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Edgardo Sobenes Obregon
Benjamin Samson Editors
| Nicaragua
Before the
International
Court of Justice
Impacts on International Law
Springer
Nicaragua Before the International Court of Justice
Edgardo Sobenes Obregon • Benjamin Samson
Editors
Nicaragua Before the

International Court of Justice
Impacts on International Law ^ Springer
Editors
Benjamin Samson
Edgardo Sobenes University Paris Nanterre
Obregon Embassy of Paris, France
Nicaragua in The Hague The Netherlands
ISBN 978-3-319-62961-2 ISBN 978-3-319-62962-9 (eBook)

DOI 10.1007/978-3-319-62962-9
Library of Congress Control Number: 2017953960
© Springer International Publishing AG 2018
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Editors’ Note and Acknowledgements
At the very beginning the idea behind the preparation of this

book was to commemorate the 30th Anniversary of the 1986
Judgment in the case concerning the Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America).
However, it became obvious that the contributions embodied
in the jurisprudence of the cases to which Nicaragua has been
a party extend well beyond the case against the United
States, which is why it was decided that the approach should
be general.
Until now, the general contributions of the Nicaraguan
cases had not been put together in a single book nor have
they been analyzed with a thematic approach and according
to their procedural, jurisdictional, or substantive nature.
Evidently, 14 cases and more than 30 years of jurisprudence
cannot be limited to a single volume. For this reason,
Nicaragua before the International Court of Justice aims at
identifying and discussing findings of the ICJ which constitute
contributions to the development of international law and on
which other courts and tribunals, international and national,
international organisations and States have later sought
support. We are confident that it fulfills this objective and will
provide useful material to students, scholars, and practitioners
of international law. This book should further be considered
as an invitation to continue with the analysis and the
dissemination of Nicaragua’s contributions to international law
v
through its commitment to international justice.
We would like to express our deep gratitude to the
contributors for their participation in the process of reflection,
analysis, and writing of the legal issues addressed in this
book, as well as for their patience and understanding during
the editing process. The views and opinions expressed in this
book are those of the contributors and do not necessarily
reflect the views and opinions of the Republic of Nicaragua.
We would also like to deeply thank Ms. Tessa Barsac, who,
with her help and support, made possible the completion of
the book.
vi
vii Editors’ Note and Acknowledgements
Finally, we wish to dedicate this book to all States, which,

like Nicaragua, are committed to international justice and to
all scholars and practitioners of international law, especially to
those that through the years have been permanent pillars in
the defense of international law.
The Hague, The Netherlands Edgardo Sobenes
Obregon
Paris, France Benjamin
Samson
8 Chronological List of Cases of Nicaragua Before the International Court of Justice
Chronological List of Cases of Nicaragua Before

the International Court of Justice
1958: Arbitral Award Made by the King of Spain on 23 December

1906 (Honduras v. Nicaragua)
Judges Ad Hoc Ago, Urrutia Holguin1
1 July 1958 Application

instituting proceedings 5 January 1959
Memorial of Honduras 5 May 1959 Counter-Memorial of Nicaragua
3 August 1959 Reply of Honduras
4 January 1960 Rejoinder of Nicaragua
15 September to 11 October 1960 Oral Arguments Judgment of 18 November 1960
1984: Military and Paramilitary Activities in and Against

Nicaragua (Nicaragua v. United States of America)
Judge Ad Hoc Colliard
9 April 1984 Application instituting proceedings

Provisional Measures
9 April 1984 Request for the Indication of Provisional Measures of
Protection filed
by Nicaragua
1 Judges Ad hoc included in this chronological list are those

reflected in the Judgments of the Merits of each case. In
regard to the Judges Ad hoc of the pending cases, the Judges
are those appointed by the Parties at the date of publication
of this book.
25 and 27 April 1984 Oral Arguments Order of
10 May 1984
Questions of Jurisdiction and/or Admissibility

30 June 1984 Memorial of Nicaragua
17 August 1984 Counter-Memorial of the United States of
America 8 to 18 October 1984 Oral Arguments Judgment of 26
November 1984
Declaration of Intervention
15 August 1984 Declaration of Intervention of El Salvador (Article 63
of the Statute)
10 September 1984 Written Observations on the Declaration
of Intervention (Nicaragua, United States of America)
Order of 4 October 1984
Merits
30 April 1985 Memorial of Nicaragua 12 to 20
September 1985 Oral Arguments Judgment of 27
June 1986
Reparation
29 March 1988 Memorial of Nicaragua
Order of 26 September 1991 (Removal from
list)
1986: Border and Transborder Armed Actions (Nicaragua

v. Costa Rica)
28 July 1986 Application

instituting
proceedings 10 August 1987 Memorial of
Nicaragua 12 August 1987 Request for
discontinuance Order of 19 August 1987
(Removal from list)
9
Chronological List of Cases of Nicaragua Before the International Court of Justice x
1986: Border and Transborder Armed Actions

(Nicaragua v. Honduras)
28 July 1986 Application instituting proceedings Provisional
Measures
21 March 1988 Requestfor the Indication of Provisional
Measures filed by Nicaragua and letter notifying the
withdrawal of the request
Order of 31 March 1988 (Withdrawal of Request for the indication
of Provisional Measures)
Questions of Jurisdiction and/or Admissibility
23 February 1987 Memorial of Honduras
22 June 1987 Counter-memorial of Nicaragua 6 to 15 June 1988 Oral Arguments
Judgment of 20 December 1988
Order of 27 May 1992 (Removal from list)
1986: Land, Island and Maritime Frontier Dispute (El

Salvador/Honduras: Nicaragua Intervening)
Judges Ad Hoc Valticos, Torres Bernárdez
Intervention
17 November 1989 Application for Permission to Intervene by the
Government of Nicaragua
8 January 1990 Written Observations of El Salvador 15 January 1990 Written
Observations of Honduras Order of 28 February 1990 5 to 8 June 1990 Oral
Arguments Judgment of 13 September 1990
Merits
Judgment of 11 September 1992
Chronological List of Cases of Nicaragua Before the International Court of Justice 11
1999: Territorial and Maritime Dispute Between

Nicaragua and Honduras in the Caribbean Sea (Nicaragua
v. Honduras)
Judges Ad Hoc Torres Bernandez, Gaja
8 December 1999 Application instituting proceedings 21 March

2001 Memorial of Nicaragua 21 March 2002 Counter-Memorial
of Honduras 13 January 2003 Reply of Nicaragua 13 August 2003
Rejoinder of Honduras 5 to 23 March 2007 Oral Arguments
Judgment of 8 October 2007
2001: Territorial and Maritime Dispute (Nicaragua v.

