nicaraguan intervention in the internal affairs of El Salvador and the material and *473 logistical
support given to the rebel groups ‘represent a flagrant violation of the most elemental norms of international law‘
(ACAN, Panama City 0221 GMT, FBIS unclassified cable PA 240355Z of 24 August 1984).
125. In addressing the General Assembly of the United Nations in 1984, President Duarte declared:
‘For more than four years now El Salvador has suffered from the effects of a merciless war which has caused us
bloodshed and impoverishment. More than 50,000 Salvadorians have been the innocent victims of a fratricidal con-
frontation. More than half a million persons have had to leave their homes and their property. Subversive forces have
engaged in a campaign of terror and systematic destruction, and our people is tired of it. It must end.
.............................
I should like to sign, on behalf of the democratic Government of El Salvador, an agreement that will be in keeping
with the efforts of the Contadora Group. But such an agreement must be right and just for El Salvador. It must
strictly guarantee the application of the 21 points which have already been accepted by all the parties. The agreement
must ensure appropriate measures for the verification and control of everything that is agreed. We must make sure
that the obligations that we undertake will put an end to the presence of foreign military advisers and eliminate milit-
ary aid from abroad. It must provide for strict controls and, at the same time, entail for all the commitment not to
support or continue to give assistance to terrorist activity against our legitimate democratic Government.
.............................
I wish at this point to address some observations to the nations that have committed themselves, in one way or anoth-
er, to undermining my country, as well as to the guerrilla leaders – not those who are living comfortably in and giv-
ing orders from Managua or Havana, or to other nations that claim to be democratic but in fact export violence and
murder, but to the leaders of the guerrillas who are in the mountains of my country, those who are suffering from the
elements, unsheltered, those who are aware of the real position of the Salvadorian nation when they attack the people
and who are waiting – in vain – to be welcomed as liberators when the truth is that their purpose is to oppress those
people.‘ (A/39/PV.24, pp. 3, 7-8, 16.)
President Duarte ended his address with an invitation to the heads of the guerrilla movement to meet him in the village of
La Palma on 15 October 1984.
126. In addressing the General Assembly in 1985, the Vice-President of El Salvador charged that:
‘the Sandinist Government of Nicaragua has turned the territory of *474 its country into a sanctuary for Sal-
vadoran subversion. There, armed groups of the extreme left rest, resupply and train and from there logistic sup-
port for the guerrillas is co-ordinated and sent to El Salvador.‘ (A/40/PV.19, p. 20.)
127. The President of El Salvador in 1985 publicly accused Nicaragua of being involved in the kidnapping of his daugh-
ter by Salvadoran insurgents. ‘Nicaragua is the Central American source for totalitarianism and violence, and the sanctu-
ary for terrorists‘, he charged (International Herald Tribune, 2-3 November 1985). He added that:
‘my daughter ... would not have been among victims of the merciless violence of the terrorists if terrorists did
not have the support, direction, approval and timely protection of the terrorist dictatorship in Nicaragua‘.
In an interview in Spain with El Pais, he gave details of alleged Nicaraguan involvement in the kidnapping, maintaining
that he had recordings of conversations of the kidnappers in which they said: ‘That matter I have to consult with Man-
agua.‘ (El Pais, 6 November 1985.) He also gave details in that interview of the location of alleged Salvadoran guerrilla
bases in Nicaragua. The kidnapping of daughters of Presidents appears to be a speciality of Central American terrorism;
Honduras has officially charged that the daughter of the then Honduran President was kidnapped by a group of Nicara-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 292
guans and Salvadorans (see the address to the Security Council of the representative of Honduras of 28 March 1983, S/
PV.2425, p. 57).
128. In respect of statements of the Government of El Salvador, it should finally be emphasized that that Government for
years has claimed that Nicaragua has been using force against it and has been unlawfully intervening in El Salvador's
civil strife, and it has asserted against Nicaragua both its right of self-defence and its need of United States assistance in
defending itself (see relevant quotations from the Declaration of Intervention of El Salvador quoted in the Court's Judg-
ment, as well as paras. 110, 112-124 above). Thus the then President of El Salvador, Alvaro Magana Borga, in the course
of an official visit to Washington in June 1983 – some nine months before Nicaragua instituted the present proceedings –
issued the following statement:
‘Foreign military intervention in domestic affairs constitutes the main obstacle to our efforts to attain peace. The in-
terference of extracontinental communist countries by way of Cuba and Nicaragua in support of armed groups
against a legitimate constitutionally elected government, is a form of aggression which violates the essence of inter-
national law, specifically the principle of non-intervention in the internal affairs of other states.
*475 Faced with this situation, our armed forces have the constitutional obligation to defend the nation's sovereignty
and to repel, in legitimate self-defence, the armed subversion that has been imposed upon us from abroad.
This external aggression has destroyed villages, forcing hundreds of thousands of humble Salvadorans to abandon
their homes. It has subjected our productive facilities, our crops, our bridges and roads, our communication and
transportation systems and the infrastructure of all public services to systematic destruction ...
No one can dispute a nation's right to defend itself against external aggression and against the destruction of the
scarce assets which in a developing country are produced at great sacrifice. For this reason, we have the right to un-
derstanding and solidarity of all free nations of the world. For these reasons we have the right to the understanding
and solidarity from all other free nations; as we have had from our Central American brothers, those with whom we
share democratic ideals, and for whom I wish to express our gratitude.‘ (Department of State Bulletin, Vol. 83, No.
2077, August 1983, p. 84.)
129. In 1985, President Duarte, in a letter supporting the United States Administration's April 1985 proposal to provide
assistance to Nicaraguan insurgents, wrote:
‘We remain concerned ... by the continuing flow of supplies and munitions from Nicaragua to guerrilla forces ...
which are fighting against my government and our programs of reform, democracy, reconciliation, and peace ... [W]e
deeply appreciate any efforts which your government can take to build a broad barrier to such activities – efforts
which a small country like El Salvador cannot take in its own behalf.‘ (Letter to President Reagan, 4 April 1985, re-
produced in ‘Revolution Beyond Our Borders‘, loc. cit., p. 26, note 34.)
8. Statements by the Government of Honduras accusing Nicaragua of subverting El Salvador as well as Honduras
130. Accusations by the Government of Honduras of acts of intervention and aggression by the Government of
Nicaragua are legion. The ten times in which Nicaragua has had recourse to the Security Council to charge the United
States with acts of aggression – the very acts at bar in the case before the Court –have furnished occasions, among others,
in which the representatives of the Government of Honduras (accused by Nicaragua of acting in concert with the United
States) have in their turn accused the Government of Nicaragua.
131. Moreover, Honduras has protested not only acts of Nicaragua *476 against it but acts of Nicaragua against El Sal-
vador. Thus on 23 March 1983, the representative of Honduras declared in the Security Council:
‘I have seen a large number of trucks using our territory for the transport of armaments from across the Nicaraguan
border. Evidence of this has been submitted to the diplomatic corps and the international press on many occasions.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 293
That is why we wish the fundamental aspect to be recognized: that is, absolute respect for established boundaries.‘
(S/PV.2420, pp. 27-30.)
At a later point in the debate, he charged not only that Honduras has ‘proof that Nicaraguan guerrillas took part‘ in the
kidnapping of 100 Honduran businessmen in San Pedro Sula, but that: ‘Arms go from Nicaragua to El Salvador. That is
clear.‘ (Ibid., p. 72.)
132. In the Security Council debate of 9 May 1983, the representative of Honduras declared:
‘The Government of Nicaragua – the Sandinist Government – is not just arming itself out of all proportion or just
making aggressive statements. It has also carried out a clearly interventionist policy in neighbouring States by pro-
moting the traffic in weapons. I have seen them; I have witnessed them; they exist. If members would like to see the
masses of photographs we can circulate them ... Interventionism is a risky business. As well as the traffic in
weapons, terrorism and subversive movements exist in the region, and this is conducive not to peace ... but to the
maintenance of a climate of tension and violence in Central America. In this respect Honduras must declare its readi-
ness to exercise its sovereign and legitimate right to defend its democratic system of life ...‘ (S/PV.2431, p. 42.)
He added:
‘This is not a bilateral problem between Honduras and Nicaragua. The weapons that are intended to overthrow the
Government of El Salvador are moving through my territory. I do not want continually to cite newspapers, but I am
going to quote from yesterday's New York Times, in which there was an indication that weapons have been moving
through my country towards El Salvador by eight routes, and that at the same time they are being routed around it
through the Strait of Jiquilisco or the Gulf of Fonseca. We believe that what is sauce for the goose is sauce for the
gander, and you know that in the United States there are both geese and ganders in this struggle.‘ (Ibid., pp. 49-50.)
133. In the Security Council debate of 25 March 1983, the respresentative of Honduras again charged that: ‘Weapons
continue moving *477 through our territory with the aim of destabilizing the Government of El Salvador.‘ (S/PV.2423, p.
82.)
134. In the Security Council debate of 28 March 1983, the respresentative of Honduras, in speaking of Nicaraguan sup-
port of the guerrilla movement in El Salvador, declared that the land borders of Honduras ‘have been violated: we have
truckloads of captured weapons, freight cars full of weapons‘ (S/PV.2425, p. 81).
135. In July 1983, such Honduran contentions were elaborated in an address by the Honduran Ambassador to the Organ-
ization of American States, published as Annex 59 to the United States Counter-Memorial. The Ambassador charged:
‘It is important to bring to the attention of the distinguished representatives the fact that the totalitarian Nicaraguan
regime is the main factor in the emergence of the regional crisis, because it has unleashed actions aimed at destabil-
izing governments in other Central American countries. These actions include, among others, direct support for ter-
rorist and subversive groups. To do this, Nicaragua has the backing of antidemocratic groups and countries that are
alien to the Central American region.
.............................
Nicaragua has continued in its spiraling arms buildup. It has continued the trafficking of weapons from several
places through its territory, particularly to El Salvador, violating our sovereignty.
The actions for the political destabilization of the area have not been interrupted; on the contrary, they have been in-
creased. The acts of provocation and aggression against Honduras have not ceased; rather they have flared up ...
.............................
All this clearly shows that Central America is experiencing a widespread conflict provoked by Nicaragua, which has
consequences for all countries in the region. Therefore, this is not just a bilateral conflict, as the Sandinist regime has
tried to label it.‘

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 294
After furnishing considerable detail about the build-up of the Nicaraguan armed forces, exceeding the military forces of
the rest of the Central American countries combined, the Honduran representative continued:
‘The Nicaraguan Government has been sending weapons to the rest of Central America, especially to El Salvador,
since 1980. In the specific case of Honduras, Nicaragua has repeatedly violated our territory in order to do this.
On 17 January 1981 Honduran Army troops and public security *478 agents seized a large shipment of weapons and
military supplies 16 km from Comayagua. The shipment had been well camouflaged inside a van that entered our
territory through the Guasaule customs post. These weapons were for Salvadoran guerrillas. We seized M-16, G-3,
and FAL rifles; M-1 carbines; 50-cal ammunition clips; Chinese RPG rockets; 81-mm mortar rounds; ammunition
clips; (caterinas); communications equipment; and medicines. Five Hondurans and 12 Salvadorans were arrested for
their involvement in this shipment of weapons and supplies.
The arms traffic has continued through different ways and means. On 7 April 1981 troops of the 11th Infantry Bat-
talion stationed in Choluteca seized another van carrying 7.62-mm and 5.56-mm ammunition that had been packed in
polyethylene bags and hidden in the sides of the van. The troops also seized a large quantity of material for the
Armed People's Revolutionary Organization, ORPA, of Guatemala, which was supposed to get the entire shipment.
This van had left from Nicaragua and was detained at the Guasaule customs post.
Honduran territory has also been illegally used for the passage of troops from Nicaragua to El Salvador. On 26
March 1983 a Honduran patrol caught a group of guerrillas by surpise in Las Cuevitas, Nacaome Municipality, Valle
Department, in southern Honduras. They were en route to El Salvador from Nicaragua. Two of the guerrillas were
killed in a clash with the Honduran patrol. On this occasion we seized M-16 rifles, one Czechoslovak 7.65-mm ma-
chine gun made by FHX, M-16 clips, machine gun clips, (caterinas), a portable radio, an FSLN flag, FMLN and
FSLN manuals, as well as two notebooks containing full information on the general route used to move military per-
sonnel and weapons through Honduras on the way to El Salvador.‘
And Honduras provides a great deal more detail about alleged Nicaraguan subversion and terrorism in Honduras, Costa
Rica and Guatemala. None of this evidence has been specifically refuted by the Nicaraguan Government in the course of
these proceedings, though all of it was on record in them as long ago as 17 August 1984.
136. Honduras has made like specific charges against Nicaragua at meetings of the United Nations, for example, the Se-
curity Council session of 30 March 1984 (S/PV.2525). One passage from a long and detailed statement is as follows:
‘The fact that the Sandinist Government is intervening in neighbouring countries is confirmed by the support it gives
to the promotion of subversion in Honduras. But this effort has failed. It is confirmed*479 also by its support of the
guerrillas in El Salvador by supplying them with weapons. As part of this strategy, a week ago Commander Ortega
Saavedra, Nicaragua's Defence Minister, announced the possibility that local guerrilla fighters would mine the ports
of the other Central American countries, from Guatemala to Panama. This statement is a new and very clear threat of
the use of force against other countries, in open violation of the United Nations Charter. Moreover, it is an open ad-
mission that the subversive groups attempting to destabilize Governments in the area are operating with the support
and under the control of the Nicaraguan Government, as Mr. Edgardo Paz Barnica, the Foreign Minister, said in his
firm message of protest.‘ (At p. 58.)
137. In the general debate of the United Nations General Assembly of 12 October 1983, the Foreign Minister of Hondur-
as, criticizing actions of Nicaragua, declared:
‘we see examples of open intervention in El Salvador; attempts to destabilize the democratic Governments of
Honduras and Costa Rica; an alarming increase in the armed forces of the Nicaraguan regime and statements by
the Commanders that govern Nicaragua. 'Our army is prepared to cross the borders of Honduras and Costa
Rica’, 'El Salvador is our shield', they have proclaimed ...‘
138. In debate in the General Assembly on 26 October 1984, the representative of Honduras contended:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 295
‘There has been talk of the use of Honduran territory and of that of other countries allegedly to attack the neighbour-
ing Government. But it has not been said that there were hundreds, if not thousands of Sandinists – and they, them-
selves, have recognized this – who travelled to the Honduran forests, to our tropic zones and tropical jungles, to es-
cape the repression of the Somoza army, to recuperate and then to return to struggle until victory was achieved on 19
July 1979.‘ (A/39/PV.36, p. 77.)
9. Statements by the Government of Costa Rica accusing Nicaragua of subversive acts
139. One of the acts of terrorism attributed by Honduras to Nicaragua by the Honduran Ambassador to the OAS was the
subject of a circular note of 28 July 1982 to diplomatic missions accredited to the Government of Costa Rica, which is
reproduced at Annex 57 of the United States Counter-Memorial. It refers to a plan, said to be devised and directed by the
Nicaraguan Ministry of the Interior, to bomb the Honduran airline offices in San Jose, a plan which Nicaraguan diplo-
mats accredited to Costa Rica *480 took steps to implement, in collaboration with a Colombian terrorist. (Nicaraguan
collaboration with Colombian terrorists was to be charged again in 1985, when the Government of Colombia was repor-
ted to have withdrawn its Ambassador from Managua in response to charges of Sandinista involvement in the Palace of
Justice siege in Bogota; see The Times (London), 23 December 1985, p. 4.) That circular note also refers to Costa Rican
protests to Nicaragua over the frequent violations of Costa Rican territory by the Sandinista Army, as well as ‘constant
violation‘ by Nicaragua of Costa Rica's right to free navigation on the San Juan river. The Costa Rican note also protests
overflights of Costa Rican territory by the Nicaraguan Air Force. No refutation of these charges was made by the Nicara-
guan Government in the course of this Court's proceedings, despite the fact that they have been before the Court since 17
August 1984. However, Nicaragua has felt able to press its own charges of ‘State terrorism‘, involving, among other acts,
bombing of an airline office and overflight of its territory.
10. Statements by the Congress of the United States and by Congressmen opposed to United States support of the contras
140. Annexes to the Nicaraguan Memorial contain extensive reproduction of debates in the Congress of the United States
and of relevant United States legislation. Two elements of the debates and the legislation stand out. The first is that the
elected representatives of the people of the United States are profoundly divided over the policies the United States
should pursue towards Nicaragua. The second is that the elected representatives of the people of the United States are
virtually united in their appraisal of the facts of Nicaraguan behaviour vis-a-vis El Salvador and its other neighbours.
That is to say, however acute the differences in the Congress, and between the Administration and much of the Congress,
on policy towards Nicaragua, and even on what policy towards Nicaragua is legal, there is remarkably little difference
about the facts. The great majority of the members of the House and Senate of the United States agree that Nicaragua
began to ship arms and otherwise assist in an effort to overthrow the Government of El Salvador before the United States
sent as much as a bullet to the contras. Equally, they agree that Nicaragua has maintained to this day its active policy and
practice of assisting the Salvadoran guerrillas to overthrow the Government of El Salvador. These conclusions are accep-
ted as true by the strongest and most articulate critics of the United States policy of supporting the contras. Is it to be
supposed that they – and the Governments of El Salvador, Honduras and Costa Rica – are all wrong, and that the Gov-
ernment of Nicaragua is all right?
141. A good deal has been made in and by the Court – quite understandably*481 – of the admissions of the United
States. The Court would have done well to have given some weight to the affirmations of the Congress of the United
States. It is not the practice of the Congress to enact falsehood into fact. In the democratic system which the United
States is fortunate enough to enjoy, the press is too free, speech is too unhindered, leaks of official secrets are too easily
sprung, the estate of bureaucrats is too low, and the behaviour of Congressmen is too irreverent, to make it likely that, in
a case such as this, where the facts have been aired, challenged, debated, scrutinized and tested, the repeated legislative

