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Digest 2

Digest 2

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Published by: Sui on Mar 22, 2009
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* bok * cj * tiff * gem * tin * public international lawuplaw 2009 b
(1984)1984 I.CJ. 169 (Provisional Measures). 1984 I.CJ. 392 (Jurisdiction).
*See the additional notes on pp.645-646 to know of some pertinent questions raised and ashort description of dissents. This digest does not include the Statement of the Legal  Adviser of the State Department (pp.646-648).
Parties: Republic of Nicaragua and the Government of the United States of America
1. NICARAGUA FILED AN APPLICATION INSTITUTING PROCEEDINGSAGAINST THE US. On 9 April 1984 the Government of Nicaragua filed anApplication instituting proceedings against the United States of America,accompanied by a request for the indication of provisional measures, in respect of a dispute concerning responsibility for military and paramilitary activities in andagainst Nicaragua. As basis for the jurisdiction of the Court it invoked onedeclaration accepting the Court's jurisdiction deposited by the two States under Article 36 of the Statute of the Court.2. US APPOINTS AN AGENT. On 13 April 1984, by a letter from its Ambassador to the Netherlands, the US Govt informed the Court that it had appointed an Agentfor the purposes of the case while indicating its conviction that the Court waswithout jurisdiction to deal with the Application and was a fortiori without jurisdiction to indicate the provisional measures requested by Nicaragua.3. COURT DECISION RE THE REQUEST FOR PROVISIONAL MEASURES.Having heard the oral observations of both Parties on the request for provisionalmeasures at public sittings on 25 and 27 April 1984, the Court held on 10 May1984 a public sitting at which it delivered an Order indicating such measures. Theoperative provisions are as follows:"THE COURT,A. Unanimously,Rejects the request made by the United States of America thatthe proceedings on the Application filed by the Republic of Nicaragua on9 April 1984, and on the request filed the same day by the Republic of Nicaragua for the indication of provisional measures, be terminated by^the removal of the case from the list;B. Indicates, pending its final decision in the proceedings xxxthe following provisional measures:1. Unanimously,The United States of America should immediately cease and re-frain from any action restricting, blocking or endangering access to or from Nicaraguan ports, and, in particular, the Iaying of mines;2. By fourteen votes to one,The right to sovereignty and to political independencepossessed by xxx Nicaragua, xxx should be fully respected and shouldnot in any way be jeopardized by any military and paramilitary activitieswhich are prohibited by the principles of international law, in particular the principle that States should refrain in their international relations fromthe threat or use of force against the territorial integrity or the politicalindependence of any State, and the principle concerning the duty not tointervene in matters within the domestic jurisdiction of a State xxx3. Unanimously,xxx United States xxx and xxxNicaragua should each of themensure that no action of any kind is taken which might aggravate or extend the dispute;4. Unanimously,xxx United States xxx and xxx Nicaragua should each of themensure that no action is taken which might prejudice the rights of theother Party in respect of the carrying out of whatever decision the Courtmay render xxx;C. Unanimously,Decides further that, until the Court delivers its final judgmentxxx, it will keep the matters covered by this Order continuously under review;D. Unanimously,Decides that the written proceedings shall first be addressed tothe questions of the jurisdiction of the Court to entertain the dispute andof the admissibility of the Application;And reserves the fixing of the time-limits for the said writtenproceedings, and the subsequent procedure, for further decision."3. PARTIES IMMEDIATELY NOTIFIED THE PARTIES OF THE INDICATION OFTHESE MEASURES. In accordance with Art 41, para 2, of the Statute of theCourt, the Registrar immediately notified the Parties and the Security Council of the indication of these measures.4. TIME LIMITS FOR THE FILING OF PLEADINGS. By an Order of 14 May 1984the President of the Court fixed the following time-limits for the filing of pleadingsaddressed to the questions of jurisdiction and admissibility: 30 June 1984 for theMemorial of Nicaragua, and 17 August 1984 for the Counter-Memorial of theUnited States. These pleadings were filed within the prescribed time-limits.5. EL SALVADOR DECLARES INTENTION TO INTERVENE. On 15 August 1984,before the expiration of the time-limits, the Republic of El Salvador filed aDeclaration of Intervention under Article 63. In its Declaration, El Salvador statedthat the purpose of its intervention was to enable it to maintain that the Court hadno jurisdiction to entertain Nicaragua's application. In this connection, it referred tocertain multilateral treaties on which Nicaragua relies in its dispute with the UnitedStates.6. COURT’S HOLDING REGARDING THE INTEVENTION. Having regard to thewritten observations on that Declaration submitted by the Parties in accordancewith Article 83, on 4 October 1984 the Court made an Order, the operativeprovisions are as follows:"THE COURT,(i) By nine votes to six,
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Decides not to hold a hearing on the Declaration of Interventionof the Republic of El Salvador.(ii) By fourteen votes to one,Decides that the Declaration of intervention of the Republic of ElSalvador is inadmissible inasmuch as it relates to the current phase of the proceedings brought by Nicaragua against the United States of America.7. NICARAGUA APPOINTS JUDGE AD HOC. From 8-18 October 1984, the Courtheld nine public sittings. The Judge ad hoc appointed by Nicaragua under Article31, Mr. C.-A. Colliard, participated in the work of the Court from this stage of theproceedings.8. COURT DELIVERS JUDGMENT. At a public sitting held on 26 November 1984,the Court delivered its Judgment.