Colombia)
Judges Ad Hoc Mensah, Cot
6 December 2001 Application instituting proceedings Preliminary
Objections
21 July 2003 Preliminary Objections of Colombia 26 January
2004 Written Statement of Nicaragua 4 to 8 June 2007 Oral
Arguments Judgment of 13 December 2007
Application for Permission to Intervene
25 February 2010 Application for Permission to Intervene by Costa
Rica
26 May 2010 Written Observations of Nicaragua and Colombia
10 June 2010 Application for Permission to Intervene by Honduras
2 September 2010 Written Observations of Nicaragua and Colombia
11 to 22 October 2010 Oral Arguments Judgments of 4 May 2011
Merits
28 April 2003 Memorial of Nicaragua 11 November 2008 Counter-
Memorial of Colombia 18 September 2009 Reply of Nicaragua 18 June
2010 Rejoinder of Colombia 23 April to 4 May 2012 Oral Arguments
Judgment of 19 November 2012
2
Costa Rica chose H.E. Judge Antonio Cancado Trindade. Mr. Cancado Trindade
was subsequently elected as a Member of the Court and Costa Rica informed the Court that it
had decided not to choose a new judge ad hoc.
2005: Dispute Regarding Navigational and Related Rights (Costa Rica v.

Nicaragua)
Judge Ad Hoc Guillaume2
29 September 2005 Application instituting proceedings

29 August 2006 Memorial of Costa Rica
27 May 2007 Counter-memorial of Nicaragua
15 January 2008 Reply of Costa Rica
15 July 2008 Rejoinder of Nicaragua
2 to 12 March 2009 Oral Arguments
Judgment of 13 July 2009
2010: Certain Activities Carried Out by Nicaragua in the Border Area

(Costa Rica v. Nicaragua)
Judges Ad Hoc Guillaume, Dugard
18 November 2010 Application instituting proceedings Provisional Measures

18 November 2010 Request by Costa Rica for the Indication of Provisional
Measures 11 to 13 January 2011 Oral Arguments Order of 8 March 2011
23 May 2013 Request by Costa Rica for the modification of the
Court’s Order indicating provisional measures
14 June 2013 Written observations of Nicaragua and Request by Nicaragua
for the modification of the Order in light of the joinder of the
proceedings in the two cases 20 June 2013 Written observations of Costa
Rica on Nicaragua’s Request for the modification of the Court’s Order
indicating provisional measures in the Costa Rica v. Nicaragua case Order
of 16 July 2013
24 September 2013 Request by Costa Rica for the Indication of new
14 to 17 October 2013 Oral Arguments Order of 22 November 2013
Merits and Counter-claims
5 December 2011 Memorial of Costa Rica
6 August 2012 Counter-Memorial of Nicaragua (including counter-claims)
30 November 2012 Written observations of Costa Rica on the admissibility
of Nicaragua’s counter-claims
30 January 2013 Written observations of Nicaragua on the admissibility of
Chronological List of Cases of Nicaragua Before the International Court of Justice 13
its counter-claims
Order of 17 April 2013 (Joinder of proceedings)
Order of 18 April 2013 (Counter-claims)
14-29 April 2015 Oral Arguments Judgment
of 16 December 2015
2011: Construction of a Road in Costa Rica Along the San Juan

River (Nicaragua v. Costa Rica)
Judges Ad Hoc Guillaume, Dugard
21 December 2011 Application instituting proceedings
11 October 2013 Request by Nicaragua for the Indication of Provisional
Measures Order of 13 December 2013 Request by Nicaragua for the Indication
of Provisional Measures
Merits
19 December 2012 Memorial of Nicaragua 19 December
2013 Counter-Memorial of Costa Rica Order of 17 April
2013 Joinder of proceedings 4 August 2014 Reply of
Nicaragua 2 February 2015 Rejoinder of Costa Rica
14-29 April 2015 Oral Arguments Judgment of 16 December
2015
2
Costa Rica chose H.E. Judge Antonio Cancado Trindade. Mr. Cancado Trindade
was subsequently elected as a Member of the Court and Costa Rica informed the Court that it
had decided not to choose a new judge ad hoc.
Chronological List of Cases of Nicaragua Before the International Court of Justice xiv
PENDING CASES BEFORE THE INTERNATIONAL COURT

OF JUSTICE.
2013: Question of the Delimitation of the Continental

Shelf Between Nicaragua and Colombia Beyond 200
Nautical Miles from the Nicaraguan Coast (Nicaragua v.
Colombia)
Judges Ad Hoc Skotnikov, Brower
16 September 2013 Application instituting proceedings Preliminary
Objections
14 August 2014 Preliminary Objections of Colombia 19 January
2015 Written Statement of Nicaragua 5 to 9 October 2015 Oral
Arguments Judgment of 17 March 2016
Merits
28 September 2016 Memorial
of Nicaragua 28 September 2017
Counter-Memorial of Colombia
2013: Alleged Violations of Sovereign Rights and

Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia)
Judges Ad Hoc Daudet, Caron
26 November 2013 Application instituting proceedings Preliminary
Objections
19 December 2014 Preliminary Objections of Colombia
20 April 2015 Written Statement of Nicaragua
28 September to 2 October 2015 Oral Arguments Judgment of 17 March
2016
Merits
3 October 2014 Memorial
of Nicaragua 17 November 2016
Counter-Memorial of Colombia
2014: Maritime Delimitation in the Caribbean
Sea and the Pacific Ocean (Costa Rica v.
Nicaragua)
Judges Ad Hoc Simma, Al-Khasawneh
25 February 2014 Application instituting proceedings

Order of 02 February 2017 Joinder
of
proceedings 3 February 2015 Memorial of
Costa Rica 9 December 2015 Counter-
Memorial of Nicaragua 3-14 July 2017 Oral
Arguments
2017: Land Boundary in the Northern Part of Isla

Portillos (Costa Rica v. Nicaragua)
Judges Ad Hoc Simma, Al-Khasawneh
16 January 2017 Application instituting proceedings

Order of 02 February 2017 Joinderof
proceedings 2 March 2017 Memorial of
Costa Rica 18 April 2017 Counter-Memorial
of Nicaragua 3-14 July 2017 Oral
Arguments
xv
Contents
Part I Introduction
Introduction from the Bench...............................................................................3
Mohammed Bedjaoui
Introduction from the Podium............................................................................15
Alain Pellet
Part II Evidentiary Matters

Nicaragua v. United States and Matters of Evidence Before the International Court
of Justice......................................................................................................................43
Paul S. Reichler and Yuri B. Parkhomenko
Part III The Nicaraguan Sagas Before the International Court of