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 296
findings of the Congress of the United States, adopted by vast majorities, are false, year after year. And what are those
findings?
142. One may begin with the Permanent Select Committee on Intelligence of the House of Representatives. That Com-
mittee, then under the chairmanship of Congressman Edward Boland, rendered a report in May 1983 which counsel for
Nicaragua, Professor Brownlie, described in Court as ‘that remarkable public document‘, a document which is
‘authoritative and substantial‘ (Hearing of 20 September 1985). Let us look at some of the ‘authoritative and substantial‘
findings of that report (it appears as Ann. E, Att. 1, to the Nicaraguan Memorial).
143. The Committee – whose majority vigorously opposed continued United States support of the contras – began by ob-
serving that the insurgency in El Salvador:
‘depends for its life-blood – arms, ammunition, financing, logistics and command-and-control facilities – upon
outside assistance from Nicaragua and Cuba. The Nicaraguan-Cuban contribution to the Salvadoran insurgency
is longstanding ... It has provided the great bulk of the military equipment and support received by the insur-
gents.‘ (At p. 2.)
It declared the following under the caption ‘Activities of Cuba and Nicaragua‘:
‘The Committee has regularly reviewed voluminous intelligence materials on Nicaraguan and Cuban support for left-
ist insurgencies since the 1979 Sandinista victory in Nicaragua. The Committee's review was indicated not only be-
cause of the importance of Central American issues for U.S. foreign policy, but because of decisions which the Con-
gress was called upon to make on questions of aid to countries in the region. The Committee has encouraged and
supported a full range of intelligence collection efforts in Central America.
Full discussion of intelligence materials in public reports would pose serious security risks to intelligence sources
and methods. Necessarily, therefore, the Committee must limit its treatment of *482 Cuban and Nicaraguan aid for
insurgencies to the judgments it has reached. Such judgments nonetheless constitute a clear picture of active promo-
tion for 'revolution without frontiers' throughout Central America by Cuba and Nicaragua.
The Committee has not come newly to its judgments. On March 4, 1982, after a major briefing concerning the situ-
ation in El Salvador, the Chairman of the Committee made the following statement:
'The Committee has received a briefing concerning the situation in El Salvador, with particular emphasis on the
question of foreign support for the insurgency. The insurgents are well trained, well equipped with modern weapons
and supplies, and rely on the use of sites in Nicaragua for command and control and for logistical support. The intel-
ligence supporting these judgments provided to the Committee is convincing.
There is further persuasive evidence that the Sandinista government of Nicaragua is helping train insurgents and is
transferring arms and financial support from and through Nicaragua to the insurgents. They are further providing the
insurgents bases of operation in Nicaragua. Cuban involvement – especially in providing arms – is also evident.
What this says is that, contrary to the repeated denials of Nicaraguan officials, that country is thoroughly involved in
supporting the Salvadoran insurgency. That support is such as to greatly aid the insurgents in their struggle with gov-
ernment forces in El Salvador.'‘ (Nicaraguan Memorial, Ann. E, Att. 1, p. 5.)
144. This ‘authoritative and substantial‘ report relied on by Nicaragua further holds:
‘At the time of the filing of this report, the Committee believes that the intelligence available to it continues to sup-
port the following judgments with certainty:
A major portion of the arms and other material sent by Cuba and other communist countries to the Salvadoran insur-
gents transits Nicaragua with the permission and assistance of the Sandinistas.
The Salvadoran 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.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 297
The Sandinista leadership sanctions and directly facilitates all of the above functions.
*483 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 Salvadoran in-
surgents. Cuban and Sandinista political support for the Salvadoran insurgents has been unequivocable for years.
The Committee concludes that similarly strong military support has been the hidden complement of overt support.
As the Assistant Secretary of State for Inter-American Affairs, Thomas O. Enders, stated (April 14, 1983) to the
Committee on Foreign Affairs:
'In 1980 (just as in 1978 Castro had brought the three main Sandinista factions together in Havana), Cuban agents
brought five guerrilla factions from El Salvador together in Managua, worked out a unity pact among them, then set
up a joint command and control apparatus in the Managua area and organized logistic and training support on
Nicaraguan soil. Since that time, the great bulk of the arms and munitions used by the insurgents in El Salvador have
flowed through Nicaragua.'‘ (At p. 6.)
145. It will be observed that the Committee affirms that it has reviewed ‘voluminous intelligence materials‘ – materials
which, Mr. MacMichael acknowledged, are essentially the same materials that he had scrutinized (Hearing of 16 Septem-
ber 1985). Its conclusions are not indefinite. As of 1983 – not 1981 but 1983 – it held that there was ‘a clear picture of
active promotion of 'revolution without frontiers' . . . by Nicaragua‘. It concluded that, ‘contrary to the repeated denials
of Nicaraguan officials, that country is thoroughly involved in supporting the Salvadoran insurgency‘. It adjudged ‘with
certainty‘ that arms for the Salvadoran insurgents transit Nicaragua with Sandinista support, and that the Salvadoran in-
surgents benefit from the continued use of command facilities in Nicaragua.
146. If Mr. MacMichael is correct in hazarding that the intelligence community gave misleading presentations, it appears
to have made a good job of it, in the light of the following paragraphs of the Report (which, it must be recalled, is offered
by Nicaragua in evidence, as in support of Nicaragua's case):
‘On September 22, 1982, the Committee released a staff report of its Subcommittee on Oversight and Evaluation en-
titled 'U.S. Intelligence Performance on Central America: Achievements and Selected Instances of Concern’. That
report noted:
'The intelligence community has contributed significantly to *484 meet the needs of policymakers on Central Amer-
ica. Over the last two years perhaps its greatest achievement lies in determining with considerable accuracy the or-
ganization and activities of the Salvadoran guerrillas, and in detecting the assistance given to them by Cuba and oth-
er communist countries. Although amounts of aid and degrees of influence are difficult to assess, intelligence has
been able to establish beyond doubt the involvement of communist countries in the insurgency.'‘ (Nicaraguan Me-
morial, Ann. E, Att. 1, pp. 5-6.)
147. The views of the Congress on the question of Nicaraguan support of the Salvadoran insurgency have not changed as
of 1985. The Conference Report on the Foreign Assistance Act of 1961 as amended in 1985, to which Nicaragua draws
attention (ibid., Suppl. Ann. C, Att. 7) contains the following passages:
– The Congress calls for:
‘(B) the end to Sandinista support for insurgencies in other countries in the region, including the cessation of milit-
ary supplies to the rebel forces fighting the democratically elected government in El Salvador.‘ (At p. H6720.)
– The Congress further finds that the Government of Nicaragua
‘(vi) has committed and refuses to cease aggression in the form of armed subversion against its neighbours in viola-
tion 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.‘ (At p.
H6721.)

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 298
148. It is of interest to note that the 1985 Conference Report also ‘condemns the Government of Nicaragua for violating
its solemn commitments to the Nicaraguan people, the United States and the Organization of American States‘ particu-
larly because of its having failed to fulfil ‘its 1979 commitment to the Organization of American States to implement
genuinely democratic elections . . .‘ (p. H6721).
149. Congressman Boland's views, in his capacity as Committee Chairman, which were read out in Court and are quoted
above, elicited a comment from Mr. MacMichael which will be examined below. Congressman Boland has since been
succeeded as Chairman of the House Permanent Select Committee on Intelligence by Congressman Lee Hamilton, anoth-
er critic of the Administration's policies of aid to the contras. His views on the facts of Nicaraguan support of the Sal-
vadoran insurgency are of like interest. As of 3 June 1985, these were his views:
‘the Nicaraguan Government appears to have committed itself to a policy of support for insurgencies in other
Central American countries.*485 The most important example of this policy is the assistance provided by
Nicaragua to the Salvadoran guerrillas. It seems clear that the Nicaraguan commitment to the Salvadoran guer-
rillas stems from FMLN support to the Sandinistas during their efforts to overthrow Somoza and is a matter of
revolutionary pride and solidarity.
The flow of arms from Nicaragua to the Salvadoran guerrillas continues. The network used for this purpose is run by
Salvadorans with Nicaraguan support. The supplies provided by the network are thought to be mostly ammunition
but also medicine and other supplies. It is also thought that the Salvadoran guerrillas have enough arms but still rely,
to some significant degree, on other types of assistance from Nicaragua.
There have been no appreciable interdiction of arms shipments by the Salvadoran armed forces and none at the point
of entry into El Salvador. The capture of supplies of arms in the past have been in Honduras while in transit or in
safehouses.
The flow of assistance and supplies comes by water along the southeast coast of El Salvador, by land through
Guatemala and Honduras, and possibly by air from Nicaragua. The inability of the Salvadoran or Honduran forces to
interdict shipments by water routes alone is a factor of their corruption or lack of proficiency and of what must either
be an extremely effective guerrilla network or a very small volume of shipments.
Nicaragua also provides communications facilities, safe haven, training, and logistical support to the Salvadoran
guerrillas. The system employed to provide all of these types of assistance is flexible and, apparently, very well run.
The judgments made above concerning assistance to the Salvadoran guerrillas are inferential and based on substan-
tial, but circumstantial information.‘ (Congressional Record, Extension of Remarks, June 3, 1985, p. E2470.)
150. These judgments of the House of Representatives are duplicated in the Senate. Thus in March 1984, Senator Daniel
Patrick Moynihan, a member of the Senate Intelligence Committee, said on the Senate floor:
‘It is the judgment of the Intelligence Committee that Nicaragua's involvement in the affairs of El Salvador and, to a
lesser degree, its other neighbors, continues ... the Sandinista support for the insurgency in El Salvador has not ap-
preciably lessened; nor, therefore, has their violation of the OAS Charter abated.‘ (Reprinted in ‘For the Record‘, the
Washington Post, 10 April 1984.)
151. Leading, informed opponents of the Reagan Administration's *486 Central American policies who nevertheless are
convinced that Nicaragua has been subverting the Government of El Salvador are not restricted to the Congress. For ex-
ample, the last Ambassador to El Salvador under the Carter Administration was Robert E. White, a career Foreign Ser-
vice officer who was replaced by the new Administration as ‘a first signal that U.S. policy was in new hands‘ (Alexander
M. Haig, Jr., Caveat, p. 127). He retired ‘to become a vociferous public opponent of our policy in El Salvador‘ (ibid.).
Ambassador White, in testimony before a Congressional committee, declared that the evidence contained in the Depart-
ment of State White Paper of 1981 was genuine and stated that the Salvadoran guerrillas had ‘imported massive quantit-
ies of arms‘ by way of Nicaragua (see Richard Whittle, ‘Reagan Weighs Military Aid to Counter Soviet, Cuban 'Interfer-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 299
ence’ in El Salvador‘, Congressional Quarterly, 28 February 1981, p. 389; Nicaraguan Memorial, Ann. E, Att. 1, p. 37
(for the text of Ambassador White's letter to President Duarte transmitting an analysis of the captured documents, as well
as Congressman Young's commentary on those documents); and Margot Hornblower, ‘Ousted Envoy Hits Arms Aid to
Salvador‘, the Washington Post, 26 February 1981, p. 1).
152. Against this weight of informed United States opinion, Nicaraguan counsel have offered essentially two things.
First, they have offered the sworn and reiterated affirmations of Foreign Minister D'Escoto and Commander Carrion, as
well as of the Nicaraguan Agent; second, the testimony of Mr. MacMichael. It has been demonstrated above that those
former, self-interested affirmations not only conflict with the testimony of Mr. MacMichael for the period mid-
1979-April 1981, but conflict with an affidavit of Commander Carrion himself, not to speak of the considerable amounts
of other evidence set forth in this appendix. Accordingly, I am convinced that it is impossible to conclude that, for the
pre-March 1981 period, these Nicaraguan affirmations can be regarded as true; on the contrary, it is obvious that they are
false. Now if these representatives of the Government of Nicaragua have deliberately spoken falsely about the pre-March
1981 period, in an attempt to mislead the Court, what reason is there to suppose that they spoke the truth about the ab-
sence of arms shipments to Salvadoran insurgents after March 1981? In short, there is every reason to discard the affirm-
ations of representatives of Nicaragua as lacking in probative value. That is not to say that the Court is right simply to
discount those affirmations along with those of representatives of the United States and absolve itself of dealing with the
fact that on a vital question the sworn factual submissions of Nicaragua are false; that is another matter. But as for
whether the representations of Nicaraguan representatives can offset the findings of the United States Congress, it is
clear that they cannot.
153. Of course, one can say that, no less than Nicaraguan representatives,*487 the United States Congress is a party in
interest, and that its affirmations carry no more weight than do those of officials of Nicaragua. One can say that, but one
cannot reasonably sustain such a conclusion. For, as pointed out, the statements of the United States Congress and of
leading members of the House and Senate are of persons who do not fully support, but in large or full measure oppose,
the policy of the United States which is at issue in this case. Quite apart from what one may believe or conclude about
the relative fidelity of the persons in question, there is reason not to discount these expressions of studied Congressional
conviction.
154. For his part, Nicaragua's key witness on the question, Mr. MacMichael, did not discount Congressional conclusions.
On the contrary, when asked how he could explain the discrepancy between his evaluation of the intelligence data and
Congressman Boland's, he earnestly replied:
‘this is a very important question ... I do not like to believe that my powers of judgment are greater than those of
Congressman Boland. He certainly has seen the evidence, and it is my belief that the evidence he saw was essen-
tially the same evidence that I saw.‘ (Hearing of 16 September 1985.)
Then how does Mr. MacMichael explain such wide discrepancies between his interpretation of the evidence and that of
Congressman Boland? First, he says that, in 1982, it was concluded in respect of an intelligence presentation to the
House Intelligence Committee that the presentation seemed designed more to present the Administration's position than
to illuminate the situation. Second, he suggests that, when in 1983 Mr. Boland made statements such as those quoted in
paragraphs 140 and 141 of this appendix, he did so in the context of a report which recommended cutting off funding for
the contras, on the ground, among others, that, since the flow of arms to Salvadoran rebels from Nicaragua continued, the
contras obviously were ineffective in interdicting that flow. Mr. MacMichael suggests that, apparently, Mr. Boland had
to claim that there was a continued flow of arms to the Salvadoran insurgents in order to justify his conclusion that the
contras were ineffective and should no longer be supported.
155. Do these explanations withstand analysis? Hardly. If, in 1982, in a House Intelligence Committee whose majority

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 300
was opposed to the policy conclusions to which intelligence briefings led, there was dissatisfaction with the objectivity
of those briefings, one may be sure that steps were taken to improve the objectivity of the presentations, which,
moreover, have taken place frequently thereafter, including in 1985 when the House of Representatives adopted the con-
clusions quoted above in paragraphs 147-148. That Mr. MacMichael's characterization does not appear to be the House's
appreciation of the quality of such intelligence briefings is indicated in the quotation supplied in paragraph 146 of this
appendix. Moreover, it is implausible to suggest that, in order to justify his policy of *488 cutting off support to the con-
tras, Congressman Boland had to find the existence of a pattern of shipment of arms to El Salvador where none existed.
If in fact there were no such pattern, if in fact Nicaragua was blameless, Congressman Boland would have been in the
stronger position simply to oppose the policy of supporting the contras. Thus the ‘stipulation‘ which Mr. MacMichael at-
tributes to Congressman Boland is conjecture which in no way answers the question of how it is that apparently everyone
else who has seen the same intelligence data as did Mr. MacMichael arrived at a very different interpretation of it.
11. The transcript of conversation between Assistant Secretary of State Enders and Co-ordinator Ortega
156. Reference has been made in paragraphs 25-26 of this appendix to the transcript of conversation which records ex-
changes in Managua on 12 August 1981 between the then Co-ordinator of the Junta, Commander Daniel Ortega, and the
then Assistant Secretary of State for Inter-American Affairs, Thomas O. Enders. That transcript has been offered in evid-
ence by Nicaragua, which contends that ‘the report of the meeting between Commander Ortega and Mr. Enders corrobor-
ates and confirms the evidence and testimony already presented to the Court by Nicaragua on the subject of the supposed
supplying of arms to El Salvadoran insurgents‘, evidence and testimony which it then summarizes (letter of 26 November
1985). That contention merits examination, especially because the Court appears to agree with it.
157. After having stated that, ‘you see your revolution as irreversible, and so do we‘, Mr. Enders went on to refer to his
other conversations in Managua, a record of which is not provided, and observed that three major problems had emerged,
two raised by the United States and the third by Nicaragua, namely:
‘1. The continued flow of arms, munitions and other forms of military aid to El Salvador.
2. The rapid expansion of military power in Nicaragua which, if it continues, will become a threat to its neighbours,
and might give rise to a general conflagration in which the United States could not remain uninvolved.
3. The fear that the United States is taking steps to destabilize and attack the revolution.‘ (Information and Docu-
ments Supplied by Nicaragua.)
158. Commander Ortega's response is interesting, not least because, rather than initially denying Nicaraguan military aid
to Salvadoran insurgents, he spoke of Nicaraguan National Guardsmen in camps in the United States, of support by the
United States for El Salvador, and the circumstances which have ‘forced‘ Nicaragua to embark on an arms race. *489
Mr. Enders replied that the United States and Nicaragua are at a crossroads.
‘On your part [he said], 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.‘ (Information and Documents Supplied by Nicaragua.)
159. Mr. Enders proceeded in a diplomatic vein. ‘We should be glad if attention could be paid to the question of the arms
race in Central America.‘ While the United States ‘could ourselves suggest a few ways of resolving this problem, ... it is
for each individual country to settle the question of the number of soldiers and the quantity of arms it should have‘. As
for fear on Nicaragua's part of United States intervention, the United States would be prepared to investigate the possibil-
ity of ‘reaffirming‘ the commitment of the Rio Treaty not to resort to the threat or use of force, ‘either bilaterally or by
other means‘. The United States is prepared ‘to give somewhat closer consideration to the problem of Nicaraguan politic-
al exiles in the United States ... it is obvious that if you see them as a political threat, the problem would be to see how
we could respond to this concern‘. Mr. Enders continued:

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 301
‘When we suspended our economic assistance, we said that it could be resumed if Nicaragua halted the arms flow to
El Salvador, and even though the situation in the United States has since changed, this offer remains open.‘ (Ibid.)
He added that the United States could investigate almost immediately the question of food and development aid, and
Peace Corps assistance. He proposed that, in the next weeks, both sides take steps to reduce the polemics and continued:
‘During this time we hope that steps will be taken to halt the arms flow to El Salvador, and I propose to return to
Nicaragua at the end of September to review the programme which has been drawn up and see if conditions are ripe
to go on to the next stage.‘ (Ibid.)
Mr. Enders then concluded:
‘I must emphasize that we feel we are now at a crossroads, and if we do not take these steps we will not achieve any
detente. I do not think it is necessary to go into the alternatives before us in detail, but I should like to point to two
ideas: there are only two things which could oblige us to involve ourselves militarily in this region: (1) if this *490
idea of doing the utmost to halt the arms flow to El Salvador is rejected, (2) if the arms race in Central America is
built up to such a point that some of your neighbours in Central America seek protection from us under the Inter-
American Treaty. We have nothing to gain in such a situation – the cost would be excessive – but if it is forced upon
us, the present American administration would be prepared to take a decision in that situation.
How would you like us to proceed? Should we go on explaining the ideas which I have put forward?‘ (Information
and Documents Supplied by Nicaragua.)
160. Commander Ortega's reply was conciliatory but, on the one hand, while admitting Nicaraguan interest in seeing the
Salvadoran and Guatemalan guerrillas triumph, on the other he gave no assurances about Nicaraguan policy on the flow
of arms to the guerrillas:
‘We too have considered the two alternatives which you have put forward, and we too have seen the crossroads. We
have decided to defend our revolution by force of arms, even if we are crushed, and to take the war to the whole of
Central America if that is the consequence. We are aware of the military power of the United States, but in that re-
spect we are romantics; however, we are not suicides, and we have no wish for that kind of solution. I think the pro-
posal you have made is within rational limits ... The basic responsibility lies not only with the conduct of Nicaragua,
but also in the conduct of the United States, which determines our own ...
We have an historical prejudice towards the United States, because that country has shown a series of attitudes
which makes us fear attack from it, and look for all possible means of defence. We are interested in seeing the guer-
rillas in El Salvador and Guatemala triumph, when we see that there is no good will in the United States towards us.
This is why the greatest weight in this situation attaches to the policy of the United States. This situation is not going
to be resolved by the conduct of Nicaragua, but will depend on the conduct of the United States. It seems to me that
an effort must be made to explore these paths which you are describing ...
.............................
For our part, we are prepared to make every possible effort to achieve an understanding with the United States, but
this will depend on its attitude. We have a feeling of insecurity; ...
Your return in September would be very positive and this commits us to take practical steps. If the United States, for
example, can take action against camps of the former National Guard on its territory, *491 this will relieve the pres-
sure on the arms race in Nicaragua.‘ (Information and Documents Supplied by Nicaragua.)
161. Mr. Enders then made the following remarks, which were no less conciliatory while again emphasizing the import-
ance of Nicaragua's cutting off the flow of arms to Salvadoran insurgents:
‘As regards taking responsibility, we are not trying to make you carry responsibility for the present situation. I can
understand that a revolution which has recently triumphed will find it necessary to take arms to defend itself and pro-
tect other revolutionary movements with which it has affinity, and of course it is more advantageous to you if the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 302
struggle takes place in other countries rather than your own. The problem is that this manner of proceeding or this
form of conduct may become a challenge to the United States to which the latter has to respond, and this is a vicious
circle which we must escape from. The proposals I wanted to make were aimed at overcoming this problem, and I
think that if we want to go on, we must reduce the polemics and provide ourselves with a reliable channel of commu-
nication ...
I must emphasize the importance of stopping the flow of arms to El Salvador, for if this is not done, I could not sug-
gest to my government that we pursue the line we have discussed. Personally, I am certain that we will make great
efforts to exploit the ideas that I have put to you and the proposals that you make.‘ (Ibid.)
162. Commander Ortega replied:

‘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 Sal-
vadoran 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.‘ (Ibid.)
163. To that, Mr. Enders responded:

‘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 [sic: relations?] have not yet reached
the necessary level to exchange intelligence reports.
I should like to reaffirm that we are serious people and that we are *492 not setting impossible conditions or playing
some diabolical game which you cannot win.‘ (Information and Documents Supplied by Nicaragua.)
164. Whereupon, Mr. Ortega concluded: ‘In March you transmitted reports to us which were very valuable in halting the
flow ...‘ (Ibid.)
165. While the elision marks of the record indicated that this was not the end of the exchange, it is the end of the portions
of the exchange which Nicaragua saw fit to provide to the Court. Does that record support the conclusion advanced by
Nicaragua that it corroborates and confirms its position on the flow of arms to El Salvador? Up to a point, but not up to
the critical point. The exchange does bear out the fact that, prior to March 1981, there was a flow of arms from
Nicaragua to Salvadoran insurgents: this is a conclusion which Nicaragua concedes in its interpretation of the Enders
conversation (letter to the Court of 26 November 1985). However, Nicaragua maintains that that flow was ‘small‘, con-
trary to the policy of the Nicaragua Government, and that to the best of its ability the Nicaraguan Government acted to
prevent and stop it. (As has been demonstrated, the flow between the summer of 1979 and March 1981, was not small,
and it was not only promoted but arranged by the Nicaraguan Government. It is here that, in the above letter, Nicaragua
puts forth a remarkably misleading description of Mr. MacMichael's actual testimony, which ignores his acceptance as a
fact that Nicaragua as a Government had been involved in provision of quantities of arms to the Salvadoran insurgents
before March 1981.)
166. What is key is that Mr. Enders maintained that there was a continuing or, rather, resumed flow of arms from
Nicaragua to El Salvador; and that Mr. Ortega replied that ‘as far as we have been informed by you, efforts have been
made to stop it‘. Commander Ortega continued: ‘We would ask you to give us reports about that flow to help us control
it.‘ Mr. Enders' reply was straightforward:
‘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.‘

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 303
167. What was Mr. Enders saying? He was saying, it would appear, look, when, in the autumn of 1980, Mr. Cheek told
you that the arms flow to the Salvadoran guerrillas must stop if the flow of American aid to Nicaragua is to be sustained,
he gave you some details about the arms flow, on the theory that, conceivably, the facts were not known to Nicaraguan
Governmental authorities. The result was (as revealed by the captured *493 papers of Salvadoran guerrillas, see paras.
16, 18-20, 151 above) that the precise routes of arms supply pinpointed by United States intelligence were closed down,
and others were opened up. Again in March of 1981, apparently there was a like experience; the United States seems to
have transmitted specific reports; those routes of arms flow which its intelligence had located were closed down; yet the
flow had resumed. Mr. Enders accordingly observes that,
‘we are not in a position to supply you with intelligence reports. We would compromise our sources, and our na-
tions have not yet reached the necessary level to exchange intelligence reports.‘
168. But Commander Ortega did not give up easily. ‘In March you transmitted reports to us which were very valuable in
halting the flow ...‘ At this point, as noted, the record, in so far as it is supplied, is cut short, but there is –contrary to the
contention since advanced by Nicaragua in its letter of 26 November 1985 – no evidence that ‘after March 1981 ... no
such shipments were made‘. It is true that, after March 1981, Mr. MacMichael found no evidence that there had been
such shipments. But the evidence that there have been such shipments, particularly of ammunition and explosives, is con-
siderable, as the data set out in this appendix shows. (Moreover, additional detailed evidence showing shipment of arms
through Nicaragua and provision of other support by Nicaragua to Salvadoran insurgents after 1981 is contained in Back-
ground Paper: Nicaragua's Military Build-Up and Support for Central American Subversion, submitted to the Court by
the United States with its Counter-Memorial – evidence which, apart from Mr. MacMichael's testimony, Nicaragua has
left essentially unchallenged.) As concluded in paragraphs 58-61, 76-77 of this appendix, it is not possible to believe that
the Nicaraguan Government actually was unaware of and uninvolved in the large-scale flights of arms from an airfield
near Managua in January 1981; a comparison of Mr. MacMichael's testimony on the flights from Papalonal (Hearing of
16 September 1985) and the allegations in ‘Revolution Beyond Our Borders‘ (pp. 18-19, 27-29) shows a striking corres-
pondence between Mr. MacMichael's recollections and the United States contentions, both of which are inconsistent with
those operations not having had the sanction of the Nicaraguan Government. If the position of Nicaragua that it was un-
involved in the pre-March 1981 shipments is untrue –and demonstrably it is – what remains of the current Nicaraguan
contention that the Enders/Ortega conversation confirms and corroborates its whole position? Indeed, if the shipments
made before March 1981 were unknown to the Nicaraguan Government, how can it be sure that, after March 1981, ‘no
such shipments were made‘?
*494 169. In the aftermath of the Enders visit, the United States put the Enders proposals in writing, papers were ex-
changed, and negotiations were carried on. By October 1981, the Nicaraguan Government rejected the Enders approach
as ‘sterile‘ (see Mr. Enders' statement of 12 April 1983 before the Senate Committee on Foreign Relations, reprinted in
‘Nicaragua: Threat to Peace in Central America‘, Department of State Current Policy Paper No. 476, p. 2). On the one
hand, officially Nicaragua continued to maintain that it was not giving material support to the Salvadoran insurgents. On
the other hand, Commander Bayardo Arce told the United States Charge d'Affaires that the United States ‘had better real-
ize that nothing you can say or do will ever stop us from giving our full support to our fellow guerrillas in El Salvador‘
(‘Revolution Beyond Our Borders‘, op. cit., pp. 57, 72 (note 23)). Where the fault lies in the breakdown of the Enders
initiative is difficult to say; opinions vary. Mr. Enders, in the cited Senate statement, places the blame on Nicaragua (loc.
cit., p. 2). President Ortega has publicly recalled Mr. Enders' declining to supply information on arms shipments through
Nicaragua and protested that Mr. Enders set as a condition for a dialogue ‘to even start –that Nicaragua couldn't arm it-
self, that Nicaragua could not permit the trafficking of weapons to El Salvador, that the 'opposition’ be part of the re-
gime‘ (Playboy, loc. cit., p. 200). Actually, the transcript of the Ortega/Enders exchange furnished by Nicaragua indic-
ates no demand by the United States that ‘Nicaragua couldn't arm itself‘, and no demand for admitting the opposition.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 304
But it does show a reiterated United States requirement that ‘Nicaragua could not permit the trafficking of weapons to El
Salvador‘. If in fact Nicaragua was not engaged in such trafficking, why, it may be asked, could not it readily accept this
condition, which the United States made clear was the sine qua non of peaceful co-existence?
170. In any event, whoever was at fault in the failure of the Enders mission, it is clear that the United States mounted a
high-level, candid, and conciliatory attempt to persuade Nicaragua to cease its support for the insurgency in El Salvador
in return for inducements which would have met Nicaragua's professed concerns and interests, and that this attempt em-
bodied explicit acceptance of the Nicaraguan revolution. With the failure of the Enders mission, with the perception by
the United States of its rejection by Nicaragua by October 1981, the United States apparently concluded that it would
have to try to force Nicaragua to do what Nicaragua would not genuinely agree to do: stop promoting the overthrow of
the Government of El Salvador. Accordingly, the next month, November 1981, President Reagan authorized United
States support of the contras.
*495 12. Further early United States attempts at peaceful settlement
171. Nevertheless, even after the United States embarked on the course of contra support, it made further serious at-
tempts at peaceful settlement. At the suggestion of the President of Mexico, the United States, in Spring of 1982, presen-
ted specific proposals in writing to Nicaragua: eight points reiterating and developing the Enders proposals. ‘The first is
the cessation of Nicaragua's support for insurgencies in neighbouring countries ... we must have results on this before any
results can be achieved on other aspects of the proposal ...‘ (Transcript of a Department of State Press Briefing, 8 April
1982, Documents on American Foreign Policy, 1982, doc. 686, p. 1438.) The second was a proposed statement by the
United States dealing with Nicaraguan exile activities in the United States. The third was a proposed joint United States-
Nicaraguan statement on friendly relations, ‘a joint statement pledging noninterference in each other's affairs or in the af-
fairs of others in the region‘ (ibid.). The fourth was a proposal for arms and military force limitations, which provided for
a regional ban on the importation of heavy offensive weapons and reduction of the presence of foreign military advisers.
The fifth was a proposal for international verification of these undertakings by the OAS or other regional organizations.
The sixth was a proposal for economic co-operation, including ‘the reestablishment of direct economic assistance‘ by the
United States to Nicaragua. The seventh proposal was for human and cultural exchanges and ‘confidence building‘. The
eighth proposal was for a reiteration of the Sandinista commitment to ‘the principles of political pluralism, a mixed eco-
nomy, and nonalignment‘ which, together with the FSLN commitment to the OAS ‘concerning the holding of free elec-
tions would be important determinants of the political context of our future relations‘ (ibid.). These proposals were
presented to the Nicaraguan Government by the United States Ambassador in Managua. Nicaragua reportedly made no
positive reply.
172. Thereafter, on 4 October 1982, the United States joined with the Governments of the Republics of Belize, Colom-
bia, El Salvador, Honduras, Jamaica and Costa Rica in a ‘Declaration on Democracy in Central America‘ (Documents on
American Foreign Policy, 1982, doc. 699, p. 1470). It called for the creation and maintenance of truly democratic gov-
ernmental institutions in the region and respect for human rights as well as the following prescriptions:
‘(d) Respect the principle of non-intervention in the internal affairs of states, and the right of peoples to self-
determination;
(e) Prevent the use of their territories for the support, supply, training, or command of terrorist or subversive ele-
ments in other *496 states, end all traffic in arms and supplies, and refrain from providing any direct or indirect as-
sistance to terrorist, subversive, or other activities aimed at the violent overthrow of the governments of other states;
(f) Limit arms and the size of military and security forces to the levels that are strictly necessary for the maintenance
of public order and national defense;
(g) Provide for international surveillance and supervision of all ports of entry, borders, and other strategic areas un-
der reciprocal and fully verifiable arrangements;

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 305
(h) On the basis of full and effective reciprocity, withdraw all foreign military and security advisers and forces from
the Central American area, and ban the importation of heavy weapons of manifest offensive capability through guar-
anteed means of verification.‘ (Documents on American Foreign Policy, 1982, doc. 699, p. 1472.)
The Government of Costa Rica invited the Government of Nicaragua to enter into a dialogue on the basis of these prin-
ciples. Nicaragua refused even to receive the proposal.
173. Mr. Enders' contemporary comments on these initiatives are of interest. In a speech of 20 August 1982 (‘Building
the Peace in Central America‘, Department of State Current Policy Paper No. 414), Mr. Enders said the following:
‘Of all these problems, it is Nicaragua that is the most worrisome. It was the new Sandinista government that region-
alized the conflict in Central America by backing the violence in El Salvador. Sandinista leader Daniel Ortega once
told me that the FMLN [Farabundo Marti National Liberation Front], the Salvadoran guerrilla coalition, is 'nuestro
escudo’ – 'Nicaragua's shield.' And Sandinista support has not lessened. The FMLN's headquarters are in Nicaragua.
It receives sustained logistic support from Nicaragua, above all by airdrop and sea delivery but also by land. Its
training camps are in Nicaragua ...‘
‘The United States has also made proposals. Beginning nearly a year ago and more intensively since April, we have
attempted to engage Nicaragua in a dialogue. We have tried to respond to Nicaragua's concerns, while meeting those
of Nicaragua's neighbors, and our own.
The Sandinistas tell us that they fear an invasion by the United States. So we have offered to enter into a formal non-
aggression agreement. The Sandinistas tell us that ex-Somocistas are training in the United States to invade
Nicaragua. We have assured them that we *497 are enforcing our Neutrality Act, which makes it a federal crime to
launch an attack, or to conspire to attack, another country from the United States.
The Sandinistas tell us we are regionalizing the conflict, preparing Honduras, El Salvador, and Costa Rica as bases
for action against them. So we have suggested that each country in Central America agree to put a reasonable, low
limit on the numbers of foreign military and security advisers it has, and we have suggested that each country pledge
not to import any additional heavy offensive weapons. Both commitments, of course, would have to be subject to in-
ternational verification.
Nicaragua would also have to meet the concerns that its neighbors and we share. We asked that Nicaragua cease its
involvement in the conflict in El Salvador. The Sandinistas say that they are not aware of any such involvement, but
are willing to end it if we just give them the information we have. In our most recent exchanges we suggested that
removing the combined guerrilla headquarters from Nicaragua would be a good place to start and offered to help the
Sandinistas locate it. For example, the point from guerrilla operations in El Salvador are being directed was recently
in a Managua suburb. We are confident that although it moves around a great deal within Nicaragua it can be found.
Nicaragua has yet to respond.
Similarly, Nicaragua must cease its terrorist and other aggressive actions against Honduras and Costa Rica.
We have raised a second issue, which also deeply concerns Nicaragua's neighbors. This is the trend in the organiza-
tion and use of state power in Nicaragua. It is, of course, for Nicaragua to decide what kind of government it has. No
one challenges that. We don't. Its neighbors don't.
But we believe we are all entitled to ask what assurance can any of us have that promises of noninterference will be
kept if the Nicaraguan state remains the preserve of a small Cuban-advised elite of Marxist-Leninists, disposing of
growing military power and hostile to all forms of social life but those they dominate? And we are also entitled to
ask what is to become of internationally recognized human rights under these conditions? Such questions are not a
defense, secret or otherwise, for a return to a discredited Somocismo. They could be answered in the fulfillment of
the Sandinistas' own original commitments to democracy and regional peace.‘
*498 13. The four treaties proposed by Nicaragua in 1983

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 306
174. By the autumn of 1983, United States policy – as manifested not only with respect to Nicaragua, but apparently with
respect to Grenada – succeeded in winning the attention of the Nicaraguan Government. While it appears that Nicaragua
was prepared to look on approvingly, indeed give sustained support to a Salvadoran insurgency involving thousands of
deaths, thousands of wounded, and the widespread destruction of electrical power grids and dams and the blowing of in-
numerable bridges and roads, it protested vigorously when the contras blew up its bridges and assaulted its militia,
Sandinista activists, and innocent citizens who had been similarly slaughtered for years in El Salvador.
175. Armed pressure accordingly apparently moved the Nicaraguan Government to do what persuasion could not: to pro-
pose a settlement, the essence of which appears to have been: Nicaragua will cease support of insurgency in El Salvador,
if the United States will cease not only support of the contras but also support of the Government of El Salvador.
176. The four draft Nicaragua Accords of October 1983 contain no express acknowledgement of the Nicaraguan policy
of support of the armed subversion of El Salvador. The ‘Draft Accord concerning El Salvador‘ and the commentary with
which the Nicaraguan Government accompanied it, as well as the other three draft accords, do not give the impression of
proposals designed to lead to serious negotiation (see, Fundamental Commitments to Establish Peace in Central America,
Official Proposal submitted by Nicaragua within the Framework of the Contadora Process, 1 December 1983, Managua,
Free Nicaragua; Exhibit IX to the Nicaraguan Application). Its Introduction maintains that:
‘The sustained and ever-increasing intervention of the Government of the United States in the internal Salvadoran
struggle is the principal factor that hampers and renders difficult the achievement of a negotiated political solution,
since it has constituted itself in fact as the principal supplier of arms directly to the governmental forces as well as
indirectly to the revolutionary forces.‘ (P. 57.)
It continues:
‘Conscious of this situation, and in a new effort to contribute to a political solution, the Government of Nicaragua
made public on 19 July 1983 an appeal to all nations in which it asked:
'the absolute cessation of all supply of arms by any nation to the forces in conflict in El Salvador, in order that
this people may resolve its problems without outside interference'.
*499 Having received no answer to this appeal, the Government of Nicaragua has considered it necessary to formal-
ize this proposal in concrete and detailed terms, in the form of an accord, to be subscribed to by all nations that de-
sire to contribute to the peaceful solution of the present armed conflict in the Republic of El Salvador. In any event,
Nicaragua is disposed to subscribe to said accord immediately, even though it be with the United States only, in or-
der that the Government of that country cease justifying its interventionist policy in El Salvador on the basis of sup-
posed actions by Nicaragua.‘ (P. 58.)
On 19 July, Commander Ortega's announcement of his diplomatic proposal calling for cessation of all outside assistance
to ‘the two sides‘ in El Salvador may be said to have implicitly acknowledged the assistance which his Government had
been giving to the Salvadoran insurgents (see ‘Revolution Beyond Our Borders‘, p. 27). The draft of the Accord itself
takes ‘into account that the continuation of the supplying and trafficking of arms, munitions and military equipment ...‘
greatly impedes the possibilities of a peaceful negotiated settlement (p. 59; emphasis supplied). The heart of the proposed
Accord is found in draft Articles 1 and 2:
‘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

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 307
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.‘ (At p. 60.)
177. Foreign Minister D'Escoto travelled to Washington to present the four draft Accords; he spoke not only with senior
officials of the Department of State, but with members of Congress and the press. The reaction of the press was interest-
ing, and apparently uniform. Le Monde headlined: ‘Le Nicaragua cesserait d'aider le Salvador si les Etats-Unis renon-
caient a soutenir les antisandinistes.‘ (22 October 1983, p. 1.) It wrote that Managua had just proposed ‘in good and due
form to abandon the Salvadoran guerrillas to their own devices, in exchange for a guaranty that it would have nothing to
fear from Washington‘. The Washington Post stated that:
‘Nicaragua yesterday submitted to the Reagan Administration a *500 package of four binding treaties under which
the leftist Sandinista Government would pledge not to support guerrillas in El Salvador if the United States would
stop supporting anti-Sandinista rebels in Nicaragua.‘ (21 October 1983, p. 1.)
The New York Times reported that the United States Administration found the Nicaraguan proposals ‘deficient‘ and said
that they should be addressed to the Contadora group. But it added:
‘United States officials said that they were encouraged that the Nicaraguan Government was accepting, more expli-
citly than ever before, some 'symmetry’ in El Salvador's demands for an end to outside aid for Salvadoran guerrillas
and Nicaragua's demand that the United States halt its aid to Nicaraguan rebels.‘ (22 October 1983, p. 1.)
178. It could not be expected that a proposal of the substance and tenor of the ‘Draft Accord concerning El Salvador‘
would furnish a basis for a settlement. The United States could not be expected to agree at that stage to cease its lawful
aid to the recognized Government of El Salvador – a cessation which could be easily monitored – in exchange for a
pledge by Nicaragua to cease its unlawful aid to the Salvadoran insurgents – a cessation which could not be easily mon-
itored. It could not be expected to so agree in view of the fact that its assistance to the Government of El Salvador was in
response to prior, massive shipments of arms by Communist States via Nicaragua to the Salvadoran insurgents; while
President Carter's Administration had suspended provision of arms to the Governments of El Salvador and Nicaragua, it
was not until January 1981, in the midst of the insurgents' ‘final offensive‘, that the United States resumed arms ship-
ments to the Government of El Salvador. Nevertheless, the Nicaraguan proposals, and the reaction of the press to them,
do not strengthen the professions of the Nicaraguan Government that it has ‘never‘ engaged in arms trafficking to the
Salvadoran insurgents.
14. Details of Nicaraguan subversion of El Salvador provided in ‘Revolution Beyond Our Borders‘ and in earlier
publications duly submitted to the Court –and Nicaragua's reply
179. ‘Revolution Beyond Our Borders‘ contains a wealth of data, much of it documented, supporting the claims of the
United States that Nicaragua has been and is engaged in activities subverting the Government of El Salvador, and, to a
lesser extent, Honduras and Costa Rica. That data appears to comport with the allegations of the Governments of El Sal-
vador and Honduras which have been set out above, and with significant facts as they came to light in the oral hearings.
*501 180. The United States requested circulation of ‘Revolution Beyond Our Borders‘ as a United Nations document
(A/40/858-S/17612). By letter of 19 November 1985, the Permanent Representative of Nicaragua to the United Nations
responded, and characterized the report ‘as fabricated‘, contending that it contains ‘disinformation for propaganda pur-
poses‘ (A/40/907-S/17639). What proof does Nicaragua offer ‘of the falsity of the United States Government's accusa-
tions‘? ‘As proof of the falsity of the United States Government's accusations, we attach the transcript of the statement
made before the Court by Mr. David MacMichael ...‘
181. The failure of Mr. MacMichael's testimony to sustain Nicaragua's case has been analysed above. If all Nicaragua