I. The Question of the Jurisdiction of the Court to Entertain the Dispute (paras. 12-83)A. The Declaration of Nicaragua and Art 36, para 5 of the Statute of the Court(paras. 12-51)1. NICARAGUA’S BASIS FOR COURT JURISDICTION. To found the jurisdictionof the Court, Nicaragua relied on Article 36 and the declarations accepting thecompulsory jurisdiction of the Court made by the US and itself.2. THE RELEVANT TEXTS AND THE HISTORICAL BACKGROUND TONICARAGUA'S DECLARATION (PARAS. 12-16). On 6 April 1984 the USdeposited with the UN Sec-Gen a notification signed by the Secretary of State, Mr.George Shultz, referring to the declaration of 1946, and stating that:"the aforesaid declaration shall not apply to disputes with any Central.American State or arising out of or related to events in Central America,any of which disputes shall be settled in such manner as the, parties xxxmay agree."xxx this proviso shall take effect immediately and shall remain in forcefor two years, so as to foster the continuing regional dispute settlementprocess which seeks a negotiated solution to the interrelated political,economic and security problems of Central America."In order to be able to rely upon the United States declaration of 1946 to found jurisdiction in the present case, Nicaragua has to show that it is a "State acceptingthe same obligation" as the United States • within the meaning of Article 36,paragraph 2.For this purpose, it relies on a declaration made by it on 24 September 1929pursuant to Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice, which provided that:"The Members of the League of Nations and the States mentioned in theAnnex to the Covenant may, either when signing or ratifying the Protocolto which the present Statute is adjoined, or at a later moment, declarethat they recognize as compulsory ipso facto and without specialagreement, in relation to any other Member or State accepting the sameobligation, the jurisdiction of the Court • • • "in any of the same categories of dispute as listed in Art 36, para 2.Nicaragua relies further on Art 36, para 5, which provides that:"Declarations made under Article 36 of the Statute of the PermanentCourt of International Justice and which are still in force shall bedeemed, as between the parties to the present Statute, to beacceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance withtheir terms."The Judgment recalls the circumstances in which Nicaragua made its declaration:on 14 September 1929, as a Member of the League of Nations, it signed theProtocol of Signature of the Statute of the Permanent Court of InternationalJustice: this provided that it was subject to ratification and that instruments of ratification were to be sent to the Sec-Gen of the League of Nations. On 24September 1929 Nicaragua deposited with the Sec-Gen a declaration under Art36, para 2, which reads:[Translation from the French]"On behalf of the Republic of Nicaragua I recognize as compulsoryunconditionally the jurisdiction of the Permanent Court of InternationalJustice.Geneva, 24 September 1929.(Signed) T.F. MEDINA."The national authorities in Nicaragua authorized its ratification, and, on 29November 1939, the Ministry of Foreign Affairs of Nicaragua sent a telegram tothe Sec-Gen advising him of the despatch
(pramis “despatch” talaga – tiff)
of theinstrument of ratification. The files of the League, however, contain no record of an instrument ever having been received and no evidence has been adduced toshow that such an instrument was ever despatched to Geneva. After WWII,Nicaragua became an original Member of the UN, having ratified the Charter on 6September 1945; on 24 October 1945 the Statute of the ICJ, which is an integralpart of the Charter, came into force.3. THE ARGUMENTS OF THE PARTIES (PARAS. 17-23) AND THE REASONINGOF THE COURT (PARAS. 24-42).a. US CONTENTION. US contends that Nicaragua never became a party to theStatute of the Permanent Court and that its 1929 declaration was therefore not"still in force" within the meaning of the English text of Art 36, para 5.In the light of the arguments, the Court sought to determine whether Art 36, para5, could have applied to Nicaragua's declaration of 1929.The Court notes that the Nicaraguan declaration was valid at the time when thequestion of the applicability of the new Statute, that of the ICJ, arose, since under the system of the Permanent Court of International Justice a declaration was valid
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only on condition that it had been made by a State which had signed the Protocolof Signature of the Statute. It had not become binding under that Statute, sinceNicaragua had not deposited its instrument of ratification and it was therefore nota party to the Statute. However, it is not disputed that the 1929 declaration couldhave acquired binding force. All that Nicaragua need have done was to deposit itsinstrument of ratification, and it could have done that at any time until the day onwhich the new Court came into existence. It follows that the declaration had acertain potential effect which could be maintained for many years. Having beenmade "unconditionally" and being valid for an unlimited period, it had retained itspotential effect at the moment when Nicaragua became a party to the Statute of the new Court.To reach a conclusion on whether the effect of a declaration which did not havebinding force at the time of the Permanent Court could be transposed to the ICJthe operation of Art 36, para 5, the Court took several