Justice (Overviews)
The Nicaragua v. United States Case: An Overview of the Epochal Judgments. .59
Fernando Lusa Bordin
The Saga of the 1858 Treaty of Limits: The Cases Against
Costa Rica...................................................................................................................85
Daniel Muller
The Territorial and Maritime Dispute (Nicaragua v. Colombia) and Its
Implications for Future Maritime Delimitations in the Caribbean Sea
and Elsewhere...........................................................................................................113
Lawrence H. Martin and Yuri B. Parkhomenko
xvii Contents
Part IV Jurisdictional Issues in the Nicaraguan Cases

The Pact of Bogota in the Jurisprudence of the International Court of Justice. 143
Antonio Remiro BrotOns
Nicaragua’s Impacts on Optional Clause Practice............................................179
Brian McGarry
Part V Substantive Issues in the Nicaraguan Cases

Nicaragua in the International Court of Justice and the Law
of Treaties.................................................................................................................215
Antonios Tzanakopoulos and Anna Ventouratou
Customary Law, General Principles, Unilateral Acts...........................................247
Malgosia Fitzmaurice
Customary Principle of Sovereignty of States in the Nicaragua Case . . . 269
Vaughan Lowe
The Law of State Responsibility in the Nicaraguan Cases...............................281
Benjamin Samson and Tessa Barsac
The Use of Force in the Nicaraguan Cases.........................................................305
William Schabas
International Law of the Sea and theNicaraguan Cases..................................327
Donald R. Rothwell
Environmental Law and Freshwater Ecosystems.............................................347
Stephen C. McCaffrey
Part VI Procedural Issues in the Nicaraguan Cases

Intervention..............................................................................................................371
Alina Miron
Provisional Measures...............................................................................................397
Hugh Thirlway
Joinder of Cases: Strengthening the Sound Administration of Justice
and the Judicial Economy........................................................................................413
Part VII Conclusions

Conclusions...............................................................................................................429
Pierre d’Argent
Index..........................................................................................................................433
xviii Contributors
Contributors
Tessa Barsac University of Paris Nanterre, Nanterre, France

University of Leiden, Leiden, The Netherlands
Mohammed Bedjaoui Insitut de Droit International, Geneva,
Switzerland
Fernando Lusa Bordin Faculty of Law and Lauterpacht Centre for
International Law, Sidney Sussex College, University of
Cambridge, Cambridge, UK
Pierre d’Argent University of Louvain, Louvain, France
Malgosia Fitzmaurice Department of Law, Queen Mary, University of
London, London, UK
Vaughan Lowe Essex Court Chambers, London, UK
Lawrence H. Martin Foley Hoag LLP, Washington, DC, USA
Stephen C. McCaffrey McGeorge School of Law, University of the
Pacific, Sacramento, CA, USA
Brian McGarry The Graduate Institute of International and
Development Studies, Geneva, Switzerland
Alina Miron University of Angers, Angers, France
Daniel Müller Avocat a la Cour, Docteur en droit, Paris, France
Yuri B. Parkhomenko Foley Hoag LLP, International Litigation and

Arbitration Department, Washington, DC, USA
Alain Pellet University of Paris Nanterre, Nanterre, France
Paul S. Reichler International Litigation and Arbitration Department,
Foley Hoag LLP, Washington, DC, USA
Antonio Remiro Brotons Public International Law and International
Relations, Universidad Autonoma de Madrid, Madrid, Spain
Donald R. Rothwell ANU College of Law, Acton, ACT, Australia
Benjamin Samson University Paris Nanterre, Paris, France
George Washington University Law School, Washington, DC,
USA
William Schabas Middlesex University, London, UK
Leiden University, Leiden, The Netherlands
National University of Ireland, Galway, Ireland
Edgardo Sobenes Obregon Institute of Law and Economics, ISDE and
University of Barcelona, Barcelona, Spain
Embassy of Nicaragua in The Hague, The Hague, The
Netherlands Universidad Centro Americana UCA, Managua,
Nicaragua University of Leiden, Leiden, The Netherlands Hugh
Thirlway The Hague, Netherlands
Antonios Tzanakopoulos Faculty of Law, St Anne’s College, University
of Oxford, Oxford, UK
Anna Ventouratou St Catherine’s College, University of Oxford,
Oxford, UK
University of Athens, Athens Public International Law Research
Centre, Athens, Greece
xi
x
20 Contributors
List of Abbreviations
AFDI AIDI AJIL Arb Int ASIL Annuaire français de droit international
Austrian Rev Int Eur Law Annuaire de l’Institut de Droit international
American Journal of International Law
Arbitration International
American Society of International Law
Austrian Review of International and European
Law
AYbIL
BFSP
Boston Coll Int Comp Law Austrian Yearbook of International Law British and
Rev Foreign State Papers Boston College International and
BYbIL Comparative Law Review
Camb J Int Comp Law British Yearbook of International Law Cambridge
Journal of International and Comparative Law
CIA Central Intelligence Agency Commission on the Limits
CLCS of the Continental Shelf Collected Courses of The
Collect Course Hague Acad Int Hague Academy of International Law
Law Columbia Journal of Transnational Law Cambridge
University Press
Columbia J Transnatl Law
Extraordinary Chambers in the Courts of Cambodia
CUP
ECCC
ECHR
EIoP
EJIL European Courts of Human Rights European
GATT Integration online Papers European Journal of
GYbIL International Law General Agreement on Tariffs and
Hague YbIL Trade German Yearbook of International Law Hague
Harv Int Law J Yearbook of International Law Harvard International
Harv J Law Public Policy Law Journal Harvard Journal of Law and Public Policy
Harv Law Rev Harvard Law Review
21
Houst JIL
Hum Rights Law Rev
xxii
IACHR List of Abbreviations
IAJC
ICJ Houston Journal of International Law
ICLQ Human Rights Law Review Inter-
ICSID
American Court of Human Rights Inter-
ICTR American Juridical Committee
ICTY
International Court of Justice
ILC International and Comparative Law
ILM Quarterly International Centre for
ILR
Int J Mar Coast Law Settlement of Investment Disputes
ITLOS International Criminal Tribunal for
JIDS Rwanda International Criminal Tribunal
J Use Force Int Law
KAV for the former Yugoslavia
LJIL International Law Commission
LPICT International Legal Materials
LNTS International Law Reports
Max Planck Yb UN Law International Journal of Marine and
Melb JIL
Coastal Law International Tribunal for
Mich JIL
MPEPIL the Law of the Sea Journal of
NILR International Dispute Settlement Journal
Nordic JIL on the Use of Force and International
NYbIL
OAS Law KAV Agreements
OED Leiden Journal of International Law
OUP Law and Practice of International Courts
Oxf J Leg Stud
PCA and
PCIJ Tribunals
Rev Esp Der Int League of Nations Treaty Series
Rev Law Econ
RGDIP Max Planck Yearbook of United Nations
RIAA Law
SCSL Melbourne Journal of International Law
SFDI
SNLF Michigan Journal of International Law
STL Max Planck Encyclopedia of
International Law
Netherlands International Law Review
Nordic Journal of International Law
Netherlands Yearbook of International Law
Organization of American States
Oxford English Dictionary
Oxford University Press
List of Abbreviations xxiii
Oxford Journal of Legal Studies