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 308
can say – and essentially that is all it does say – in refutation of ‘Revolution Beyond Our Borders‘ is what Mr. MacMi-
chael says, then it may be recalled that:
– Mr. MacMichael's testimony supports, rather than refutes, the validity of the charges of the United States
with respect to Nicaragua's provision of arms to Salvadoran insurgents until March 1981;
– Mr. MacMichael's testimony establishes that he detected no ‘convincing‘ or ‘substantial‘ or ‘significant‘
evidence of shipment of arms from Nicaragua to El Salvador in the period March 1981-April 1983;
however, that conclusion is qualified by his admission of the interception in Costa Rica of an arms shipment
destined to move across Nicaragua to El Salvador in 1982; and it is qualified as well by his inability to ex-
plain persuasively how it is that others who examined the same intelligence data as did he, such as Con-
gressman Boland, are convinced of continuing Nicaraguan support for the Salvadoran insurgents;
– Mr. MacMichael confirms that leadership of the Salvadoran insurgents regularly has operated out of
Nicaragua, an opinion he does not confine to the pre-1981 period;
– Mr. MacMichael confirms that the Salvadoran rebel radio station has broadcast from Nicaragua.
182. It is important that the Court has had the benefit of a reply by the Nicaraguan Government to ‘Revolution Beyond
Our Borders‘, inadequate as that reply is. There is every reason to suppose that, if Nicaragua were able to make a more
effective reply, it would. As it is, it seems fair to take Nicaragua's reply, if not as an acknowledgement of the truth of
United States allegations, and it is hardly that, then as an unconvincing refutation of them. Moreover, much of the con-
tent of ‘Revolution Beyond Our Borders‘ was duly pleaded by the United States in its Counter-Memorial and the annexes
and documents filed with it. Nicaragua's refutation of the evidence there set out consisted essentially of Mr. MacMi-
chael's testimony. For the reasons indicated in paragraph 181 of this appendix, that *502 refutation is no more adequate
in respect of such duly pleaded evidence than it is in respect of ‘Revolution Beyond Our Borders‘.
183. For example, Nicaraguan evidence and argument – and the Court's Judgment – do not begin to explain how it is that
so many of the arms with which the Salvadoran rebels were supplied, and which were captured from them by the Sal-
vadoran Army, reportedly have been traced by serial number to shipments originally made by the United States to Viet
Nam and abandoned there (see Background Paper: Nicaragua's Military Build-Up and Support for Central American
Subversion, pp. 21-22, and ‘Revolution Beyond Our Borders‘, p. 46). In that regard, it is significant that, in 1981, a
spokesman for Viet Nam acknowledged that weapons left by the Americans in Viet Nam had been sent to insurgents in
El Salvador (see William Shawcross, ‘In Vietnam Now‘, The New York Review of Books, 24 September 1981, Vol.
XXVIII, No. 14, p. 4). It is also suggestive that, in March 1981, the Nicaraguan Minister of Defence, Commander Hum-
berto Ortega, stated in a speech in Hanoi that:
‘We sincerely thank the Vietnamese people and highly value their support for the heroic Salvadoran people ... the
fierce and bloody struggle in El Salvador requires the support of all progressive nations and forces through the
world.‘ (FBIS, Vol. IV, Asia and Pacific, 12 March 1981, p. K8.)
184. Nor does the Court's Judgment meet other points made in ‘Revolution Beyond Our Borders‘, despite the fact that the
Judgment acknowledges that that publication may be taken into account by the Court. For example, ‘Revolution Beyond
Our Borders‘ maintains that, as a direct result of support by Nicaragua and other States using Nicaragua as a conduit, the
Salvadoran guerrillas were transformed from terrorist factions that had been limited to robberies, kidnappings and occa-
sional street violence into an organized armed force able to mount a co-ordinated, nationwide offensive. ‘Before the
Sandinista Directorate took power in Managua, there were guerrillas in El Salvador but no guerrilla war.‘ (At pp. 2, 5.)
But the Court's Judgment gives no sense of appreciating the impact on the character of the Salvadoran insurgency of
Nicaragua's intervention, which has by no means been limited to the provision of arms (even though that is the element
of Nicaragua's intervention which the Court chooses to notice).

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 309
185. The Court's Judgment does refer to the ‘final offensive‘ mounted by the Salvadoran insurgents in January 1981. It
notes that that offensive failed, and maintains that any United States response to it which arguably might have been justi-
fied if prompt surely could not be justified months later. The weakness of that argument has been considered in the body
of this opinion. But it should be added that the Court's Judgment takes no account not only of the great damage wronght
by that offensive (see the *503 ‘FMLN Evaluation of the 1981 Offensive‘ reprinted in ‘Revolution Beyond Our Borders‘,
p. 47) but of the ‘prolonged war‘ strategy of the Salvadoran guerrillas which followed it, which has inflicted immense
economic and human losses upon El Salvador (ibid., p. 10). That prolonged war could not have been sustained, at any
rate with comparable effect, without the prolongation of the Nicaraguan supply line. That FMLN Evaluation, by the way,
contains some revealing lines of Salvadoran insurgent thinking about their Sandinista allies, among them:
‘The people of Sandino, who opened the future of Central America, will not kneel before the imperialists. The
people of Central America ... will close ranks ... Each new step that imperialism takes in its military escalation
against the Salvadorean people, increases the threat against the Nicaraguan revolution ...‘ (Ibid., p. 48.)
186. Furthermore, the Court's Judgment has nothing to say about the considerable evidence in ‘Revolution Beyond Our
Borders‘ of Nicaraguan and Cuban training of Salvadoran insurgents, not merely for the 1981 offensive but for sub-
sequent, continuing operations (ibid., pp. 11-12). Equally, the Court's Judgment is silent about the evidence of the pres-
ence in Nicaragua of a general staff of Salvadoran guerrillas exercising command and control of their revolution from
Nicaraguan territory (ibid., p. 12). That silence is the more remarkable in view of the acknowledgment of such presence
by Nicaragua's witness, Mr. MacMichael, and the more powerful acknowledgment still represented by the deaths in Man-
agua of the most senior of all Salvadoran revolutionary commanders, Salvador Cayetano Carpio (‘Commander Marcial‘)
and his deputy.
187. Nor do Nicaraguan denials, and the Court's inferential acceptance of them, adequately explain an occurrence such as
that recounted in an article in the New York Times of 20 December 1985, page A 15, reporting an automobile crash in
Honduras in December 1985 which, it is claimed, provided fresh evidence of continuing shipment of munitions and
money from Nicaragua to Salvadoran insurgents.
‘The Reagan Administration said today that a recent traffic accident in Honduras had turned up strong evidence that
cars with secret compartments were being used to move military supplies from Nicaragua to Salvadoran guerrillas.
Elliott Abrams, Assistant Secretary of State for Inter-American Affairs, displayed photographs and a videotape that
the Honduran authorities said they took when they dismantled a car after it was in an accident on the Pan American
Highway near La Leona on Dec. 7.
He said the bright green Lada car, which is built in the Soviet Union under Fiat license, was carrying 7,000 rounds of
ammunition, 86 *504 electric blasting caps, 20 fragmentation grenades, 17 grenade fuses, radios and walkie-talkies,
computer-made coding and de-coding material and $27,400 in $100 bills.
The Nicaraguan Embassy in Washington said the authorities in Managua had told them that they knew nothing about
the car crash. The embassy repeated previous assertions that the Sandinista Government was not involved in provid-
ing arms and ammunition to the Farabundo Marti National Liberation Front in El Salvador. An embassy spokesman,
Miriam Hooker, called on the United States to take its accusations to the International Court of Justice in The Hague.
A Tire Blew Out
Mr. Abrams said the car, which had Costa Rican license plates, had been driven from Costa Rica to Nicaragua,
where it was loaded. It was then driven across a corner of Honduras toward El Salvador, he said, when a tire blew
out and caused a crash.
When the Honduran police inspected it, he said, they found wires protruding from what was an air conditioning duct.
The wires, he said, turned out to be parts of blasting caps. As a result, he said, the car was taken to Tegucigalpa and

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 310
dismantled. The ammunition and other items were found in six concealed compartments, he said.
The driver of the car, identified as Elias Solis Gonzalez, a member of Costa Rica's Communist party, was arrested by
Honduras, Mr. Abrams said.
The dismantling operation was videotaped, he said, as a result of a suggestion the United States made to the Hondur-
an military several years ago.
Mr. Abrams said three things led to the conclusion that the vehicle had been loaded in Nicaragua. First, he said, the
packing material around the items in the secret compartments consisted of pages of the official Sandinista newspaper
Barricada. Second, the driver, a Costa Rican, told the authorities that he was coming from Nicaragua. Finally, he
said, the communications gear and coding booklets were clearly marked as coming from a guerrilla headquarters that
'we know for a fact is in Managua'.
Discounting suggestions made in the past that munitions shipments from Nicaragua to the Salvadoran guerrillas
might be the work of people not affiliated with the Government or the Sandinista Front, the ruling party, Mr. Abrams
said it would be equally plausible to suggest that the 'tooth fairy' was responsible.
'It is impossible in a country with the degree of control that exists in *505 Nicaragua for there to be shops that build
this kind of car, for there to be ways of filling it with explosives, with letters from the Soviet Union and Cuba, with
code material which is generated by pretty sophisticated computers,' he said. 'It is impossible that all that should take
place in Managua without the involvement of the Sandinistas.'
All of the shipment, he said, came from the Managua headquarters of the Armed Liberation Forces and was intended
for its fighters in El Salvador. The Liberation Forces is the military wing of the Communist Party of El Salvador and
one of five guerrilla groups in the Farabundo Marti Front.
Mr. Abrams said that the Administration had previously accumulated bits and pieces of evidence of such an arms
route to El Salvador but that this was the most conclusive evidence that Nicaragua continued to supply arms to the
Salvadorans. Other such vehicles with hidden compartments were found in Costa Rica and Honduras in 1980 and
1981, he said.‘
For a similar account, see the Washington Post, 20 December 1985, page A49.
188. Finally, Nicaraguan denials of its pervasive support of the Salvadoran insurgency are belied by another, most recent
survey on the scene, by James Le Moyne, chief of the New York Times bureau in San Salvador. In an article entitled,
‘The Guerrilla Network‘, published in the New York Times Magazine of 6 April 1986, Mr. Le Moyne comments on ‘the
revealing information‘ which ‘came to light a year ago with the capture of Nidia Diaz‘ (supra, paras. 95-96, 105) and ob-
serves that:
‘Recent months have also seen an increasing willingness of former guerrilla officials to divulge details of their shad-
owy past. Several high-level Sandinistas have left the Nicaraguan Government because of what they describe as their
unhappiness with the Sandinistas' dependence on the Cubans and the Russians and their failure to establish a plural-
istic society. In the case of the Salvadorans, a few commanders have been captured and been persuaded to give up
the fight; others have been ousted over differences on how the revolution is to proceed.
From interviews with these current and former guerrillas (conducted separately over a six-month period), a clearer
picture emerges of the connections between the various leftist Central American rebel factions – a picture that re-
veals a guerrilla movement that is anything but monolithic. Details were offered, for instance, on the arms shipments
from Nicaragua to El Salvador, on the role of Cuba in the planning of the abortive 'final offensive' in El Salvador in
1981, and on the events leading up to the almost Shakespearean murder-suicide *506 of two prominent leaders of the
Salvadoran guerrilla movement three years ago.
The story behind the brutal killing of Melida Anaya Montes and the suicide of the man implicated in her murder,
Salvador Cayetano Carpio, offers a rare glimpse of the frequently fractious society of revolutionary leaders in Cent-
ral America. In this instance, Mr. Carpio's fiercely Stalinist stance pitted him against many within his own group

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 311
who sought greater unity among rebel factions as well as a negotiated end to the fighting, a position that was
strongly supported by Cuba and Nicaragua.‘ (At p. 18.)
On the basis of his interviews with Salvadoran and other rebels, Mr. Le Moyne recounts that Salvadoran guerrillas with
leadership potential – and their counterparts in other Central American countries – first were offered basic military train-
ing at hidden camps in their own countries, and ‘Most of them later appeared to receive more specialized training abroad
– in Cuba, various Eastern European countries and Vietnam‘ (p. 20). He continues:
‘Rebels say that Cuban embassies serve as refuges and bankers for Central American leftists traveling abroad. In ad-
dition, say several former rebels, almost all the top Sandinista commanders and most of the very senior rebel offi-
cials in El Salvador and Guatemala have received advanced guerrilla training in Cuba. The courses given range from
intelligence gathering to instructions in rural and urban guerrilla warfare.‘ (P. 20.)
Mr. Le Moyne describes in some detail the training of senior Sandinista and other Central American revolutionaries at
Patrice Lumumba University in Moscow, in Cuba, and North Korea, as well as the hard and dedicated life a guerrilla
leads in the field. He continues:
‘Several senior Sandinista officials have admitted they offered to help the Salvadoran rebels with their revolution
soon after Anastasio Somoza was ousted. According to a number of former Sandinista guerrilla commanders, the
Nicaraguans were paying off a debt they had incurred in 1978. At that time, the Salvadorans had managed to amass a
remarkable war chest estimated at more than $80 million from kidnappings, and they decided to invest $10 million in
the Sandinista revolution. The money was handed over in Costa Rica, in cash.
After the Sandinistas came to power, they allowed the five rebel groups in the Salvadoran guerrilla front to set up
their propaganda, communications, financial and logistics offices in Managua. Men who had worked for three lead-
ing Sandinistas – Julio Lopez, chief of *507 the Sandinista Directorate of International Relations; Bayardo Arce
Castano, then the head of the political commission of the National Directorate, and Tomas Borge –say that these of-
ficials helped oversee several arms shipments to the Salvadorans. Mr. Borge denies playing such a role. (Several
former Sandinistas say that Mr. Lopez's directorate, which is modeled after Cuba's Department of the Americas,
serves as the foreign ministry of the Sandinista Front, charged with maintaining ties to other guerrilla groups.)
The Sandinistas offered other assistance as well. According to two former Sandinista officials, a Central American –
who had previously worked in the United States as a Cuban agent specializing in the workings of Congress and the
American press – moved to Managua where he carried out the same task for the Sandinistas. He briefed at least one
high-level Salvadoran rebel delegation that was sent to lobby in the United States. 'He told them how to approach a
particular Congressman, what illusions to appeal to, what his likes and dislikes were', says one of the former
Sandinistas. 'He also advised them on how to talk to the American press.'
There was also cooperation closer to home. A Sandinista official who worked in the Nicaraguan Embassy in Hondur-
as in the early 1980's says he secretly met Salvadoran rebels there to exchange intelligence about the Honduran and
Salvadoran armies and to arrange arms shipments to El Salvador. The Salvadorans, he says, bribed Honduran Army
officers to let the weapons pass overland to El Salvador.
As El Salvador slid to the edge of full-scale revolt, Cuba became an important source of weapons and advice. Ac-
cording to a number of former senior Salvadoran and Sandinista officials, Cuba helped arrange for the supply of at
least 60 percent of the weapons that enabled the Salvadoran guerrillas to equip an army in record time. American
military officials, who say they have checked the serial numbers of captured rifles, report that many are guns the
United States left behind in Vietnam.
Few of the arms shipments to El Salvador by way of Nicaragua have been intercepted by Salvadoran or Honduran
troops. A former Sandinista official who says he helped arrange such shipments describes one method of eluding de-
tection. Rebel accomplices in Panama, Costa Rica and Nicaragua placed guns in sealed trucks with a manifest de-
scribing the cargo as industrial goods bound for Mexico or Guatemala. When the truck crossed into El Salvador,
rebel units *508 there 'hijacked' the cargo by previous arrangement and removed the hidden weapons.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 312
When the time appeared ripe for the 'final offensive', recall two former Sandinista officials, top Cuban officials – in-
cluding Fidel Castro and Manuel Pineiro – took part in strategy sessions with Sandinista and Salvadoran command-
ers. The Cubans and most of the Nicaraguans and the Salvadoran rebel command believed that the Sandinista-style
insurrection could be repeated in El Salvador, and that it was important to act before Ronald Reagan became Presid-
ent. Eden Pastora Gomez, then the Sandinista Deputy Minister of Defense, disagreed.
He argued that conditions in El Salvador were very different from those in Nicaragua. In a manner that has since
been duplicated in the Philippines, the Sandinistas had led a largely middle-class insurrection against a family dictat-
orship. In El Salvador, however, not only were the guerrillas waging a war against a military dictatorship and having
to reckon with a potent Salvadoran Army, but they could not count on the support of the middle class. Mr. Pastora
predicted disaster. The offensive was launched in January 1981. Mr. Pastora proved correct.‘ (‘The Guerrilla Net-
work‘, New York Times Magazine, 6 April 1986, pp. 70-71.)
Mr. Le Moyne's research into the Carpio affair is also of interest. He depicts Mr. Carpio as a hard-line Stalinist, and
states that several rebels indicated that American pressure not only blunted the rebellion in El Salvador but caused Cuba
and Nicaragua to become concerned that ‘the Reagan Administration was on the verge of retaliating against them. They
counseled that it was time to consider a negotiated end to the fighting.‘ (P. 73.) But Mr. Carpio resisted that advice and
apparently believed that his chief opponent inclined to accept it was the second-highest-ranking official in his group,
Melida Montes. ‘On April 6, 1983, she was found brutally murdered in her safe house in Managua ... Miss Montes had
just returned from a visit to Cuba, en route to a party congress in El Salvador and a final showdown with Mr. Carpio.‘
(Ibid.) He describes Mr. Carpio's involvement in her murder, the resultant pressures exerted upon Mr. Carpio by the
Nicaraguans, the orders issued to him by Nicaragua to divulge information on the network which he had built which was
relatively independent of the Cubans and Sandinistas, and concludes: ‘Rather than comply, Mr. Carpio went home and
shot himself in the heart.‘ (P. 75.) Home was in Nicaragua. Mr. Le Moyne further states:
*509 ‘After the United States invaded Grenada in late 1983, the Sandinistas asked most Salvadoran rebels to leave
Managua. These rebels have now been allowed to return, but the Sandinistas also outraged the Salvadorans by tem-
porarily cutting arms supplies to them, according to captured rebel documents.‘ (P. 79.)
I. In 1979, Members of the Nicaraguan National Guard Escaped to Honduras, from which they Harassed Nicaragua. Of-
ficers of the Argentine Army Began Training these Counter-Revolutionaries apparently Late in 1980 or Early 1981 – and
Continued to Do so until Early 1984
189. Training of the contras who collected in Honduras was initially undertaken by Argentine officers, provided by the
Argentine Government, beginning, it appears, sometime late in 1980 or early in 1981, well before the United States sup-
port of the contras began. This is indicated by evidence submitted by Nicaragua. For example, the Nicaraguan Memorial,
Annex F, Attachment 12, page 19 (‘U.S. Backing Raids Against Nicaragua‘, the New York Times, 2 November 1982),
states that Argentina ‘had organized anti-Sandinist paramilitary forces in Honduras 18 months ago, before the American
involvement‘. That article further reports that, ‘Initially, Argentina did take the lead in supplying and directing the units‘
of the contras. In a Security Council debate on 25 March 1982, Commander Ortega claimed that the contras were being
trained and advised ‘by active and retired military personnel from Argentina and other South American countries‘
(S/PV.2335, p. 31). What is not clear is whether such Argentine assistance to the contras was undertaken initially with
the support or financing of the United States, or whether collaboration in such training came about only at a later stage;
in view of indications that Argentine training of the contras began as early as 1980, it is likely that the United States then
was not involved (see Christian, op. cit., p. 197, and para. 210 below). For some considerable time, it in any event ap-
pears that CIA involvement was largely limited to financing the training of the contras (and their Argentine trainers). An
article introduced into evidence by Nicaragua states:
‘The program got off to a bad start when the CIA turned to a surrogate, the right-wing military dictatorship in Argen-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 313
tina, to organize and train the Contras. The Argentines already had a small training program for the Contras in Hon-
duras, and by working with them the U.S. shielded its own involvement. But the heavyhanded Argentine approach
tainted the movement in the eyes of many Nicaraguans.*510 The U.S. had few alternatives, since the CIA at the time
didn't have any reliable paramilitary capability of its own.
.............................
The structure of the program was known as La Tripartita. The idea was to combine American money, Argentine
trainers and Honduran territory to create a guerrilla army known as the Fuerza Democratica Nicaraguense, or FDN.
Later, the U.S. financed other guerrilla groups operating from Costa Rica.
The FDN embodied the political tensions that have plagued the Contras from the beginning. Founded in August
1981, the group combined a rightist military leadership, directed mostly by people who had been loyal to deposed
Nicaraguan dictator Anastasio Somoza, with a moderate political leadership. It wasn't a comfortable marriage.
The head of the Argentine training mission in Honduras was Col. Osvaldo Ribeiro, known as Ballita, or the Little
Bullet. He became a prominent figure in Tegucigalpa, living in a large house, distributing American money and dis-
pensing what CIA officials viewed as unsound military advice. For example, since his own experience was in urban
rather than rural combat, he advised the Contras to mount a program of urban terrorism. The CIA wanted to cultivate
a popular insurgency in the countryside.
The Argentines also apparently tolerated a practice of killing prisoners. A former Contra official describes the in-
formal rule for dealing with captives: If a prisoner has ammunition when captured, let him live, since he hasn't
fought to the last bullet: if a prisoner hasn't any ammunition, kill him. (To stop the killing, CIA officers ordered in
mid-1982 that all prisoners be brought back to base for interrogation.)‘ (The Wall Street Journal, 5 March 1985, pp.
1, 24, reproduced in the Nicaraguan Memorial, Ann. F, No. 191.)
This piece of Nicaraguan evidence also refers to the fast-deteriorating situation in 1981 ‘as Nicaragua rushed weapons
into El Salvador by the truckload‘. It concluded that the contra programme ‘has also reduced the flow of arms in El Sal-
vador‘.
190. Dickey's book With the Contras provides considerable detail about Argentina's relations with Nicaragua. He reports
that, before Somoza's fall, Argentina's military government had placed an intelligence unit of Argentine officers in
Nicaragua in an effort to sustain Somoza, at the same time as opponents of the Argentine Government, the montoneros,
had *511 fighters assisting the Sandinistas in Somoza's overthrow. He indicates that close relations between the
Sandinista Government and the montoneros were maintained thereafter, the montoneros serving in Sandinista intelli-
gence work. He reports that Somoza was murdered in Paraguay in 1980 by an Argentine ERP guerrilla leader.
‘The Argentine killers of the left and right, of the revolution and of the government, who had stalked each other for
so long, now began to strike the enemies of their friends and the friends of their enemies.‘ (Loc. cit., p. 89.)
According to Dickey, Argentina took the initiative as early as January 1981 in extending material support to the contras
(that is, about a year before the CIA appeared on the scene in Honduras); as noted, Christian puts the beginnings of Ar-
gentine involvement with the contras a few months earlier. Contras were taken to Argentina for training, and Argentine
officers undertook the training of the contras in Honduras. Training of the contras appears to have been largely in Argen-
tine hands into 1983 or 1984. While Argentine relations with the United States became strained in the wake of United
States support for the United Kingdom after Argentina's taking of the Falklands (Malvinas) Islands in 1982, it appears
that Argentine officers remained in Honduras until as late as the beginning of 1984 (Dickey, loc. cit., pp. 30-31, 54-55,
89-92, 113-119, 123-124, 145-146, 153, 156, 230, 251). In his testimony before the Court, Commander Carrion stated
that, ‘In 1982 up to the beginning of 1984 the main part of the training was given by Argentine mercenaries ...‘ (Hearing
of 12 September 1985); CIA officers were also employed, according to Commander Carrion, ‘particularly in the area of
sabotage and demolition‘.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 314
J. In November 1981, after Nicaragua Had Failed to Accept Repeated United States Requests to Cease its Material Sup-
port for Salvadoran Insurgents, the United States Decided to Exert Military Pressure upon Nicaragua in Order to Force it
to Do what it Would not Agree to Do
191. See paragraph 33 of this opinion, and paragraphs 169-170, 173, 110, 121-122, 128-129 of this appendix.
K. The Object of United States Support of the Contras Was Claimed by the United States to Be Interdiction of Traffic in
Arms to El Salvador, though Clearly that Was not the Purpose of the Contras
192. See paragraphs 156-173 of this appendix.
*512 L. By October 1983, in Apparent Response to United States Pressures, Nicaragua Proposed Four Treaties which
Were Interpreted as an Offer to Cease Supporting Rebellion in El Salvador if the United States Would Cease Support of
the Contras and of the Government of El Salvador
193. See paragraphs 174-178 of this appendix.
M. In 1983, the United States Called upon Nicaragua to Cut Back its Arms Build-up, to Sever Its Ties With the USSR
and Cuba, and to Carry Out its Pledges to the OAS and its Members for a Democratic Society
194. It is clear that, beginning in 1983, the United States expanded its demands upon Nicaragua. Until some time in
1983, they were – actually or ostensibly – essentially limited to Nicaragua's cessation of its support for the overthrow of
El Salvador's Government and the subversion of other Central American States. Thereafter, they were widened to em-
brace not only a cutback of Nicaragua's military build-up (very large relative to anything else in Central America, and so
large by Latin American standards as to be exceeded only by Cuba and Brazil), but severance of its ties to Cuba and the
USSR and performance of its pledges for the establishment of a democratic society.
195. In respect of Nicaragua's military expansion, it is the fact that it was undertaken on a large-scale when the Carter
Administration was in power and well before Nicaragua could have had colourable reason to claim security concerns. It
has continued at an intensive pace since, during a period when Nicaragua can reasonably claim security concerns. An es-
sential element of the Contadora process is to introduce a better balance in the military postures of the Central American
States.
196. Contadora also calls for the withdrawal of foreign military advisers, which appears to be the essential thrust of
United States demands that Nicaragua sever its ties with Cuba and the USSR and like-minded States. It is the fact that,
from the first days of Sandinista rule, very large numbers of Cuban advisers, military and civilian, have been emplaced in
Nicaragua and in its governmental ministries, and that considerable numbers of military, secret police or other advisers
have been sent to Nicaragua by the USSR, the German Democratic Republic, Bulgaria and other Communist States, as
well as the PLO and Libya.
197. Moreover, there are recurrent reports of the haven which various terrorist elements allegedly have gained in
Nicaragua. The United States has publicly and officially made such charges; there are reports that other governments
have made representations to Nicaragua through diplomatic channels; for its part, Nicaragua has denied such charges. It
is claimed that the Argentine montoneros, the Colombian M-19, the Italian Red Brigades, and Peru's Shining Path are
among such elements (see Juan *513 A. Tamayo, ‘Sandinistas Attract a Who's Who of Terrorists‘, and ‘World's Leftists
find a Haven in Nicaragua‘, the Miami Herald, 3 March 1985, pp. 1A, 22A. Mr. Tamayo indicates that his reports are
based on considerable interviewing in Managua.) Dickey's reporting of collaboration between the Argentine montoneros