considerations into account.i. As regards the French phrase "pour une duree qui n'est pas encoreexpires" applying to declarations made under the former system, theCourt does not consider it to imply that "la duree non expiree" (theunexpired period) is that of a commitment of a binding character. Thedeliberate choice of the expression seems to denote an intention towiden the scope of Art 36, para 5, so as to cover declarations which havenot acquired binding force. The English phrase "still in force" does notexpressly exclude a valid declaration of unexpired duration, made by aState not party to the Protocol of Signature of the Statute, and thereforenot of binding character.ii. With regard to the considerations governing the transfer of the powersof the former Court to the new one, the Court takes the view that theprimary concern of those who drafted its Statute was to maintain thegreatest possible continuity between it and the Permanent Court and thattheir aim was to ensure that the replacement of one Court by another should not result in a step backwards in relation to the progressaccomplished towards adopting a system of compulsory jurisdiction.Nicaragua may therefore be deemed to have given its consent to thetransfer of its declaration to the International Court of Justice when itsigned and ratified the Charter, thus accepting the Statute and its Art 36,para 5.iii. Concerning the publications of the Court referred to by the Parties for opposite reasons, the Court notes that they have regularly placedNicaragua on the list of those States that have recognized thecompulsory jurisdiction of the Court. The attestations furnished by thesepublications have been entirely official and public, extremely numerousand have extended over a period of nearly 40 years. The conduct of States parties to the Statute has confirmed the interpretation of Art 36,para 5, whereby the provisions of this Article cover the case of Nicaragua.4. THE CONDUCT OF THE PARTIES (PARAS. 43-51) [AS NICARAGUA’S BASISFOR RECOGNIZING COMPULSORY JURISDICTION].a. NICARAGUS’ CONTENTION. Nicaragua also contends that the validity of Nicaragua's recognition of the compulsory jurisdiction of the Court finds anindependent basis in the conduct of the Parties, that its conduct over 38 yearsunequivocally constitutes consent to be bound by the compulsory jurisdiction of the Court, that the conduct of the United States over the same periodunequivocally constitutes its recognition of the validity of the declaration of Nicaragua of 1929 as an acceptance of the compulsory jurisdiction of the Court.b. US CONTENTION. The United States, however, objects that the contention of Nicaragua is inconsistent with the Statute and, in particular that compulsory jurisdiction must be based on the clearest manifestation of the State's intent toaccept it. After considering Nicaragua's particular circumstances, the Courtconsiders that, having regard to the source and generality of statements to theeffect that Nicaragua was bound by its 1929 declaration, it is right to conclude thatthe constant acquiescence of that State in those affirmations constitutes a validmode of manifestation of its intent to recognize the compulsory jurisdiction of theCourt. It further considers that the estoppel on which the United States has reliedand which would have barred Nicaragua from instituting proceedings against it,cannot be said to apply to it.Court finding: the Nicaraguan declaration of 1929 is valid; that Nicaraguaaccordingly was, for the purposes of Art 36, para 2, a "State accepting the sameobligation" as the US at the date of filing of the Application and could thereforerely on the United States declaration of 1946.B. The Declaration of the US (paras. 52-76) The Notification of 1984 (paras. 52-66)1. The acceptance of the jurisdiction of the Court by the US on which Nicaraguarelies is the result of the United States declaration of 14 August 1946. However,the United States argues that effect should be given to the letter sent to the UNSec-Gen on 6 April 1984. It is clear that if this notification were valid as againstNicaragua at the date of filing of the Application, the Court would not have jurisdiction under Art 36.2. COURT’S TAKE ON THE EFFECT OF THE 1984 NOTIFICATION. After outlining the arguments of the Parties, the Court points out that the most importantquestion relating to the effect of the 1984 notification is whether the United Stateswas free to disregard the six months' notice clause which, freely and by its ownchoice, it has appended to its declaration, in spite of the obligation it has enteredinto vis-a-vis other States which have made such a declaration. The US hasargued that the Nicaraguan declaration, being of undefined duration, is liable toimmediate termination, and that Nicaragua has not accepted "the sameobligation" as itself and may not rely on the time-limit proviso against it. The Courtdoes not consider that this argument entitles the United States validly to derogatefrom the time-limit proviso in its 1946 declaration. The notion of reciprocity isconcerned with the scope and substance of the commitments entered into,including reservations, and not with the formal conditions of their creation,duration or extinction. Reciprocity cannot be invoked in order to excuse departurefrom the terms of a State's own declaration. US cannot rely on reciprocity sincethe Nicaraguan declaration contains no express restriction at all. On the contrary,
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