Permanent Court of Arbitration
Permanent Court of International Justice
Revista espabola de derecho internacional
Review of Law and Economics
Revue genérale de droit international public
Reports of International Arbitral Awards
Special Court for Sierra Leone
Societe francaise pour le droit international
Sandinista National Liberation Front (FSLN)
Special Tribunal for Lebanon
List of Abbreviations xxiv
TIAS
Tx Int Law J Treaties and other International Acts Series Texas
UN International Law Journal United Nations
UNCLOS United Nations Convention on the Law of the Sea
UNGA United Nations General Assembly
UNSC United Nations Security Council
UNTS United Nations Treaty Series
Va Law Rev Virginia Law Review
VCLT Vienne Convention on the Law of Treaties
WTO World Trade Organization
Yale Law J Yale JIL Yale Law Journal
YbILC ZaORV Yale Journal of International Law
Yearbook of the International Law Commission
Zeitschrift für ausländisches öffentliches Recht
und Volkerrecht
Part I
Introductio
n
Introduction from the Bench
The Fourteen Journeys of Nicaragua to The Hague
Mohammed Bedjaoui
Abstract One must be grateful to those who had the fruitful

idea of devoting a publication to a retrospective of all the
cases decided by the International Court of Justice to which
Nicaragua has been a Party. Nicaragua offered the Court the
opportunity to pronounce on virtually all international law,
including its most important principles and rules, and to draw
up a rich body of case-law, the soundness and utility of which
are attested by the consistency with which the Court refers to
them in its decisions. The small Latin-American State has
further helped restoring the confidence of States in the Court
by filing in 1984 its case against the United States.
One must be grateful to those who had the fruitful idea of

devoting a publication to a retrospective of all the cases
decided by the International Court of Justice to which
Nicaragua has been a Party either as Applicant or as
Respondent. Not because that State is, by the number of
cases, the first ‘client’ of the Court. The first ‘client’, often
against its will, is undoubtedly the United States of America
with, as of today, twenty-three cases before the Court. The
second ‘clients’ are the United Kingdom and France, which
have participated in fourteen cases each.
Recently Nicaragua has joined the two latter States with
fourteen cases. This figure, however, remains very
appreciable in itself.1But the striking feature is the fact that
these cases concerning Nicaragua are among the richest
litigations decided by the International Court of Justice.
Nicaragua thus enjoys the rare privilege of having offered the
Court the opportunity to pronounce on virtually all
international law and, in particular, to apply its most
important principles and rules. In the cases involving 3
Nicaragua, the Court was thus able to draw up a rich body of
4 M. Bedjaoui
case-law,
Disclaimer: The views and opinions expressed in this chapter

are those of the author and do not necessarily reflect the
views and opinions of the International Court of Justice.
Just after Nicaragua, Serbia follows with ten cases, Germany,
Belgium and Colombia with seven cases each, Democratic
Republic of the Congo, Costa Rica, Honduras and Libya with
six cases each, and Australia and India with five cases each.
M. Bedjaoui (*)
Insitut de Droit International,
Geneva, Switzerland e-mail:
mohabedj@yahoo.com

E. Sobenes Obregon, B. Samson (eds.), Nicaragua Before
the International Court of Justice, DOI 10.1007/978-3-319-
62962-9_1
Introduction from the Bench 5
the soundness and utility of which are attested by the

consistency with which the Court refers to them in its decisions.
*
**
Some States have an excessive tendency to perceive

international judicial settlement as an attack on their
sovereignty, for which they are always on the alert. This can
be demonstrated by the fact that, today, only one third of
States have accepted the Optional Clause on compulsory
jurisdiction. If, moreover, one takes into account the nature
of the political regime in place in the 1980s in Nicaragua, one
wonders how a markedly left-wing Sandinista power could
play the international justice card with so much perseverance.
Neither the composition of the International Court of Justice
nor the applicable law borrowed anything from revolutionary
theories of governance. Cuba never seized the International
Court of Justice when it considered itself threatened by the
United States.
Managua’s recourse to international judicial settlement no
doubt reflects the simple reality of the absence of any other
accessible option for Nicaragua. The referral to the
International Court of Justice was probably made by a few
men who believed in the virtues of international judicial
settlement as one of the means of obtaining justice and
restoring peace. If this hypothesis is correct, we must
undoubtedly mention among these lucid men the Ambassador
Carlos Arguello Gomez.
I remember this young man, who had already been
appointed Ambassador of his country to the Kingdom of the
Netherlands and Agent before the International Court of
Justice. According to his colleagues—including Ambassadors
of the Maghreb States, whom I met during cocktails in the
‘social life’ of the Dutch ‘diplomatic capital’—he was, whatever
the circumstances, calm to the point of placidity. Reflective
and coolly determined in his objectives, he used his words
sparingly so that each would make an impression. He once
6 M. Bedjaoui
outlined for these Ambassadors the underlying reason for

Nicaragua’s use of the Court. His country considered it very
important that the United States be condemned by the Court,
an institution whose establishment the United States had
strongly supported. It was somehow a ‘selfsanction’ of the
United States by an organ that was not at all foreign to them.
Ambassador Arguello seemed to be well acquainted with
the jurisprudence of the International Court of Justice. He
knew that this high court had begun its mission of
contributing to the maintenance of world peace by rendering
its resounding Judgment in the Corfu Channel case, in which it
did not hesitate to criticize the actions directed against a small
State, Albania, by the world’s former maritime power, the
United Kingdom. Ambassador Arguello had the right to dream
that the same high court could repeat this feat four decades
later by condemning the world’s leading power, the United
States, for its activities and those of its allies against another
State, Nicaragua.
This young Ambassador-Agent served admirably the cause
which he defended before the Court. One could fear that his
age would betray him in the face of the overwhelming
responsibility of his mission and especially against his more
experienced opponents. That did not happen, and it provoked
great admiration among some and the astonishment of all
when on the streets of The Hague were heard some juicy
stories in which he tricked ‘shadow agents’ who projected to
‘turn him’ against his own country.
On this point, Nicaragua and Ambassador Arguello himself
unquestionably gained points by adding to the Nicaraguan
legal team a well-respected American lawyer who was
considered a great celebrity on the other side of the Atlantic.
It was Abram Chayes, who was the former Principal Legal
Adviser of the State Department. The Nicaraguan team then
distinguished itself by introducing as an oral witness another
American, David MacMichael, a former agent of the CIA, who
had participated in the activities against Nicaragua and who
answered before us all questions with an impressive mastery
of circumstances and a sharp and admirable sense of nuance.
*
**
In 1984, the International Court of Justice was presided