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 315
and the Sandinistas has been noted above, as have charges of Nicaraguan support of the Colombian M-19. Collaboration
between the Sandinistas and the PLO and PFLP is said to go back to at least 1970. For example, Sandinista Patrick Ar-
guello Ryan, according to an official United States report, was killed in the hijacking of an El Al airliner en route from
Tel Aviv to London on 6 September 1970. He reportedly had been trained at a PLO camp. It is claimed that Arguello is
now treated by the Nicaraguan Government as a hero and that a large dam under construction has been named in his hon-
our (Department of State, The Sandinistas and Middle East Radicals, 1985, p. 2.)
198. United States demands that the Nicaraguan Government negotiate with the contras, and hold elections which will
genuinely test Sandinista governance, are controversial. For the reasons set out in Section V of this opinion, and in the
light of the commitments undertaken on behalf of Nicaragua vis-a-vis the OAS and its Members in 1979 (App., paras.
8-13), calls upon Nicaragua, to conduct itself in accordance with those commitments are lawful. They are also consonant
with the terms and substance of the Contadora Document of Objectives.
N. By the Beginning of 1984, the United States Undertook Direct if Covert Military Action against Nicaragua, Assault-
ing Oil Facilities and Mining Nicaraguan Ports
199. The facts of this heading, which are developed in the Court's Judgment, are essentially uncontroverted.
O. Particularly Since January 1985, the United States Has Spoken in Terms which Can Be Interpreted as Requiring Com-
prehensive Change in the Policies of, or, Alternatively, Overthrow of, the Nicaraguan Government as a Condition of Ces-
sation of its Support of the Contras
200. It is demonstrated by evidence volunteered by Nicaragua – the transcript of the conversation between Messrs. Or-
tega and Enders – that the United States made it clear that it accepted the Nicaraguan revolution as ‘irreversible‘. Such a
policy is incompatible with the contention of Nicaragua that the policy and actions of the United States Government
were, ‘from the beginning‘, designed to overthrow the Nicaraguan Government. Moreover, the facts demonstrate that the
United States extended significant financial and other support to the Nicaraguan Government *514 from the time it
seized power until January 1981. The facts on both counts show that United States policy at least into 1981 could not
have been designed or implemented with a view towards the overthrow of the Nicaraguan Government.
201. As for the situation from 1982, when the contras began operations (on any noticeable scale, in March 1982), and
thereafter, the facts are not so clear. My own reading of them is that the purpose of United States support of the contras
probably was not overthrow of the Nicaraguan Government but rather the exertion of pressure upon it, initially designed
essentially to compel it to cease its support of insurgency in neighbouring States. Later, in 1983, other purposes came in-
to play, but these purposes did not, and do not, necessarily imply overthrow of the Nicaraguan Government, for two reas-
ons. First, the purposes as stated do not require overthrow of the Nicaraguan Government, but rather changes in its in-
ternal and external conduct and representative character. Second, the size, armament and training of contra forces, relat-
ive to those of the Nicaraguan Government, have been so modest – the resources applied by the United States in support
of its Nicaraguan policy, comparatively so small – that it is most improbable that the contras could overthrow the Nicara-
guan Government. Absolutely, the aid given to the contras has not been so small, but relative to that which Communist
and other States have given to Nicaragua, and in relation to Nicaragua's military strength, it is small. Nor can the short-
lived and limited direct United States attacks on Nicaraguan oil facilities and ports and the mining of Nicaraguan ports be
seen as measures which were likely to lead to the overthrow of the Nicaraguan Government.
202. Of course, the capacities of the contra forces, and the extent of United States involvement in activities directed
against Nicaragua, have been and remain open to change. The ambitions of United States policy apparently have evolved
with time. As noted above, by 1983, the United States was seeking a good deal more than the cessation of Nicaraguan

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 316
support of foreign insurgencies; and the manual of psychological warfare prepared by the CIA for distribution to contra
forces in 1983 – which has been repudiated as an authoritative statement of policy of the United States Government –
openly spoke of the overthrow of Sandinista authority. By 1985, statements of President Reagan and Secretary of State
Shultz were open to the interpretation – they do not require the interpretation, but they are open to the interpretation – of
demanding and seeking overthrow of the Nicaraguan Government. Some statements may so suggest; others affirm that
the objects of United States policy are less farreaching. Both President Reagan and Secretary of State Shultz have ex-
pressly affirmed that ‘the overthrow of the government of Nicaragua is not the object nor the purpose of United States
policy ...‘ (United States Counter-Memorial, Ann. 1, pp. 3-4). While the goal of Nicaragua's policy – the overthrow of
the Government of El Salvador, if not of the Governments*515 of Honduras, Costa Rica and Guatemala – seems clear,
the goal of United States policy is more difficult to establish.
203. Thus one may contrast a written statement of United States policy with President Reagan's use of the expression,
‘say, 'Uncle’‘. Annex 95 to the United States Counter-Memorial reproduces the text of a report to the Congress by Sec-
retary Shultz on 15 March 1984 pursuant to Section 109 (f) of the Intelligence Authorization Act of 1984. At page 6, it is
stated that, in direct meetings in Managua with officials of the Nicaraguan Government, a special Ambassador of the
United States ‘made clear to the Sandinistas our four policy objectives vis-a-vis Nicaragua‘:
‘(1) Implementation of the Sandinistas' democratic commitments to the OAS;
(2) Termination of Nicaragua's support for subversion in neighboring states;
(3) Removal of Soviet/Cuban military personnel and termination of their military and security involvement in
Nicaragua; and
(4) The reduction of Nicaragua's recently expanded military apparatus to restore military equilibrium among the
Central American states.‘
It may be observed that these objectives are altogether consonant with the Document of Objectives of the Contadora pro-
cess. Such objectives are expressed in relevant United States legislation, and repeated in very recent, official statements
of the United States.
204. Now let us look at the ‘say, 'Uncle’‘ exchange. This is how it ran:
‘[Question:] Mr. President, on Capitol Hill ... the other day, Secretary Shultz suggested that a goal of your policy
now is to remove the Sandinista government in Nicaragua. Is that your goal?
[The President:] Well, removed in the sense of its present structure, in which it is a communist totalitarian state, and
it is not a government chosen by the people. So, you wonder sometimes about those who make such claims as to its
legitimacy. We believe, ... that we have an obligation to be of help where we can to freedom fighters and lovers of
freedom and democracy, from Afghanistan to Nicaragua and wherever there are people of that kind who are striving
for that freedom.
.............................
*516 [Question:] Well, sir, when you say remove it in the sense of its present structure, aren't you then saying that
you advocate the overthrow of the present Government of Nicaragua?
[Answer:] Well, what I'm saying is that this present government was one element of the revolution against Somoza.
The freedom fighters are other elements of that revolution. And once victory was attained, the Sandinistas ... ousted
and managed to rid themselves of the other elements of the revolution and violated their own promise to the Orgaiza-
tion of American States, and as a result of which they had received support from the Organization, ... their revolu-
tionary goal was for democracy, free press, free speech, free labor unions, and elections, and so forth, and they have
violated that.
.............................
And ... the freedom fighters opposing them, are Nicaraguan people who want the goals of the revolution restored.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 317
And we're going to try to help.

Q.: Is the answer yes, sir? Is the answer yes, then?
A.: To what?
Q.: To the question, aren't you advocating the overthrow of the present government? If ...
A.: Not if the present ...
Q.: ... you substitute another form of what you say was the revolution?
A.: Not if the present government would turn around and say, all right, if they'd say, 'Uncle'. All right, come on back
into the revolutionary government and let's straighten this out and institute the goals.‘ (Memorial of Nicaragua, Ann.
C, Att. I-14, pp. 5-6.)
205. Does President Reagan's statement affirm – as Nicaragua trumpets – that United States policy is overthrow of the
Government of Nicaragua? It is open to that interpretation. But the direct meaning of it is, first, that the President de-
clined to agree that the purpose of United States policy is ‘the overthrow of the present government‘ and second, that the
President meant no more than that the present Nicaraguan Government should re-admit the disaffected opposition and
‘institute the goals‘ of the revolution, namely, genuinely free elections, a pluralistic system, respect for human rights, and
a foreign policy of non-alignment. Now it is perfectly true that, for the current Nicaraguan Government to make such
changes – for it to conduct free elections, to encourage a pluralistic society, to respect human rights, and conduct a non-
aligned foreign policy – would require profound changes in the actual policies it pursues. It may be that *517 the current
Nicaraguan Government is incapable of such changes – and it may not be. But the President's statement does not neces-
sarily equate with overthrow of the Nicaraguan Government.
P. There Is Evidence of the Commission of Atrocities by the Contras, by Nicaraguan Government Forces, and by Sal-
vadoran Insurgents, and of Advocacy by the CIA of Actions Contrary to the Law of War
206. There is substantial – and horrifying – evidence in the record, and in the public domain, of violations of the law of
war in the Nicaraguan struggle, particularly by the contras based in Honduras and, apparently to a lesser extent, by the
Nicaraguan Government (see, e.g., An Americas Watch Report by Robert K. Goldman et al., Violations of the Law of
War by Both Sides in Nicaragua, 1981-1985, and ibid., First Supplement June 1985; Amnesty International, Nicaragua:
The Human Rights Record, 1986; Leiken, loc. cit., p. 52). Contra atrocities are well documented (see, in addition to the
sources in the record and cited above, Dickey's book, loc. cit., especially pp. 180-182, 186, 193-195, 224-227, 246-250).
But there is also substantial evidence in the public domain indicating that the Nicaraguan Government has gone to con-
siderable lengths to publicize actual or alleged violations of the law of war by the contras, to influence the reports of in-
vestigators of such violations, and to even more extreme lengths to conceal and suppress evidence of its own violations
(see, e.g., the detailed statements supportive of these conclusions in Alvaro Jose Baldizon Aviles, Inside the Sandinista
Regime: A Special Investigator's Perspective, Department of State, 1985, especially pp. 10-16, and Mateo Jose Guerrero,
Inside the Sandinista Regime: Revelations by the Executive Director of the Government's Human Rights Commission,
Department of State, 1985, pp. 2-3, and the comments by Leiken, loc. cit., as well as the comments he quotes of the dir-
ector of Americas Watch on their allegations. See also, Inside Communist Nicaragua: The Miguel Bolanos Transcripts,
Heritage Foundation, 1983, pp. 6-8). Moreover, there is substantial evidence in the public domain of violation of the law
of war by Salvadoran guerrillas, such as shooting of non-combatants, abduction of civilians (mayors, the daughter of the
Salvadoran President), indiscriminate mining of roads, and other such acts, evidence which is essentially uncontroverted.
There is also in the public domain a great deal of uncontroverted evidence of atrocities committed by right-wing death
squads in El Salvador. Charges of indiscriminate bombing have been made against forces of the Government of El Sal-
vador, but these charges are controverted and controversial.
207. In proceedings before the Court, the Nicaraguan Government and *518 its witnesses have submitted not only graph-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 318
ic evidence of atrocities alleged to have been committed by the contras but claims that such atrocities have been commit-
ted at the instigation of the United States. In support of those latter claims, Nicaragua has submitted essentially three
items of evidence: an affidavit by Edgar Chamorro, a former contra official who now resides in Florida; the manual pre-
pared by a CIA contractor entitled Psychological Operations in Guerrilla Warfare; and testimony by Professor Glennon.
208. Nicaragua placed great reliance on the affidavit of Mr. Chamorro, in this regard and in an effort to show that the
United States organized, and directed the military strategies and tactics of, the contra force and chose its leadership. Mr.
Chamorro did not appear in Court and was not subjected to examination. His affidavit may be entitled to weight, but not
necessarily more weight than the affirmations of various defectors from the Sandinistas and Salvadoran guerrillas, such
as Miguel Bolanos, a former Sandinista State Security officer, paragraphs 99-100 of this appendix and Annex 46 to the
United States Counter-Memorial; ‘Commander Montenegro‘, a former Salvadoran guerrilla leader, paragraphs 101-103
of this appendix and Annexes 48 and 49 to the United States Counter-Memorial; Alvaro Jose Baldizon Aviles, formerly
Chief Investigator of the Special Investigations Commission of the Nicaraguan Ministry of the Interior, some of whose
contentions have been quoted or referred to in paragraphs 28 and 104 of this appendix; and still another Sandinista de-
fector, Mateo Jose Guerrero, who was the Executive Director of the Nicaraguan Government's official National Commis-
sion for the Promotion and Protection of Human Rights until his defection in March 1985 (Inside the Sandinista Regime:
Revelations by the Executive Director of the Government's Human Rights Commission, loc. cit.). Their statements are in
the public domain; they have been widely reported in the press; some of those press articles appear as Annexes duly sub-
mitted to the Court by the United States; and such reports are exactly of the same value as evidence as the hundreds of
articles annexed by Nicaragua to its pleadings. It is difficult to see why, if the Court is justified in giving weight to Mr.
Chamorro's attestations, it should give no weight to those of defectors from the Sandinistas such as those just referred to,
at any rate, those whose contentions were duly submitted to the Court with the United States Counter-Memorial on juris-
diction and admissibility.
209. Mr. Chamorro's affidavit, which contains much of interest, has passages which give one pause. Moreover, Mr.
Chamorro, speaking in this affidavit, says one thing; but speaking in other contexts, also in evidence proffered by
Nicaragua, he says another.
210. Thus if we turn to the Nicaraguan Memorial, Annex F, Attachment 163, pages 254-255, we find ‘Edgar Chamorro,
an insurgent leader expelled from the organization last month in a dispute with his colleagues‘, stating, according to this
article, the following: contra commanders had *519 the benefit of ‘training in Argentina in 1981, before CIA advisers
took a direct hand in running the rebellion‘; and Jose Francisco Cardenal, a former Vice-President of the Council of State
under the Sandinistas and a leader of the contras until December 1982, ‘was dropped at the insistence of Argentine ad-
visers who were directing the insurgents in Honduras ... The dispute revolved around Cardenal's efforts to act as leader,
with Argentine officers insisting on retaining control of the insurgency, Edgar Chamorro recalled.‘ Chamorro is reported
to have added: ‘At that time, CIA advisers were playing a secondary role in Honduras and were rarely seen there before
guerrilla ranks began to grow in 1983.‘ (The Washington Post, 17 December 1984, p. 2.) It may be asked whether these
statements attributed to Mr. Chamorro comport with the indications in his affidavit (e.g., para. 10) that, in 1982, the
whole enterprise was being run by the CIA.
211. Mr. Chamorro affirms in his affidavit that it ‘was standard FDN practice to kill prisoners and suspected Sandinista
collaborators ... The CIA did not discourage such tactics. To the contrary ...‘ (Para. 27.) But in other evidence proffered
by Nicaragua (Nicaraguan Memorial, Ann. F, Att. 188, p. 286), Mr. Chamorro is quoted as saying – in 1985 – that: ‘The
Americans were very strong on human rights. [Contra commander] Bermudez was critical of some of them on that. He
felt that they were trying to find out too much.‘ (The Los Angeles Times, 4 March 1985, p. 12.) How can Mr. Chamorro
maintain that, on the one hand, the CIA did not discourage the killing of prisoners and on the other that, ‘The Americans