over by Judge Taslim Olawele Elias of Nigeria, a solitary man
of strong character. It was his last mission before
disappearing from our world. I myself had recently arrived at
the Court, which I had joined after completing my mission as
Ambassador of my country to the United Nations in New York.
I came to The Hague with some strong impressions of the
functioning of the international system as seen through the
Glass Building of the United Nations. Our judicial institution
included some great names in international law, such as
Manfred Lachs, Roberto Ago, Sir Robert Jennings and Jose
Maria Ruda. It was also fortunate to have Judge Guy Ladreit
de Lacharriere among its members. As the concern for the
confidentiality of deliberations dictates, there is no need to
say anything further about him.
Having set the judicial scene, let us turn to Nicaragua’s arrival.
*
**
It was on 9 April 1984 that Nicaragua knocked for the first

time at the door of the International Court of Justice. It was
by the Judgment of 26 November 1984 in which the Court
found by 15 votes to 1 that it had jurisdiction and
unanimously that Nicaragua’s claims were admissible, and by
the Judgment of 27 June 1986 on the Merits that the small
underdeveloped country triumphed over the leading world
power. Through these two decisions, the impressive and
fruitful activity of Nicaragua before the Court has profoundly
marked the course of legal thought. They are undoubtedly
landmarks in international jurisprudence. More generally, with
over numerous cases in which Nicaragua appeared before the
Court, the high international court had to discuss most issues
of international law.
To limit oneself to the Judgment of 27 June 1986, one
8 M. Bedjaoui
notes that it constitutes by its rich content as much as by its

volume of 532 pages (if one includes the opinions of the
Judges) a true and massive handbook of international law. It
deals with most of the principles and rules governing this
field, including the principle of the prohibition of the use of
force, individual and collective self-defense, the concept of
armed aggression, the principle of non-interference in the
internal affairs of a State, the sources of international law and
the differences between treaty and custom, the international
responsibility of States, not to mention questions of evidence.
In reading the Court’s positions on the notion of aggression or
armed attack, readers should also read the 1998 Rome
Statute, which established the International Criminal Court,
noting at each step of the reading all that this Statute owes to
the clarification given by the International Court of Justice in
its 1986 Judgment, which remains a remarkable landmark in
the development of law on the use of force. We should like to
thank Professor William Schabas for all his reflections on
these various topics, of which he is a great goldsmith.
*
**
The book which we are going to read presents a thorough

panorama of all these questions and of many others which
the Court has encountered in its treatment of the numerous
cases concerning Nicaragua. Some of these problems—and,
to begin with, the conditions of the Court’s jurisdiction—will
be mentioned below.
With regard to the Optional Clause on compulsory
jurisdiction, Nicaragua offered the Court a dual opportunity to
clarify certain aspects. We will read with interest the chapter
devoted to this subject by Mr. Brian McGarry.
It is known that the Parliament of Nicaragua approved in
1935 a declaration of acceptance of the jurisdiction of the
Court, and that for this purpose the Nicaraguan Minister of
Foreign Affairs had addressed to the League of Nations in
Geneva a telegram which was apparently never received by
its addressee. However, the Yearbook of the Court regularly

included Nicaragua in the list of States admitting the
compulsory jurisdiction of the Court with a footnote
presenting the facts, which were never questioned by anyone.
By analogy to the law of the treaties, the Court recognized
the right to withdraw in good faith such declaration or to
modify it, like any unilateral act of a State.
As for the Optional Clause declaration deposited by the
United States on 14 August 1946, it included a provision
concerning its denunciation, taking effect after a 6-month
notice period. When it found that Nicaragua was about to file
an application with the Court against it, the United States
tried to modify its declaration on 6 April 1984, 3 days before
Nicaragua’s Application. The letter, signed by Secretary of
State George Schulz, specified that the declaration of the
United States was no longer applicable to cases concerning
Central America and that the modification would take effect
immediately. As foreseen, on 9 April 1984, Nicaragua
instituted proceedings against the United States.
The Court refused the immediate withdrawal of the United
States, referring to the notion of ‘reasonable’ time borrowed
from the law of treaties and required by good faith.
*
**
The American Treaty on Pacific Settlement, more commonly

referred to as the ‘Pact of Bogota’, has fostered the Court’s
well-furnished case-law on its application and interpretation.
One must be grateful to Nicaragua for its pioneering role in
pushing the Court through all the cases in which it had been
involved to examine the Pact in many of its aspects and, in
particular, concerning the relationship between its Article XXXI
and the Optional Clause on compulsory jurisdiction.
*
**
As Professor Antonio Remiro Brotons reminds us, the Pact

10 M. Bedjaoui
has been examined with constantly renewed attention.

Invoked in the last 30 years no less than 15 times out of a
total of 18 disputes involving Latin American States, the Pact
will have been invoked 11 times in cases involving Nicaragua,
7 times in which it appeared as Applicant and 4 times as a
Respondent. The same author correctly noted the
characteristic that Nicaragua has never challenged the
jurisdiction of the Court (of course this is at least because
seven times it was an Applicant seeking this jurisdiction).
*
**
The 1984 and 1986 Judgments have strengthened the

Court’s jurisprudential approach, marked by the absence of
any excessive formalism in the handling of a case. From this
point of view, the Court has not lost sight of the fact that it is
the ‘principal judicial organ’ of the United Nations, placed at
the service of States to settle their disputes. Since its
creation, it has sought to accomplish its mission while
adhering to the work of the international organization by
being faithful to its vocation of helping States to find peace
and harmony among themselves.
In this respect, the Court never considered that it was the
cloistered and resigned prisoner of the formalism which
threatened to prevent it from reaching the just and
reasonable solution desired. There was undoubtedly reason to
salute its lucidity and its inventiveness when it recognized in
1949 the existence of the ‘international personality’ of the
United Nations, when it endowed in 1950 the General
Assembly with all the necessary competence for the
admission of a State to the United Nations, when it clarified in
1951 the legal force of reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, or
finally when it decided in 1962 that certain expenses in the
Congo or for the United Nations forces
in the Middle East were indeed expenditures of the United
Nations to be borne by all Member States.
In its always serene and steady march to the service of the

international community, the Court in its Advisory Opinion on
the Legality of the Threat or Use of Nuclear Weapons
eloquently demonstrated to what degree of refinement and
skill it could go to serve the international organization to
which it belongs—as well as the international community as a
whole, which it has the superior duty to protect.
If the practice of States creates international custom, the
Court could also reasonably recall that States which violate a
legal principle always strive to assure the international
community that they do nothing but apply it. The Court then
interprets this lie—which is only a compliment which vice pays
to virtue—as the expression of an opinio juris, since even the
States responsible for breaches of this principle recognize its
existence.
This secularization, in the noblest sense of the word,
appears equally in the exercise of the Court’s contentious
function. I note from the 1970 Judgment in the Barcelona Traction
case, its obiter dicta concerning erga omnes obligations imposed on
States and which serve the international community as a
whole. How can I not also recall the resounding Judgments of
1984 and 1986 in Nicaragua v. United States, where the Court broke
so spectacularly with all paralyzing formalism. Its 1986
Judgment on the Merits constitutes a textbook, or even a
great ‘handbook of customary international law’, which may
be used to supplement treaty law if need be.
Were there attempts to bar the Court’s first application of
the Charter’s provisions regarding the non-use of force and
self-defense? Yes, but these were useless. The Vandenberg
Reservation had the ambition to block the Court’s roads to the
Charter, a multilateral treaty which the Respondent argued
that the Court could not interpret in the absence of all the
other States Parties to that instrument. The Court then
proceeded to elegantly and powerfully circumvent this
obstacle in order to render a Judgment of fine architecture
and exemplary legal rectitude.
The 1984 Judgment on Jurisdiction and Admissibility in that
same case had also not suffered from the morbid pallor that
12 M. Bedjaoui
had been feared. Surely no remedy could have been achieved

with the limited tools of strict formalism. Deploying its
capacity to assert a dynamic and concrete vision of what is
fair and reasonable, the Court was able to welcome and
validate the old declaration deposited by Nicaragua
concerning the Optional Clause on compulsory jurisdiction,
though its fate had uncertain.
In short, the Court was able to avoid being chained to the
letter of the Charter or to the shortcomings of international
law. It knew how to give the latter the bright colors of a true
law of all nations. This great World Court, richly endowed
today with a legacy even more prestigious than I can tell,
possesses the necessary imagination to always serve this
enlightened justice.
Perhaps the Court gave pride of place to a certain
formalism, which it perceived as fair, in the Libya/Chad
Judgment of 1994 concerning the Aouzou Strip and in that of
East Timor in 1995. In the first case, it strictly adhered to the
Franco-Libyan Treaty of 1955 which delimited the zone and in
the second it was equally strictly focused on the absence of
the ‘indispensable party’. It cannot, however, be argued that
it has definitively adhered to formalism during this period,
since its jurisprudence also includes the Phosphates of Nauru
Judgment of 1992, in which it embraced greater flexibility.
It remains true, however, that in its Judgment of 27 June
1986 the Court refused to consider the Contras—rebels
opposed to the Nicaraguan government—as an emanation of
the United States. Such a position appears to be a step back
from that which it took 7 years earlier in the case concerning
the American hostages in Tehran, in which Iran was declared
responsible for the acts of the Pasdaran. Moreover, the Court
did not take into account the fact that President Ronald
Reagan, referring to the Contras, had repeatedly stated that
‘their struggle is ours’. While not denying the actions of the
United States, the Court had sought shelter in a certain
formalism which enabled it to minimize them.
*
**
The Court thus established a rather restrictive criterion for

the control of the activities of the Contras. This control must be
‘effective’ to entail the international responsibility of the
United States. The International Criminal Tribunal for the
Former Yugoslavia, on the other hand, preferred a less
stringent test in the Tadic case, considering that it was
sufficient for the combatants to be under the ‘overall control’
of a foreign State. Part of the academic world had then feared
a ‘new interpretation of international law of responsibility’ and
regrettable discrepancies in jurisprudence.
On the contrary, I think that one should welcome the
ICTY’s decision. One must not lose sight of a key element in
the Nicaragua v. United States case. The United States refused to
appear before the Court at the Merits phase. If I have a piece
of advice to give to any Respondent State whose case would
appear to be a little difficult, I would not hesitate to
recommend that it should take the side of non-appearance, at
the risk of losing the benefit of the fees that I would have
received if the State had appeared and if I had pleaded for it.
In a situation of non-appearance, it is almost consciously that
the Court redoubles its vigilance, protects the non-appearing
State, and makes an exceptional effort to set imaginative
traps for the Applicant, which the defendant himself would
not have considered. In short, it seeks to mitigate the
absence of the Respondent and to create a balance between
the Applicant and the non-appearing Respondent, so much so
that it almost substitutes itself for the latter against the
former.
Thus, the Court went far in the ‘protection’ of the non-
appearing State so that it could not call into question its
Judgment. That explains this rigid test of ‘effective control’. In
order to substantiate this explanation, which perhaps pertains
to psychoanalysis of the judge’s behavior, I would confirm
that I was myself a member of the drafting committee in this
case. We had wished to be very strict with regard to the
Applicant State, in order not to incur any reproach on the part
14 M. Bedjaoui
of the non-appearing Respondent State. I know that there is

no statute of limitations for violations of the confidentiality of
judicial deliberations, even if the facts date back to more than
30 years already. It goes without saying how much I count on
the amnesia which will not fail to strike readers who are kind
enough to forget this little confidence.
*
**
The Nicaragua v. United States case offered lawyers substantial

developments on sources of international law. The importance
of the theme and its magnitude required the expertise of Dr.
Antonios Tzanakopoulos, Ms. Anna Ventouratou, Professor
Malgosia Fitzmaurice, and Professor Vaughan Lowe, whose
contributions are all valuable.
The identification and determination of the elements of
custom were addressed with some latitude by the Court,
which went so far as to acknowledge the contribution of its
jurisprudence to the formation of custom.
The Court also addressed its normative function by
welcoming the ‘new trends’ accepted at the Third United
Nations Conference on the Law of the Sea, going somehow
beyond the concept of ‘custom in formation’. It has
empowered itself to decide the weight to be attached to these
‘new trends’ in the process of formation of customary law. It
seems to have relaxed its traditional jurisprudence on the
formative elements of custom.
Moreover, the Court has affirmed with great authority that
custom cannot be subordinate to treaty. Each has its own life.
In particular, customary law is by no means superseded by
conventional law and retains all its independence. Selfdefense
under Article 51 of the UN Charter does not affect the
relevance of the conditions of self-defense under customary
law, which retains an independent ‘legal life’. The treaty
constitutes here a good means of clarifying the customary
rule in its content and scope.
The Court also clarified the role of international
organizations’ resolutions in the formation of custom, and