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 319
were very strong on human rights‘? How could he say this in the same year, speaking both times when he was well free
of his connections with the contras?
212. In respect of the quotation just given from his affidavit concerning ‘standard FDN practice to kill prisoners and sus-
pected Sandinista collaborators‘ (para. 27), which, Mr. Chamorro alleges, were ‘tactics reflected in an operations manual
prepared for our forces by a CIA agent ...‘ (para. 28), Mr. Chamorro proceeds to claim that, ‘In fact the practices advoc-
ated in the manual were employed by FDN troops‘ (para. 28). But, in other evidence proffered by Nicaragua (Nicaraguan
Memorial, Ann. F, Att. 165, p. 257), Mr. Chamorro is quoted as giving another impression. The practice of some rebel
commanders executing their prisoners, which, he says, contra leaders found ‘sickening and disgusting‘, was ‘common
but it definitely was not our policy‘ (‘Nicaragua Rebels Accused of Abuses‘, the New York Times, 27 December 1984, p.
1). If it was definitely not ‘our policy‘, how could it have been the policy which the CIA ‘did not discourage‘? Yet again,
Mr. Chamorro is quoted as saying: ‘Frankly, I admit we have killed people in cold blood when we found them guilty of
crimes. We do believe in the assassination of tyrants. Some of the Sandinistas are tyrants in the small villages.‘ (Joel
Brinkley, ‘Legislators Ask if Reagan Knew of C.I.A.'s Role‘, the New York Times, *520 21 October 1984, p. 1.) This
statement was promptly denied by a spokesman for the Nicaraguan Democratic Force, who maintained that: ‘We have
condemned any form of terrorism, including assassinations.‘ (‘Reagan to Dismiss Officials Responsible for Guerrilla
Primer‘, the New York Times, 22 October 1984, pp. 1, 10.)
213. In his affidavit, Mr. Chamorro recounts that he had cut out pages from the manual which recommended hiring pro-
fessional criminals and creating martyrs for the cause. ‘About 2,000 copies of the manual, with only those two passages
changed, were then distributed to FDN troops.‘ (Para. 28.) These passages imply that the manual was read by FDN
troops and was a factor in the perpetration of their atrocities (an impression which Mr. Chamorro's affidavit and Nicara-
guan counsel seem anxious to convey). But what did Mr. Chamorro otherwise say on that very point? According to evid-
ence offered by Nicaragua (Nicaraguan Memorial, Ann. F, Att. 139, p. 229), Mr. Chamorro said of the manual: ‘I know
that people did not read it.‘ (‘Alleged Author of CIA Manual Said to Be Ex-GI‘, the Washington Post, 20 October 1984.)
214. Since I have read the whole of Psychological Operations in Guerrilla Warfare by ‘Tacayan‘ (Memorial of
Nicaragua, Ann. G), I too believe that people did not read it. It is difficult to suppose that the generality of the contra
fighters, many of whom are poorly educated campesinos, or even their commanders, read some 90 pages of turgid prose,
replete with references to Aristotle, the HUK guerrilla movement of the Philippines, and the ‘Socrates dialectic‘. Those
who might have read it, or parts of it – Dickey reports that the manual was used in classes of a Nicaraguan instructor of
the contras (loc. cit., p. 256) – would have read a confusing mixture. On the one hand, the manual counsels that the guer-
rillas are to achieve:
‘a close identification with the people ... working together with them on their crops ... in fishing, etc. ... as long
as explicit coercion is avoided, positive attitudes can be achieved with respect to the presence of armed guerril-
las within the population‘ (p. 2).
The importance of ‘Showing each guerrilla the need for good behaviour to win the support of the population‘ is stressed
(p. 6).
‘[T]hese principles should be followed:
– Respect for human rights and others' property.
– Helping the people in community work.
– Protecting the people from Communist aggressions.
– Teaching the people environmental hygiene, to read, etc., in order to win their trust, which will lead to a better
democratic ideological preparation.
*521 This attitude will foster the sympathy of the peasants for our movement, and they will immediately become one
of us, through logistical support, coverage and intelligence information on the enemy or participation in combat. The

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 320
guerrillas should be persuasive through the word and not dictatorial with weapons. If they behave in this way, the
people will feel respected, will be more inclined to accept our message and will consolidate into popular support.‘
(At p. 9.)
Thus each guerrilla ‘should be respectful and courteous with the people ...‘ (p. 10). The manual is full of homilies of this
kind, apparently designed to discourage abuses of human rights. Indeed, the origins of the manual indicate that it was an
attempt to curb abuses of human rights which had been committed by groups of contras who had had some, largely Ar-
gentine training but no effective control (see Dickey, op. cit., pp. 249-257).
215. At the same time, the manual contains a section on ‘Implicit and Explicit Terror‘ which advocates some acts within
the bounds of the law of war and some acts in violation of the law of war. Euphemistic terms in some instances are used
to describe such acts: e.g., Sandinista informants will be ‘removed‘ (p. 13). On the one hand, this passage is found:
‘– The fact that the 'enemies of the people’ – the officials or Sandinista agents, must not be mistreated in spite of
their criminal acts, although the guerrilla force may have suffered casualties ...‘ (At p. 13.)
On the other hand, this passage is found, under the caption, ‘Selective Use of Violence for Propagandistic Effects‘:
‘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.‘ (P. 14.)
Mr. Chamorro, in explaining why he had pages ripped out of the copies of the manual which spoke of hiring criminals
and making martyrs, but left sections dealing with ‘neutralizing‘ selected officials intact, reportedly stated: ‘to the rebels,
Mr. Chamorro said, the word 'neutralize’ did not necessarily mean assassinate.‘ (‘Legislators Ask if Reagan Knew of
CIA's Role‘, the New York Times, 21 October 1984, pp. 1, 13.)
216. ‘Psychological Operations in Guerrilla Warfare‘ was a low-level, inadequately supervised and edited, haphazardly
published product (if *522 Mr. Chamorro's affidavit is to be credited; see para. 28). It appears to have been composed in
Honduras by a single CIA contractor, working with Mr. Chamorro and a few other Nicaraguans, who seems to have
drawn on training documents for guerrilla warfare prepared in 1968 by the United States Army, which he revised and
elaborated (Psychological Operations in Guerrilla Warfare, With Essays by Joanne Omang and Aryeh Neier, 1985, pp.
27-28). Those training documents, in turn, allegedly were modelled on Communist terror techniques (see ‘C.I.A. Manual
Is Linked to Vietnam War Guide‘, the New York Times, 29 October 1984). Evidence introduced by Nicaragua states
that: ‘Mr. Chamorro was in charge of editing ...‘ (‘CIA Aides Dispute Reagan on Primer‘, the New York Times, 23 Octo-
ber 1984, Nicaraguan Memorial, Ann. F, Att. 141, p. 231.) ‘What the Agency higher-ups thought of the manual nobody
knew, and nobody seems to have asked. The administration at Langley never bothered to read it.‘ The CIA operations
chief in charge of Nicaraguan affairs ‘could not. He didn't know Spanish.‘ (Dickey, loc. cit., p. 256.) There are indica-
tions that the manual may have been cleared (even edited) by some middle-level CIA officials (‘C.I.A. Chief Defends
Manual for Nicaraguan Rebels‘, the New York Times, 2 November 1984, p. A3); at any rate, after its existence was made
public, a half-dozen CIA officials were officially reprimanded in regard to it, but whether for malfeasance or non-
feasance is unclear. Mr. Chamorro states in his affidavit that he complained to the CIA station chief about the manual
‘and no action was ever taken in response to my complaints‘ (at para. 28). However, in other evidence submitted by
Nicaragua, Mr. Chamorro is reported to have said the following: ‘After he had made his objections known, Chamorro
said, several boxes of the manual were picked up from his offices by U.S. personnel and he did not know where they
were taken.‘ (Christopher Dickey and Joanne Omang, ‘Alleged Author of CIA Manual Said to Be Ex-GI‘, the Washing-
ton Post, 20 October 1984, Nicaraguan Memorial, Ann. F, Att. 139, p. 229.) It has been claimed by the United States
Government that release of the manual was never authorized (ibid.). Copies were, however, used in contra instruction
(Dickey, loc. cit., pp. 256, 310). In all, it may be concluded, as did a Congressional investigation of the manual's produc-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 321
tion which is quoted in the Court's Judgment, that: ‘Negligence, not intent to violate the law, marked the manual's his-
tory.‘ The fact remains that the manual says what it says.
217. It is difficult to appraise the influence, if any, on the contras of the manual, and of an accompanying ‘picture book‘
showing the reader how to puncture tires, leave the lights burning, call in sick to work, make Molotov cocktails and oth-
erwise sabotage Sandinista rule. It is not possible to establish or disestablish that these documents were generally read by
the contras and had a genuine influence on their conduct. To the extent *523 that they did have an influence, in some re-
spects it might have been beneficient, in others, vicious.
218. What is clear, however, is that passages of the manual advocate, or in the least are open to being understood as ad-
vocating, gross violations of the law of war, among them, and most reprehensibly, assassination of those ‘carefully selec-
ted and planned targets‘ who are to be ‘neutralized‘. The text of the manual in the terms in which it was prepared by the
CIA's contractor cannot be reconciled with the terms of the United States Army's The Law of Land Warfare and similar
field manuals, nor with the terms of the relevant Geneva Conventions and customary international law.
219. It is equally clear that it is not the proper function of the Government of the United States, or any government, to
promote the publication of manuals which advocate acts in violation of the basic rules of the law of war and of humanity.
Acts such as assassination of non-combatants are in gross violation of the Geneva Conventions, whether hostilities are
international or not. Does it follow that, by reason of its part, such as it was, in the production of the manual,
‘Psychological Operations in Guerrilla Warfare‘, the United States has violated its responsibility under international law
‘to respect and ensure respect‘ for the provisions of the Geneva Conventions for the Protection of War Victims to which
it is a Party (the quotation is from the text of common Article 1 of the Geneva Conventions of 1949)? As pointed out in
the body of this opinion, the Geneva Conventions have not in the past been construed to treat advocacy by a State of vi-
olations of the Geneva Conventions as a breach by that State of its obligations under the Conventions. Nor is the delict of
‘incitement‘ known to customary international law. But whether or not the United States role in the drafting and publica-
tion of the manual is a violation of its obligations under the Geneva Conventions or customary international law – and it
does not appear to be – it can only be characterized as an act which, in the least, is incompatible with their spirit and with
the conduct expected of responsible governmental authorities.
220. A second profoundly troubling question is whether the United States, for the period and to the extent in which its
agents trained contra forces, can be said to have adequately instructed the contras on their obligations under the law of
war and, if not, what follows. The training of the contras into 1984 appears to have been largely but certainly not entirely
conducted by Argentine officers and, since Congressional limitations were imposed in 1984, there appears to have been
no United States military training; the evidence of what United States trainers did is mixed; but production of the manual,
of itself, suggests dereliction on the part of the United States. The results, in terms of contra behaviour, certainly do not
show sufficient diligence of Argentine and United States trainers in *524 instruction on the law of war. However, since
the contras were and are not under United States command, it does not follow that contra atrocities are to be legally im-
puted to the United States. Many States train foreign military forces, but it is not maintained that such States are, by reas-
on of such training, responsible for violations of the law of war committed by such forces not under the command of
those States.
221. In the circumstances of this case, I agree with the Court that international responsibility for acts of the contras in vi-
olation of the law of war cannot be imputed to the United States. No proof has been placed before the Court which shows
that the United States bears a direct responsibility for such acts of the contras. United States forces have not acted in the
field together with the contras; the contras are not led by United States officers or reinforced with United States troops.
As evidence introduced by Nicaragua indicates (Nicaraguan Memorial, Ann. E, Att. 1, p. 11), in the words of Congress-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 322
man Boland speaking of the contras: ‘These groups are not controlled by the United States. They constitute an independ-
ent force . . .‘ (To the same effect, see Congressman Hamilton as quoted by Nicaragua, ibid., pp. H5724-H5725.) For fur-
ther indication in evidence introduced by Nicaragua that American advisers do not control ground operations conducted
inside Nicaragua by rebel forces, see Memorial of Nicaragua, Annex F, Attachment 72, page 125: ‘Americans on Ship
Said to Supervise Nicaraguan Mining‘, the New York Times, 8 April 1984, where it is stated:
‘that unlike ground operations inside Nicaragua conducted by rebel forces, which American advisers monitor
from Honduras but do not control, the planting of mines in Nicaraguan waters directly involves Americans and
is under their immediate control‘.
222. It may further be recalled that the principal witness called by Nicaragua on the question of the alleged responsibility
of the United States for atrocities committed by the contras was Professor Glennon. When questioned about matters of
imputability, the following exchange occurred:
‘[Answer:] Judge Schwebel, we did not include in our study an analysis of the issues of state responsibility and im-
putability as part of our mission. Ours was a fact-finding mission and I really would prefer not to comment beyond
that.
[Question:] May I ask how you can conclude, if you have not considered questions of imputability, that the United
States is responsible for violations of human rights by the contras?
*525 [Answer:] Because the sponsors of our mission asked us to study moral imputability as well as legal imputabil-
ity. We set out Article 3 of the 1949 Geneva Convention in our report, but as you can see from our report we did not
get into the legal issues. I stand fully behind my conclusion that the United States is responsible for the actions of the
contras and I think we meant that primarily in a moral sense, but as I say our mission was directed to finding facts
and I am convinced that those facts are solid.‘ (Hearing of 16 September 1985.)
223. The conclusion that the acts of the contras in violation of the law of war may not be legally imputed to the United
States nevertheless does not answer the question of whether the United States, if it is unable to exercise adequate control
over the conduct of the contras, should maintain support of them – a question which understandably has provoked acute
controversy in the United States.
224. It should be added that, if the United States were to be held, as Nicaragua maintains that it should be held, respons-
ible for the atrocities of the contras, then it would appear, by parity of reasoning, that Nicaragua should be held respons-
ible for the atrocities of the Salvadoran insurgents. Those atrocities are incontrovertible. It has been established that the
Salvadoran insurgents have been armed, supplied, and in some measure trained by the Nicaraguan Government and that
command and control facilities on Nicaraguan territory have been used by the Salvadoran insurgents, much of whose
leadership has been and perhaps still is situated in Nicaragua. Just as it does not appear that the contras have been under
United States command and it does not appear that United States officers and troops have been in the field with the con-
tras, so it does not appear that the Salvadoran insurgents have been under Nicaraguan command and that Nicaraguan of-
ficers and troops have been in the field with Salvadoran forces. If these appearances are correct, then it would follow that
Nicaragua is no more – but no less – responsible for the violations of the law of war by the Salvadoran insurgents than is
the United States responsible for the violations of the law of war by the contras. However, Nicaragua is responsible for
any violations of the law of war directly attributable to its forces, of which there is some evidence (see, inter alia, the
sources cited in paras. 13, 28, of this appendix). In any case, the responsibility or lack of responsibility of one govern-
ment or collection of insurgent authorities for violations of the law of war cannot excuse the responsibility of another for
its violations.
*526 Q. The Contadora Process Designed to Re-establish Peace in Central America Embraces the Democratic Perform-
ance Internally of the Five Central American Governments

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 323
225. Question has been raised about the legality of United States demands upon Nicaragua to reform its internal political
processes so as to promote democracy, pluralism, and observance of human rights, as well as national reconciliation with
opposition forces. The conclusion that Nicaraguan commitments to the OAS and its Members place such subjects within
the sphere of international concern has been expounded in the body of this opinion and in this appendix, in paragraphs
8-13.
226. Moreover, it is pertinent to recall that the Contadora Document of Objectives, adopted on 9 September 1983 by the
States participating in the Contadora process including Nicaragua, includes the following provisions:
‘Considering:
The situation prevailing in Central America, which is characterized by an atmosphere of tension that threatens secur-
ity and peaceful coexistence in the region, and which requires, for its solution, observance of the principles of inter-
national law governing the actions of States, especially:
The self-determination of peoples . . .
Pluralism in its various manifestations;
Full support for democratic institutions;
The promotion of social justice . . .
Respect for and promotion of human rights; . . .
The undertaking to establish, promote or revitalize representative, democratic systems in all the countries of the re-
gion; . . .
Declare their intention of achieving the following objectives:
To ensure strict compliance with the aforementioned principles of international law, whose violators will be held ac-
countable;
To respect and ensure the exercise of human, political, civil, economic, social, religious and cultural rights;
To adopt measures conducive to the establishment and, where appropriate, improvement of democratic, representat-
ive and pluralistic systems that will guarantee effective popular participation in the decision-making process and en-
sure that the various currents of opinion have free access to fair and regular elections based on the full observance of
citizens' rights;
To promote national reconciliation efforts wherever deep divisions have taken place within society, with a view to
fostering participation in democratic political processes in accordance with the law; . . .‘
227. It will be observed that calls upon Nicaragua to promote pluralism, *527 full support for democratic institutions, hu-
man rights and a representative and democratic system fall within the very terms of the Contadora Document of Object-
ives to which it has agreed. The Contadora Document of Objectives indeed describes these as ‘principles of international
law governing the actions of States‘, from which it follows that, in Central America, they can hardly be matters within
the exclusive domestic jurisdiction and determination of those States, including Nicaragua. The States concerned declare
their intention of achieving the named objectives, which embrace compliance with these principles of international law,
and include ensuring the exercise of human, political, civil, economic, social, religious and cultural rights. They further
include adoption of measures for the establishment and improvement of democratic and pluralistic systems and the pro-
motion of national reconciliation. In view of the agreement by the Government of Nicaragua to these princ ples – as
‘principles of international law‘ – and to these objectives, there appears to be little legal ground for its objecting to calls
upon it to observe what it has pledged itself to observe, in the Contadora context and otherwise. It may further be re-
called that the Charter of the Organization of American States provides that:
‘The solidarity of the American States and the high aims which are sought through it require the political organiza-
tion of those States on the basis of the effective exercise of representative democracy.‘ (Art. 3, para. (d).)