showed that it does not require that resolutions be supported
by an overwhelming majority or followed by an abundant
practice.
All these learned developments on sources of international
law were a blessing and we must be grateful to the professors
who have so brilliantly discussed them for the benefit of the
readers.
I have already mentioned above an important aspect of the
international responsibility of States. The issue of
responsibility was at the heart of the 1986 Nicaragua v. United
States Judgment. I pointed out that the Court had established
very high standards concerning the attribution to the foreign
State of acts committed by opponents of the Nicaraguan
Government. The Court had held that neither the financing,
nor the organization, nor the training, nor the equipment, nor
the selection of the targets, nor the planning of the
operations—all things properly attributed to the United States
—were sufficient to conclude that the acts committed by the
Contras were also attributable to the United States. Since the
threshold of ‘effective’ control of the Contras was placed too
high by the Court, Nicaragua could not prove the strong
dependence of these de facto organs of the United States.
In the case concerning the Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), the Court followed
its 1986 jurisprudence by pointing to the lack of evidence for
the purposes of attributing to Uganda the conduct of the
rebels in the Congo. But it extended its decision with the idea
that military support and training provided by Uganda violated
‘certain obligations of international law’. In addition, as
Uganda was an occupying power in the Ituri district, it had an
obligation to be more vigilant in preventing the rebels from
looting natural resources.
The reader will certainly benefit from the stimulating
reflections of Ms. Tessa Barsac and Mr. Benjamin Samson on
the various aspects of the exciting area of international law
that is the responsibility of the State.
16 M. Bedjaoui
*
**
One can thus appreciate the paramount importance of the

question of evidence. The entirety of the evidentiary
apparatus deployed by the Court has shown that it has largely
identified and processed the considerable mass of facts
invoked before it, despite the difficulties inherent in the
problems of secrecy, the establishment of clandestine bases
in third countries, and the non-appearance of the Respondent
State.
The Court was able to exploit, with exemplary discernment,
the statements of the American officials themselves. The
testimonies were received with precaution and the Court
engaged in a very demanding search for truth. Its task proved
particularly burdensome due to the non-appearance of the
Respondent State. Nicaragua presented, as noted above, a
former CIA agent who had worked on the ground with the
Contras and whose testimony, always perfectly nuanced, made
a strong impression with its rare sense of measure and
striking candour.
It will be noted that the Court found that even if it had
been proven that Nicaragua were supplying arms and
assistance to the guerrillas in neighbouring States, this would
not in itself constitute an ‘armed attack’ justifying the
invocation by the United States of collective self-defense.
*
**
As a State bordering the Caribbean Sea, Nicaragua did not

limit itself to lodging a complaint against the United States, a
great power which considered this area as its ‘backyard’. It
has also sought clarification by the Court of its rights in the
region. Therefore, it is not surprising that ‘the Nicaragua
cases’ have raised law of the sea
17 M. Bedjaoui
questions. The Territorial and Maritime Dispute case, which from

2001 to 2012 opposed Nicaragua and Colombia regarding a
number of islands and formations in the south-western
Caribbean Sea, provided the Court with an opportunity to
indicate how it defines certain maritime features and sets
appropriate maritime boundaries. The Court clarified the
reasoning it had developed with respect to the method of
maritime delimitation in the Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea and Black Sea Judgments of
2007 and 2009, respectively.
The ‘Nicaragua cases’ also enabled the Court to develop a
solid case law on the regime of internal waters and islands.
Professors Donald Rothwell and Stephen McCaffrey deserve
our thanks.
*
* 2
The famous dictum concerning ‘intertemporal law’ made by

Arbitrator Max Huber in the Island of Palmas case has been
enriched by the ‘Nicaragua cases’. In its well-established
jurisprudence on the interpretation of treaties, the Court has
taken into account the intention of the parties as it appeared
at the time of the conclusion of a treaty. In the Dispute regarding
Navigational and Related Rights, the Court specified that where the
meaning of a term is no longer the same as it was at the date
of conclusion, account should be taken of its meaning at the
time of its interpretation and application. The essential
question is whether the parties intended to freeze the term or
to approach and interpret it dynamically.
*
**
The vast issue of unilateral acts in international law has also

been examined in the context of the Nicaraguan
jurisprudence. The Judgments * * of 1984 and 1986 have
2
18 M. Bedjaoui
certainly influenced the work of the International Law

Commission on the development of international law in this
field. For instance, the Commission cited the 1984 Judgment
to illustrate the arbitrary character of the withdrawal of a
unilateral act.
And when the Commission had to codify the legal effects of
unilateral declarations, it did not fail to recommend taking into
account their content, all the circumstances under which they
were made, and the reactions to which they gave rise, thus
referring to the Court’s 1986 Judgment.
The rich jurisprudence developed by the Court in the

examination of the cases involving Nicaragua has not been
confined to questions of substance. Issues of procedure have
also been clarified. In two cases between Nicaragua and
Costa Rica, the Court contemplated the best ways and means
of providing the parties with a sound administration of justice.
On 17 April 2013, the Court delivered two well- reasoned
orders to join the cases concerning Certain activities carried out by
Nicaragua in the border area (Costa Rica v. Nicaragua) and the Construction of
a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica).
The Court applied here for the first time Article 47 of the
Rules that it had amended in 1978. The opportunity was
especially attractive since the joinder of proceedings
concerned the same parties inversely playing the role of
Applicant or Respondent in respect of the other. The joinder
was all the more remarkable since it was decided by the Court
in spite of the objection expressed by one of the parties,
Costa Rica, thus breaking with its previous jurisprudence
exclusively focused on the agreement between both parties.
Mr. Edgardo Sobenes Obregon explains well all of these
aspects.
*
**
The influence of the ‘Nicaragua cases’ on procedural

questions is not limited to the joinder of proceedings. It also
extends to the indication of provisional measures, especially those
examined proprio motu by the Court, rather than those requested
by one of the parties to the dispute. In fact, in the Construction of
a Road case, the Court decided to act of its own motion to
indicate such measures.
In these fields of international law (and many others)
Professor Hugh Thirlway—who was for a long time one of the
most solid pillars of the Court, which owed him much in the
elaboration of its Judgments—deployed his immense expertise
with his usual mastery.
*
**
20 M. Bedjaoui
Even more recently, in its Judgment of 17 March