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 324
(Initialled) S.M.S.
*528 DISSENTING OPINION OF JUDGE SIR ROBERT JENNINGS
Although I have to disagree with several of the findings of the Court, particularly on the question of jurisdiction, I must,
at the outset of this opinion, associate myself wholly with the Court's expression of regret over the United States decision
not to appear, or to take any part, in the present phase of this case. This non-appearance has been particularly unfortunate
– perhaps not least for the United States – in a case which involves complicated questions of fact; where, in the merits
phase, witnesses giving evidence as to the facts were called and examined by counsel for the Applicant, but their evid-
ence was not tested by cross-examination by counsel for the Respondent; and where the Respondent itself provided
neither oral nor documentary evidence.
I also wish to express my regret that, in a Court which by its Statute is elected in such a way as to assure ‘the representa-
tion of the main forms of civilization and of the principal legal systems of the world‘, the United States in its statement
accompanying the announcement of the non-participation in the present phase of the case should have chosen to refer to
the national origins of two of the Judges who took part in the earlier phases of the case.
As to the effects of the United States failure to appear in the merits phase, and the meaning and application of Article 53
of the Court's Statute, I am in entire agreement with the Court; and it is hardly necessary for me to add that I agree with
the Court that, despite having chosen not to appear in the present phase, the United States remains a Party to the case,
and is bound by the Judgment of the Court; just as is also Nicaragua.
In a case like the present where an important question of jurisdiction had to be left to be dealt with at the merits stage, it
is incumbent upon those Judges who have felt it necessary to vote ‘No‘ to some of the items of the dispositif, to explain
their views, if only briefly. The reason is that the scheme of the dispositif is necessarily designed to enable the majority
to express their decision. Even amongst them, reasons for the decision may differ; but the actual decision, expressed by
the vote ‘Yes‘, will be essentially the same decision for all of them. Not so for those voting ‘No‘. An example is the very
important subparagraph (3) of paragraph 292 in the present case, by which those voting ‘Yes‘ express their common
view that the respondent State has acted in breach of its obligation not to intervene in the affairs of another State: – a
vote, ‘No‘, however, might mean that in the opinion of that Judge, the Respondent's acts did not amount to intervention;
or that there was a legal justification by way of collective self-defence; or that the action was justified as a counter meas-
ure; or that, as in the case of the present Judge, the Court had no jurisdiction to decide *529 any of these things, and
therefore the vote ‘No‘, of itself, expressed no opinion whatsoever on those other substantive questions.
I shall deal first with the multilateral treaty reservation and jurisdiction; then jurisdiction under the 1956 FCN Treaty;
and finally make some brief comments on the substance of the Judgment.
EFFECT OF THE MULTILATERAL TREATY RESERVATION
The multilateral treaty reservation is so oddly drafted that it must give rise to difficulties of interpretation. I agree with
the Judgment, however, that, in spite of these difficulties, the Court has to respect it and apply it. The reason for this
could not be clearer. The jurisdiction of the Court is consensual, this requirement being an emanation of the independ-
ence of the sovereign State; which, it is in the present case not without pertinence to note, is also the basis of the prin-
ciple of non-intervention. Consequently the Court, in the exercise under Article 36, paragraph 6, of its Statute of its com-
petence to decide a dispute concerning its jurisdiction, must always satisfy itself that consent has in fact been accorded,
before it can decide that jurisdiction exists. Moreover, the Court has to be mindful that a consent given in a declaration
made under Article 36, paragraph 2, – the ‘Optional Clause‘ – is a consent that no State needs to make and that relatively

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 325
very few have ever done so. Accordingly, any reservation qualifying such a consent especially demands caution and re-
spect. I have, therefore, voted ‘yes‘ to subparagraph (1) of paragraph 292.
I agree with the decision of the Court, and for the reasons it gives in the Judgment, that the United States multilateral
treaty reservation operates to exclude the Court's jurisdiction in respect of the several multilateral treaties with which the
dispute between the Parties to this case is concerned: including, most importantly, the Charter of the United Nations
(particularly Art. 2, para. 4, governing the use of force or threat of force, and Art. 51 governing the right of individual
and collective self-defence); and the Charter of the Organization of American States. I am unable, however, to agree with
the Court's persuasion that, whilst accepting the pertinence of the reservation, it can, nevertheless, decide on the Nicara-
guan Application by applying general customary law, as it were in lieu of recourse to the relevant multilateral treaties.
This proposition raises some interesting problems about the relationship of customary law and the United Nations
Charter in particular; and I shall first touch briefly upon these; but only briefly because, there are two *530 further and
decisive reasons, which apply not only to the United Nations Charter but also to other relevant multilateral treaties, and
show most cogently why they cannot be avoided in this case by retreating into custom.
**
Let us look first, therefore, at the relationship between customary international law, and Article 2, paragraph 4, and Art-
icle 51 of the United Nations Charter. There is no doubt that there was, prior to the United Nations Charter, a customary
law which restricted the lawful use of force, and which correspondingly provided also for a right to use force in self-
defence; as indeed the use of the term ‘inherent‘ in Article 51 of the United Nations Charter suggests. The proposition,
however, that, after the Charter, there exists alongside those Charter provisions on force and self-defence, an independent
customary law that can be applied as alternative to Articles 2, paragraph 4, and 51 of the Charter, raises questions about
how and when this correspondence came about, and about what the differences, if any, between customary law and the
Charter provisions, may be.
A multilateral treaty may certainly be declaratory of customary international law either:

‘as incorporating and giving recognition to a rule of customary international law that existed prior to the conclu-
sion of the treaty or, on the other hand, as being the fons et origo of a rule of international law which sub-
sequently secured the general assent of States and thereby was transformed into customary law‘ (see Baxter,
British Year Book of International Law, Vol. XLI, 1965-1966, p. 277).
It could hardly be contended that these provisions of the Charter were merely a codification of the existing customary
law. The literature is replete with statements that Article 2, paragraph 4, – for example in speaking of ‘force‘ rather than
war, and providing that even a ‘threat of force‘ may be unlawful –represented an important innovation in the law. The
late Sir Humphrey Waldock, in a passage dealing with matters very much in issue in the present case, put it this way:
‘The illegality of recourse to armed reprisals or other forms of armed intervention not amounting to war was not
established beyond all doubt by the law of the League, or by the Nuremberg and Tokyo Trials. That was brought
about by the law of the Charter . . .‘ (106 Collected Courses, Academy of International Law, The Hague
(1962-II), p. 231.)
Even Article 51, though referring to an ‘inherent‘ and therefore supposedly pre-existing, right of self-defence, introduced
[FN1]
a novel concept in *531 speaking of ‘collective self-defence‘ . Article 51 was introduced into the Charter at a late
stage for the specific purpose of clarifying the position in regard to collective understandings – multilateral treaties – for
mutual self-defence, which were part of the contemporary scene.
If, then, the Charter was not a codification of existing custom about force and self-defence, the question must then be

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 326
asked whether a general customary law, replicating the Charter provisions, has developed as a result of the influence of
the Charter provisions, coupled presumably with subsequent and consonant States' practice; so that it might be said that
these Charter provisions:
‘generated a rule which, while only conventional or contractual in its origin, has since passed into the general
corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even
for countries which have never, and do not, become parties to the Convention‘ (I.C.J. Reports 1969, p. 41, para.
71).
But there are obvious difficulties about extracting even a scintilla of relevant ‘practice‘ on these matters from the beha-
viour of those few States which are not parties to the Charter; and the behaviour of all the rest, and the opinio juris which
[FN2]
it might otherwise evidence, is surely explained by their being bound by the Charter itself .
There is, however, a further problem: the widely recognized special status of the Charter itself. This is evident from para-
graph 6 of Article 2, that:
‘The Organization shall ensure that States which are not Members of the United Nations act in accordance with these
Principles so far as may be necessary for the maintenance of international peace and security.‘
This contemplates obligations for non-members arising immediately upon the coming into operation of the Charter,
which obligations could at that time only be derived, like those for Members, directly from the Charter itself. Even
‘instant‘ custom, if there be such a thing, can hardly be simultaneous with the instrument from which it develops. There
is, therefore, no room and no need for the very artificial postulate of a customary law paralleling these Charter provi-
sions. That certain provisions of the *532 Charter are as such part of general international law, is the conclusion of no
less an authority than Hans Kelsen:
‘It is certainly the main purpose of Article 2, paragraph 6, to extend the most important function of the Organisation:
to maintain peace by taking 'effective collective measures' to the relation between Members and non-members as
well as the relation between non-members and thus to impose upon them the obligation stipulated in Article 2, para-
graph 4.‘ (The Law of the United Nations, 1950, p. 108.)
And again:
‘From the point of view of existing international law, the attempt of the Charter to apply to states which are not con-
tracting parties to it must be characterized as revolutionary.‘ (Ibid., p. 110.)
Kelsen would hardly have used the word ‘revolutionary‘ if he had thought of it as depending upon a development of cus-
[FN3]
tomary law .
That the Court has not wholly succeeded in escaping from the Charter and other multilateral treaties, is evident from
even a casual perusal of the Judgment; the Court has in the event found it impossible to avoid what is in effect a consid-
eration of treaty provisions as such. As the Court puts it, the Court ‘can and must take them [the multilateral treaties] into
account in determining the content of the customary law which the United States is also alleged to have infringed‘ (para.
183).
This use of treaty provisions as ‘evidence‘ of custom, takes the form of an interpretation of the treaty text. Yet the Court
itself acknowledges that treaty-law and customary law can be distinguished precisely because the canons of interpretation
are different (para. 178). To indulge the treaty interpretation process, in order to determine the content of a posited cus-
tomary rule, must raise a suspicion that it is in reality the treaty itself that is being applied under another name. Of course
this way of going about things may be justified where the treaty text was, from the beginning, designed to be a codifica-
tion of custom; or where the treaty is itself the origin of a customary law rule. But, as we have already seen, this could
certainly not be said of Article 2, paragraph 4, or even Article 51, of the United Nations Charter; nor indeed of most of
the other relevant multilateral treaty provisions.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 327
*533 The reader cannot but put to himself the question whether the Judgment would, in its main substance, have been no-
ticeably different in its content and argument, had the application of the multilateral treaty reservation been rejected.
**
There is no need to pursue further the relationship of the United Nations Charter and customary law; for even if a differ-
ent view of this question could be adopted, there remains, quite independently, a most cogent objection to any attempt to
decide the issues of force and self-defence without the Charter of the United Nations or other relevant treaties. Although
the multilateral treaty reservation qualifies the jurisdiction of this Court, it does not qualify the substantive law governing
the behaviour of the Parties at the material times. Article 38 of the Court's own Statute requires it first to apply
‘international conventions‘, ‘general‘ as well as ‘particular‘ ones, ‘establishing rules expressly recognized by the contest-
ing States‘; and the relevant provisions of the Charter – and indeed also of the Charter of the Organization of American
States, and of the Rio Treaty – have at all material times been principal elements of the applicable law governing the con-
duct, rights and obligations of the Parties. It seems, therefore, eccentric, if not perverse, to attempt to determine the cent-
ral issues of the present case, after having first abstracted these principal elements of the law applicable to the case, and
which still obligate both the Parties.
**
There is yet another reason why it is, in my view, not possible to circumvent the multilateral treaty reservation by resort
to a residuary customary law; even supposing the latter could be disentangled from treaty and separately identified as to
its content. The multilateral treaty reservation does not merely reserve jurisdiction over a multilateral treaty, where there
is an ‘affected‘ party not a party to the case before the Court; it reserves jurisdiction over ‘disputes arising under a multi-
lateral treaty‘.
Clearly the legal nature of a dispute is determined by the attitude of the parties between which the dispute is joined.
Nicaragua eventually, though not originally, pleaded its case in the duplex form of a dispute under multilateral treaties
or, in the alternative, a dispute under customary law. But there are at least two sides to a dispute. The United States did
not countenance a dispute arising only under custom. Its response to the charge of the unlawful use of force, was based
firmly on the terms of Article 51 of the Charter. One party cannot in effect redefine the response of the other party. If the
Respondent relies on Article 51, there is a dispute arising under a multilateral treaty.
*534 Consequently, I am unable to see how the main elements of this dispute – the use of force, and collective self-
defence – can be characterized as other than disputes arising under a multilateral treaty. That being so, it follows from
the multilateral treaty reservation, that the Court's jurisdiction is lacking, not merely in respect of a relevant multilateral
treaty, but in respect of that dispute.
Accordingly, I have voted ‘No‘ to subparagraph (2) of paragraph 292; not at all on grounds of substance but on the
ground of lack of jurisdiction. It follows also that I have had to vote ‘No‘ to subparagraph (4), dealing with certain direct
attacks on Nicaraguan territory, and to subparagraph (5), dealing with unauthorized overflight of Nicaraguan territory;
again because of lack of jurisdiction to decide one way or the other on the question of self-defence.
**
The question next arises whether there are any claims in the Nicaraguan application, which can be severed from disputes
arising under multilateral treaties and can therefore be decided by the Court without trespass upon that area which the re-
servation has put outside the jurisdiction conferred upon it by the United States Declaration under Article 36, paragraph

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 328
2? To answer this question requires an exercise in the characterization of the various issues raised by the application. In
particular, it requires some examination of the applicable law; for the multilateral treaty reservation characterizes ex-
cluded disputes in terms of the kind of law applicable to them. The Court could not, therefore, avoid some examination
of the applicable law, even for those matters which it finally has no jurisdiction to decide; which shows how correct it
was for the Court to join the consideration of the multilateral treaties reservation to the merits in 1984.
It will be convenient to examine from the point of view of jurisdiction, first the question of intervention; then the mining
of the ports; then the breaches of humanitarian law; and then the different question – different because it refers to Article
36, paragraph 1, of the Court's Statute – of the jurisdiction of the Court under the Friendship, Commerce and Navigation
Treaty of 1956.
THE PRINCIPLE OF NON-INTERVENTION AND THE MULTILATERAL TREATY RESERVATION
How far does the multilateral treaty reservation prevent the Court from deciding the questions concerning the principle
ofnon-intervention? There can be no doubt that the principle of non-intervention is an autonomous principle of custom-
ary law; indeed it is very much older than any of *535 the multilateral treaty regimes in question. It is, moreover, a prin-
ciple of law which in the inter-American system has its own peculiar development, interpretation and importance.
One is, however, immediately faced with the difficulty that a plea of collective self-defence is obviously a possible justi-
fication of intervention and that this is the justification which the United States has pleaded. So it is again a dispute
arising under Article 51 of the United Nations Charter. If one turns to the Inter-American system of law, the same prob-
lem arises. Article 18 of the Charter of the Organization of American States deals with intervention in peculiarly compre-
hensive terms, in that it prohibits intervention ‘for any reason whatever‘; it also, in Article 21, deals with force and self-
defence, but in specifically treaty terms. Thus, by that article, 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‘ (emphasis added).
The latter phrase can only mean that self-defence in the inter-American system by definition requires recourse to multi-
lateral treaties; such as, obviously, the Rio Treaty on Mutual Assistance, as well as the Principle of the OAS Charter
(Art. 3 (f)) that: ‘An act of aggression against one American State is an act of aggression against all the other American
States.‘ In short, I am wholly unable to see how the issues of intervention raised in the instant case – intervention indeed
by either Party, for each accuses the other of it –can be categorized as other than a dispute, or disputes, arising under
multilateral treaties, and thus caught by the multilateral treaty reservation; at any rate where self-defence has formally
been pleaded as a justification.
A possible way out of the jurisdictional problem which needs to be investigated is the following. It is certain that a re-
spondent State could not be permitted to make a dispute into one arising under a multilateral treaty, merely by making an
unsupportable allegation that a treaty was involved. Suppose, in the present case, it were manifest on the face of the mat-
ter that there had in fact been no armed attack to which a plea of collective self-defence could be a permissible response?
In that event it could surely be said that there was truly no dispute arising under Article 51 of the Charter.
This, however, is not at all the position. There is a case to answer. The Court has carefully examined both the law and the
fact and has made a formal decision in subparagraph (2) of paragraph 292. In short, there is no escaping the fact that this
is a decision of a dispute arising under Article 51.
*536 Accordingly, I have had to vote ‘No‘ to subparagraph (3) of paragraph 292; not indeed on the ground that there has
been no United States intervention in Nicaragua, for it is obvious that there has been, but because I cannot see that the

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 329
Court has jurisdiction to decide whether or not the intervention is justified as an operation of collective self-defence.
**
THE QUESTION OF THE MINING OF NICARAGUAN PORTS
The dispute concerning the responsibility of the United States for the unnotified mining of Nicaraguan ports, which ap-
parently resulted in damage to a number of merchant ships, some under the flags of third States, seems to be a matter
which does not arise out of the provisions of multilateral treaties, and is therefore within the jurisdiction of the Court.
When this Court had to consider the laying of mines in a seaway in the Corfu Channel case, it did not find it necessary, in
connection with the responsibility for damage caused by the mines, to invoke the provisions of the United Nations
Charter, but based its decision on the obligation to notify the existence of the mines ‘for the benefit of shipping in gener-
al‘; an obligation:
‘based, not on the Hague Convention of 1907, No. VIII, which is applicable in time of war, but on certain gener-
al and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace
than in war; the principle of freedom of maritime communication; and every State's obligation not to allow
knowingly its territory to be used for acts contrary to the rights of other States‘ (I.C.J. Reports 1949, p. 22).
This law would seem to apply a fortiori where a State lays mines in another State's ports or port approaches, and fails to
notify shipping. Nor does this conclusion depend upon a construction of Article 51 of the Charter, for even supposing the
United States were acting in legitimate self-defence, failure to notify shipping would still make the mine-laying unlawful.
No doubt that the Court is right, therefore, in finding that the United States has, in this matter, acted unlawfully. Accord-
ingly, I have found myself able to vote for subparagraph (8) of the dispositif; and also for subparagraph (7), which refers
to the 1956 Treaty of Friendship, Commerce and Navigation, which will be discussed in a following section of this opin-
ion. I am not able, however, to vote ‘Yes‘ to subparagraph (6), which deals with the laying of the mines in terms of a
duty of non-intervention, and also in terms of a violation of sovereignty. This of course again raises the question of pos-
sible justification of th United States action as part of a *537 collective self-defence operation; and on this there is in my
view no jurisdiction to make a finding.
There is, nevertheless, a problem in regard even to the finding that the laying of unnotified mines was unlawful. With the
question of collective self-defence undecided, it is far from clear that the respondent State is answerable to Nicaragua for
damaging, or impeding its shipping; and the third States whose shipping was involved are not before the Court. However,
since the laying of unnotified mines is of itself an unlawful act, it seemed right nevertheless to vote for subparagraph (8).
**
THE CONTRAS AND HUMANITARIAN LAW
Nicaragua claims that the contras have committed violations both of the law of human rights and of humanitarian law
and that the responsibility for these acts should be attributed to the United States. This is, again, a question which is not
one arising under the Charter of the United Nations or of the Organization of American States, for such acts obviously
are unlawful even if committed in the course of justified collective selfdefence. On the other hand, it might be objected
that the question of possible breaches of humanitarian law must be a dispute arising under the 1949 Geneva multilateral
Conventions; and there must be at least very serious doubts whether those conventions could be regarded as embodying
customary law. Even the Court's view that the common Article 3, laying down a ‘minimum yardstick‘ (para. 218) for
armed conflicts of a noninternational character, are applicable as ‘elementary considerations of humanity‘, is not a matter
free from difficulty. Nevertheless, there is also the point that there is no third State ‘affected‘ by a decision taken under

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 330
an Article of the Geneva Conventions; not at any rate in the way that El Salvador can be seen to be ‘affected‘ by a de-
cision taken under Articles 2, paragraph 4, and 51 of the United Nations Charter.
It is clear enough that there has been conduct – not indeed confined to one side of the civil strife – that is contrary to hu-
man rights, humanitarian law and indeed also the most elementary considerations of humanity (see the Report of Am-
nesty International, Nicaragua: the Human Rights Record, March 1986, AMR/43/01/86). To impute any of these acts to
the United States, as acts of the United States – which is what Nicaragua asks the Court to do – would require a double
exercise: there must not only be evidence of the particular acts in question, but the acts must also be imputable to the
United States according to the rules governing State *538 Responsibility in international law; which, in short, means that
the unlawful acts of the contras must have been committed in such a way, or in such circumstances, as to make them in
substance the acts of the United States itself. The Court's finding, made clear in the final phrase of subparagraph (9) of
paragraph 292, is that no such acts can be imputed to the United States, and that this claim and charge of Nicaragua is re-
jected.
There remains, however, the matter of the dissemination of the so-called manual by the United States. This was wholly
deplorable; though it is fair to remember that, when it came to the notice of the House of Representatives Permanent Se-
lect Committee on Intelligence, it was rightly condemned by them, the contras were urged to ignore it, and an attempt
was made to recall copies (para. 120). Again, the dissemination of this manual does not, in international law, make un-
lawful acts of the contras into acts imputable to the United States. This is presumably why the Court's rebuke is in the
non-technical terms of ‘encouragement‘ of unlawful acts. Nevertheless, a rebuke is appropriate and I have had no hesita-
tion in voting ‘Yes‘ to that part of the Court's decision.
Accordingly, I have voted ‘Yes‘ to subparagraph (9) of paragraph 292.
**
TREATY OF FRIENDSHIP, COMMERCE AND NAVIGATION OF 21 JANUARY 1956
It is now necessary to examine how far the Court has jurisdiction to deal with any aspects of the case by virtue of the jur-
isdiction clause (Art. XXIV) of the Treaty of Friendship, Commerce and Navigation of 21 January 1956, which provides:
‘2. Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily ad-
justed by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by
The Court found in the previous phase of the case, that:
‘to the extent that the claims in Nicaragua's Application constitute a dispute as to the interpretation or the applic-
ation of the Articles of the Treaty of 1956 ... the Court has jurisdiction under that Treaty to entertain such
claims‘ (I.C.J. Reports 1984, p. 429).
Since that Judgment, the United States has denounced the Treaty by a *539 Note of 1 May 1985, giving the year's notice
of denunciation required by Article XXV, paragraph 3, of the Treaty. Since this denunciation was long after joinder of is-
sue, it remains a possible ground of jurisdiction in this case.
First, it should be noted that the 1956 Treaty creates, by Article XXIV, a title of jurisdiction under Article 36, paragraph
1, of the Court's Statute, being a treaty ‘in force‘ at the material time. It is a title of jurisdiction which is different from,
and independent of, the question of jurisdiction under the United States Declaration made under Article 36, paragraph 2,
of the Statute. It is, therefore, a title of jurisdiction which is not touched by the multilateral treaties reservation, which ap-
plies only to the Declaration made under Article 36, paragraph 2; and there is, accordingly, nothing to prevent the Court,
when it is dealing with matters covered by the jurisdiction clause of the FCN Treaty, from considering and applying, for

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 331
example, Articles 2, paragraph 4, and 51 of the United Nations Charter or any other relevant multilateral treaties. Indeed,
the first part of Article XXI (d) of the FCN Treaty, to be considered below, clearly contemplates certain kinds of
‘obligations of a Party‘ arising from the United Nations Charter as being relevant to the interpretation and application of
the treaty.
This does not mean that the principal dispute, the subject of the Nicaraguan Application, could be dealt with under the
FCN Treaty jurisdiction clause; except indeed in so far as it may involve a dispute which directly concerns the
‘interpretation or application‘ of the provisions of the treaty. I am unable to accept the Nicaraguan argument, by which
the treaty jurisdiction is supposed to comprise matters which could be said in general terms to be inconsistent with the
‘object and purpose‘ of an FCN treaty, but are not referred to specific articles of the treaty. The jurisdiction clause of
such a treaty could not be regarded as conferring a jurisdiction to pass upon matters external to the actual provisions of
the treaty, even though such matters may affect the operation of the treaty. Suppose hostilities, or even war, should arise
between parties to an FCN treaty, then the Court under a jurisdiction clause surely does not have jurisdiction to pass
upon the general question of the lawfulness or otherwise of the outbreak of hostilities or of war, on the ground only that
this defeated the object and purpose of the treaty; though of course it might have jurisdiction for instance to decide
whether there was a ‘war‘ or hostilities, for the purposes of interpreting and applying a war clause which was a term of
the treaty. If it were otherwise, there would be no apparent limit to the kinds of dispute which might in certain circum-
stances be claimed to come under such a jurisdiction clause. The conferment of such a potentially roving jurisdiction
could not have been within the intention of the parties when they agreed the jurisdiction clause; and if the Court had as-
serted such a jurisdiction, this would only have discouraged future mention of the Court in such FCN treaty jurisdiction
clauses. I am therefore glad to note that the Court (para. 271) bases its jurisdiction here on Article 36, paragraph 2, of
*540 the Statute; though that course is not open to me, taking the view I do on the effect of the multilateral treaty reser-
vation.
It is in any event abundantly clear that the object and purpose of this particular Treaty could not have anything like so
large an ambit as Nicaragua contended. The Treaty is, in its preamble, said to be ‘based in general upon the principles of
national and most-favoured-nation treatment unconditionally accorded‘: a strictly technical formula concerned essentially
with commercial relations. Thus, the ‘object and purpose‘ of this Treaty is simply not capable of being stretched in the
way Nicaragua wished.
If one looks, accordingly, at the actual provisions of the Treaty, perhaps one is struck first by the extent to which many of
the terms of the Treaty have been faithfully observed by both Parties. There is much, for example, concerning the treat-
ment of the nationals of one Party in the territory of the other (e.g., Arts. VIII, IX, X and XI) and United States citizens
seem to be able to travel freely to Nicaragua. As to Nicaraguans in the United States, it was striking that Mr. Chamorro,
whose affidavit is much relied upon by the Court excuses himself from travelling to The Hague to give oral testimony,
because travel outside the United States could possibly, he had been advised, prejudice his application for leave to estab-
lish himself and his family as permanent residents in the United States.
Nevertheless, there are acts of the United States which appear prima facie to be breaches of actual provisions of the
Treaty. The mining of the ports very clearly touches Article XIX, which provides that between the territories of the two
parties there shall be freedom of commerce and navigation. And by declaring a general embargo on trade with Nicaragua
on 1 May 1985, the United States is prima facie in breach of the actual stipulations of several articles, including in partic-
ular Article XIX again; for the comprehensive trade embargo is repugnant to an undertaking to establish ‘freedom of
commerce‘; and to the provision of that Article that:
‘3. Vessels of either Party shall have liberty, on equal terms with vessels of the other Party and on equal terms with

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 332
foreign commerce and navigation.‘
At this point, however, it is necessary to consider the effect of Article XXI which contains a list of provisos – measures
which the ‘present Treaty shall not preclude the application of‘ – which qualify the entire Treaty. The interesting one for
present purposes is:
*541 ‘(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‘.
The point that immediately occurs to the mind is that measures taken in individual or collective self-defence, or as
counter-measures, are clearly caught by this proviso as measures necessary to protect essential security.
The question arising under Article XXI is not, however, whether such measures are justified in international law as ac-
tion taken in self-defence, or as justified counter-measures in general international law; the question is whether the meas-
ures in question are, or are not, in breach of the Treaty. Any operation that comes squarely within Article XXI, as a
measure taken by one party to the Treaty, as being ‘necessary to protect its essential security interests‘, cannot be in
breach of the Treaty. I do not see what other meaning can be given to a clause which simply states that ‘The present
Treaty shall not preclude the application‘ of such measures, and thus is a proviso to the entire Treaty.
Turning now, therefore, to the ‘measures‘ which the Court's decision treats as breaches of this Treaty, it will be conveni-
ent first to consider the unnotified mining of Nicaraguan ports which, in subparagraph (7) of paragraph 292, is said to be
in breach of the Treaty. This is a question which I have not found it at all easy to resolve.
There is of course, as already mentioned above, no question that the United States, ‘by failing to make known the exist-
ence and location of the mines‘, has indeed ‘acted in breach of its obligations under customary international law‘
(subpara. 8). The question, however, in relation to the 1956 Treaty, is not whether the United States acted in breach of
‘elementary considerations of humanity‘, but whether it acted also in breach of the bilateral treaty relationship with
Nicaragua, having regard to the general proviso in Article XXI? Again it must be emphasized that the issue here is not
simply the lawfulness or unlawfulness of the act in general international law, but whether it was also in breach of the
terms of the Treaty? Certainly it is prima facie a breach of Article XIX, providing for freedom of navigation; but is it a
‘measure‘ excepted by the proviso clause of Article XXI? Although not without some remaining doubts, I have come to
the conclusion that Article XXI cannot have contemplated a measure which cannot, under general international law, be
justified even as being part of an operation in legitimate self-defence. I have therefore voted ‘Yes‘ to subparagraph (8) of
paragraph 292. (As explained above, I cannot vote in favour of subparagraph (6) because this is dependent upon being
able to vote ‘Yes‘ to subparagraph (2).)
Turning now to subparagraph (10) of paragraph 292, the Court finds that the ‘attacks on Nicaraguan territory referred to
in subparagraph (4)‘, are calculated to deprive the 1956 Treaty of its object and purpose. Here *542 there is, in my view,
no need to consider Article XXI, because I fail to see how these direct attacks upon Nicaraguan territory have anything to
do with the treaty at all. In fact any examination of whether bombing attacks are, or are not, breaches of a treaty ‘based in
general upon the principles of national and of most-favoured-nation treatment unconditionally accorded‘, might be
thought not wholly free from an element of absurdity.
I have already discussed the question of jurisdiction in relation to the ‘object and purpose‘; but here it is the substance of
the Court's decision that causes me unease. Either those acts are breaches of some provision of the Treaty or they have
nothing to do with the Treaty. The ‘object and purpose‘ of a treaty cannot be a concept existing independently of any of
its terms. I have, therefore, voted ‘No‘ to subparagraph (10).
As to the general embargo on trade with Nicaragua of 1 May 1985: this was instituted by the Executive Order of 1 May

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 333
1985, made by the President of the United States; it 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‘; the Order also declared a ‘national emergency to deal with that threat‘ (see Judgment, para. 125). This statement
on national security made no reference to Article XXI of the 1956 Treaty, and was presumably to serve a purpose of do-
mestic United States law. It went on to prohibit ‘all imports into the United States of goods and services of Nicaraguan
origin‘; and ‘all exports from the United States of goods and services to or destined for Nicaragua, except those destined
for the organized democratic resistance, and transactions relating thereto‘. There was also a prohibition in general terms
on all air carriers and vessels, the latter being prohibited from entering United States ports if of Nicaraguan registry.
There is no difficulty in holding that the total trade embargo, and of air and sea transit, by the Order of 1 May 1985, was
a prima facie breach of the terms of the Treaty; and again it is Article XIX that is directly involved. It seems to me there
is equally no difficulty in seeing that these measures came squarely within Article XXI and therefore are not in breach of
the Treaty.
Accordingly, I have voted ‘No‘ to subparagraph (11) of paragraph 292.
**
THE PLACE OF ‘ARMED ATTACK‘
Although I am of the opinion that, owing to the operation of the multilateral treaty reservation, the Court has no jurisdic-
tion to pass upon the question of self-defence, it seems right nevertheless to comment briefly *543 upon some passages
of the Court's Judgment where it deals with these matters in a way with which I do not find myself entirely in agreement.
The question of what constitutes ‘armed attack‘ for the purposes of Article 51, and its relation to the definition of aggres-
sion, are large and controversial questions in which it would be inappropriate to become involved in this opinion. It is of
course a fact that collective self-defence is a concept that lends itself to abuse. One must therefore sympathize with the
anxiety of the Court to define it in terms of some strictness (though it is a little surprising that the Court does not at all
consider the problems of the quite different French text: ‘ou un Membre ... est l'objet d'une agression armee‘). There is a
question, however, whether the Court has perhaps gone too far in this direction.
The Court (para. 195) allows that, where a State is involved with the organization of ‘armed bands‘ operating in the ter-
ritory of another State, this, ‘because of its scale and effects‘, could amount to ‘armed attack‘ under Article 51; but that
this does not extend to ‘assistance to rebels in the form of the provision of weapons or logistical or other support‘ (ibid.).
Such conduct, the Court goes on to say, may not amount to an armed attack; but ‘may be regarded as a threat or use of
force, or amount to intervention in the internal or external affairs of other States‘ (ibid.).
It may readily be agreed that the mere provision of arms cannot be said to amount to an armed attack. But the provision
of arms may, nevertheless, be a very important element in what might be thought to amount to armed attack, where it is
coupled with other kinds of involvement. Accordingly, it seems to me that to say that the provision of arms, coupled with
‘logistical or other support‘ is not armed attack is going much too far. Logistical support may itself be crucial. According
to the dictionary, logistics covers the ‘art of moving, lodging, and supplying troops and equipment‘ (Concise Oxford
English Dictionary, 7th ed., 1982). If there is added to all this ‘other support‘, it becomes difficult to understand what it
is, short of direct attack by a State's own forces, that may not be done apparently without a lawful response in the form of
collective self-defence; nor indeed may be responded to at all by the use of force or threat of force, for, to cite the Court
again, ‘States do not have a right of 'collective’ armed response to acts which do not constitute an 'armed attack'‘ (see
para. 211).

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 334
This looks to me neither realistic nor just in the world where power struggles are in every continent carried on by
destabilization, interference in civil strife, comfort, aid and encouragement to rebels, and the like. The original scheme of
the United Nations Charter, whereby force would be *544 deployed by the United Nations itself, in accordance with the
provisions of Chapter VII of the Charter, has never come into effect. Therefore an essential element in the Charter design
is totally missing. In this situation it seems dangerous to define unnecessarily strictly the conditions for lawful self-
defence, so as to leave a large area where both a forcible response to force is forbidden, and yet the United Nations em-
ployment of force, which was intended to fill that gap, is absent.
These observations have mainly to do with the Court's statement of the law. As to the case before the Court, I remain
somewhat doubtful whether the Nicaraguan involvement with Salvadorian rebels has not involved some forms of ‘other
support‘ besides the possible provision, whether officially or unofficially, of weapons. There seems to have been perhaps
overmuch concentration on the question of the supply, or transit, of arms; as if that were of itself crucial, which it is not.
Yet one is bound to observe that here, where questions of fact may be every bit as important as the law, the United States
can hardly complain at the inevitable consequences of its failure to plead during the substantive phase of the case. It is
true that a great volume of material about the facts was provided to the Court by the United States during the earlier
phases of the case. Yet a party which fails at the material stage to appear and expound and explain even the material that
it has already provided, inevitably prejudices the appreciation and assessment of the facts of the case. There are limits to
what the Court can do, in accordance with Article 53 of the Statute, to satisfy itself about a non-appearing party's case;
and that is especially so where the facts are crucial. If this were not so, it would be difficult to understand what written
and oral pleadings are about.
**
THE NATURE OF COLLECTIVE SELF-DEFENCE
Another matter which seems to call for brief comment, is the treatment of collective self-defence by the Court. The pas-
sages beginning with paragraph 196 seem to take a somewhat formalistic view of the conditions for the exercise of col-
lective self-defence. Obviously the notion of collective self-defence is open to abuse and it is necessary to ensure that it
is not employable as a mere cover for aggression disguised as protection, and the Court is therefore right to define it
somewhat strictly. Even so, it may be doubted whether it is helpful to suggest that the attacked State must in some more
or less formal way have ‘declared‘ itself the victim of an attack and then have, as an additional ‘requirement‘, made a
formal request to a particular third State for assistance. Thus the Court says:
*545 ‘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.‘ (Para. 199.)
It may readily be agreed that the victim State must both be in real need of assistance and must want it and that the fulfil-
ment of both these conditions must be shown. But to ask that these requirements take the form of some sort of formal de-
claration and request might sometimes be unrealistic.
But there is another objection to this way of looking at collective selfdefence. It seems to be based almost upon an idea
of vicarious defence by champions: that a third State may lawfully come to the aid of an authenticated victim of armed
attack provided that the requirements of a declaration of attack and a request for assistance are complied with. But
whatever collective self-defence means, it does not mean vicarious defence; for that way the notion is indeed open to ab-
use. The assisting State is not an authorized champion, permitted under certain conditions to go to the aid of a favoured
State. The assisting State surely must, by going to the victim State's assistance, be also, and in addition to other require-
ments, in some measure defending itself. There should even in ‘collective self-defence‘ be some real element of self
[FN4]
involved with the notion of defence. This is presumably also the philosophy which underlies mutual security ar-

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 335
rangements, such as the system of the Organization of American States, for which indeed Article 51 was specifically de-
signed. By such a system of collective security, the security of each member State is meant to be involved with the secur-
ity of the others; not merely as a result of a contractual arrangement but by the real consequences of the system and its
organization. Thus, Article 27 of the Charter of the Organization of American States provides that:
American States.‘
This, I believe, should not be regarded as a mere contractual arrangement for collective defence – a legal fiction used as a
device for arranging for mutual defence –; it is to be regarded as an organized system of collective security by which the
security of each member is made really and truly to have become involved with the security of the others, thus providing
a true *546 basis for a system of collective self-defence. This underlying philosophy of collective self-defence is well ex-
pressed in a classical definition of that concept in Lauterpacht's edition of Oppenheim's International Law (Vol. II, 1952,
p. 155):
‘It will be noted that, in a sense, Article 51 enlarges the right of self-defence as usually understood – and the corres-
ponding right of recourse to force – by authorising both individual and collective self-defence. This means that a
Member of the United Nations is permitted to have recourse to action in self-defence not only when it is itself the
object of armed attack, but also when such attack is directed against any other State or States whose safety and inde-
pendence are deemed vital to the safety and independence of the State thus resisting – or participating in forcible res-
istance to – the aggressor.‘
(Signed) R. Y. JENNINGS.
FN1 The words ‘or judicial settlement‘ were inserted after the asterisks in 1924 following the establishment of the Per-
manent Court of International Justice anticipated and referred to in Article 14.
FN1 Cf. Arechaga, 159 Collected Courses, The Hague (1978-I), at p. 87, and p. 96 where he goes so far as to assert: ‘The
so-called customary law of self-defence supposedly pre-existing the Charter, and dependent on this single word
[inherent] simply did not exist.‘
FN2 For an assessment of this important question, especially in relation to the Declaration of Principles of Friendly Rela-
tions, see Professor Arangio-Ruiz, 137 Collected Courses, The Hague (1972-III), Chap. IV.
FN3 For later views to much the same effect, see McNair, Law of Treaties, 1961, p. 217, where he speaks of these
Charter provisions as possessing ‘a constitutive or semilegislative character‘; also Brownlie, International Law and the
Use of Force by States, 1963, p. 113, e.g., ‘the difference between Article 2, paragraph 4, and 'general international law’
is the merest technicality‘; see also Tunkin, 95 Collected Courses, The Hague (1958-III). pp. 65-66.
FN4 It may be objected that the very term ‘self-defence‘ is a common law notion, and that, for instance, the French equi-
valent of ‘legitime defense‘ does not mention ‘self‘. Here, however, the French version is for once, merely unhelpful; it
does not more than beg the question of what is ‘legitime‘.
I.C.J., 1986
CASE CONCERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (

Nicaragua v. United States of America)
1986 I.C.J. 14, 1986 WL 522 (I.C.J.)

1986 I.C.J. 14, 1986 WL 522 (I.C.J.) Page 336
END OF DOCUMENT

Nicaragua v. US

Uploaded by

Copyright:

Available Formats

Nicaragua v. US

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Nicaragua v. US

Uploaded by

Copyright:

Available Formats

1986 I.C.J. 14, 1986 WL 522 (I.C.J.

1986 I.C.J. 14, 1986 WL 522 (I.C.J.)

CASE CONCERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST

International Court of Justice

June 27, 1986

General List No. 70

Judgment of 27 June 1986

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

the Republic of Nicaragua,

H.E. Mr. Carlos Arguello Gomez, Ambassador,

as Agent and Counsel,

as Counsel and Advocates,

Mr. David Wippman, Reichler and Appelbaum, Washington, D.C.,

the United States of America,

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

delivers the following Judgment:

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

79, para. 7.)

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

exclusively preliminary character‘ (ibid., para. 76).

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

Agency or the Department of Defense . . .

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.