2016(Question of the delimitation of the Continental Shelf between Nicaragua and
Colombia beyond 200 nautical miles from Nicaragua Coast (Nicaragua v.
Colombia)), the Court dealt with the question of res judicata, which
was at the heart of the case. Colombia argued that the Court
did not have jurisdiction because it had already ruled on this
issue in its 2012 Judgment in favour of Nicaragua ( Territorial and
Maritime dispute (Nicaragua v. Colombia). According to the Court, the
application of res judicata depends on several conditions: identity
between the parties, the object, and the legal ground. Seven
judges issued a very strong joint dissenting opinion, which is
not far from constituting a functioning crisis.
*
**
Reading this book, one can well appreciate that the cases
concerning Nicaragua have enabled the International Court of
Justice to develop and strengthen its jurisprudence in a
number of fields. The Judgment of 27 June 1986 remains the
major decision in this respect. The peaceful settlement of
disputes would have yet gained more in majesty if the United
States, which had refused to appear, had accepted the
Judgment on the Merits. The Court, for its part, remained
passive regarding the enforcement of its decision. In 1990,
new elections were held in Nicaragua. A new political regime
led by Madame President Chamorro was installed. Only then
did it receive from the United States a compensation
amounting approximately to that it requested the Court to fix
in respect of the damages suffered.
As I have said, the Judgment of 27 June 1986 recalls in
many respects the Corfu Channel Judgment. The two decisions of
the Court authoritatively called a great power to respect
international law. The Court however avoided in 1986 its
somewhat vengeful tone of 1948. It gained more authority in
the process. But just as England—already affected at the time
of Corfu by the setbacks of fate, though retaining the memory
of its control of the seas and lands—had been sharply
admonished by the Court, the United States likewise was
reminded by the latter of the imperious duty to adhere to
legal norms in its external relations. It is the same movement,

the same trend. It is a matter of defining limits to the
overwhelming exercise of a power. This was the price to be
paid by the Court to fulfil its mission to contribute to the
maintenance of international peace.
Through the cases brought before the Court and
concerning Nicaragua, the Court has been able to safeguard
the essence of its mission of preserving peace and even to
take an increasingly definitive place in the institutional
balance of the United Nations, as well as in the balance
between regional mechanisms and those of the United
Nations in the maintenance of peace.
Mohammed Bedjaoui is
a former Member (1982-2001) and President
(1994-1997) of the International Court of Justice. He also
served as Algeria’s Ambassador to the United Nations and as
Algeria’s Minister of Foreign Affairs. He is an Emeritus
Member of the Insitut de Droit International.
Introduction from the Podium
Alain Pellet
Abstract Nicaragua entered in the legend of the International

Court of Justice in 1984 when it filed an Application against
the United States, a ‘winning-bet’ which led to the epoch-
making Judgment of 27 June 1986. It has since then based
part of its ‘foreign legal policy’ on the World Court and
entrusted it to settle most of its disputes with its neighbours.
Before the Court, Nicaragua’s judicial strategy is marked by
pragmatism and mutual confidence between Nicaragua,
represented by the Agent, and Counsel which is stable even if
it unavoidably evolves with the time. Globally Nicaragua’s
judicial strategy appears as a success. Moreover, the fourteen
cases Nicaragua participated in gave the Court an opportunity
to deal with and clarify a significant number of questions of
international law. Nicaragua deserves credit for that.
Contents
1...........................................................................................................................................................
Introduction......................................................................................................................................... 16
2 The ICJ as an Element of Nicaragua’s ‘politique juridique extérieure’ (Foreign LegalPolicy)... 19
With my deep appreciation to Benjamin Samson, PhD

Candidate, University Paris Nanterre, and consultant in public
international law, for his assistance in the preparation of this
paper.
Alain Pellet was part of the legal team representing the Republic of Nicaragua in the following cases:
Military and Paramilitary Activities in and against Nicaragua (Nicaraguav. United States of
America); Border and Transborder Armed Actions (Nicaragua v. Honduras); Border and Transborder
Armed Actions (Nicaragua v. Costa Rica); Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v. Honduras); Territorial and Maritime Dispute
(Nicaragua v. Colombia); Dispute regarding Navigational and Related Rights (Costa Rica v.
Nicaragua); Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa
Rica); Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia
(Nicaragua v. Colombia); Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia); Delimitation in the Caribbean Sea and the Pacific Ocean
(Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v.
Nicaragua). The views and opinions expressed in this Chapter are those of the author and do not
necessarily reflect the views and opinions of the Republic of Nicaragua. 2
2
Introduction from the Podium 23
A. Pellet (*)
University Paris Nanterre,
Nanterre, France e-mail:
courriel@alainpellet.eu
62962-9_2
2.1 The ‘Big Case’, a Winning Bet........................................................................................... 20
2.2.................................................................................................................................................. The
Other Cases Building on the Momentum of the ‘Big Case’......................................................... 25
3 Nicaragua’s Judicial Strategy Before the ICJ................................................................................... 31
3.1 Continuity and Renewal in the Composition of the Nicaraguan Team............................... 31
3.2.................................................................................................................................................. Workin
g Methods and Judicial Strategy................................................................................................... 35
References........................................................................................................................................... 38
1 Introduction
Nicaragua is on the podium of the States that have competed

most often in the arena of the International Court of Justice 1—
in fourteen cases to be exact: eight times as applicant, five as
respondent, and once as an intervener.2The most famous of
all is the case concerning the Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America). Besides the
durable and in depth influence that the judgments in these
‘Nicaraguan cases’ have exerted in numerous fields of
international law, Nicaragua has played a considerable role in
awakening the Court from the semi-lethargy in which it had
fallen since 1963. Indeed, no proceedings had been instituted
between 1963 and 1966, 1968 and 1970 or again between
1977 and 1980. In the few years that did have cases, they
were seldom more than one per year. The Court had in
particular lost the confidence of what was then called the
‘Third World’ following its unfortunate decision of 1966 in the
South West Africa case.3The 1974 Judgments in the Nuclear Tests Less !
than the USA (23 cases) but the same record as the UK (14) and France (14 if one includes the
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s
Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case).
2
See by date of introduction: Arbitral Award Made by the King of Spain on 23 December 1906
(Honduras v. Nicaragua); Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America) (hereinafter ‘Nicaragua v. United States’); Border and Transborder
Armed Actions (Nicaragua v. Costa Rica); Border and Transborder Armed Actions (Nicaragua v.
Honduras); Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
24 A. Pellet
intervening) (hereinafter ‘ El Salvador/Honduras'); Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras); Territorial and Maritime
Dispute (Nicaragua v. Colombia); Dispute regarding Navigational and Related Rights (Costa Rica v.
Nicaragua); Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa
Rica); Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond
200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia); Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia); Maritime
Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua); and Land
Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua).
3
The case concerned the continued existence of the Mandate
for South West Africa and the duties and performance of
South Africa as Mandatory thereunder. Implicitly, it raised the
question of the compatibility of the extension of the apartheid
regime to the Mandate with international law. The cases4had also
led France, one of the traditionally most faithful supporters of the Court, to withdraw
its optional declaration. The trend was reversed by the solidly motivated and skilful
judgments rendered in the Nicaragua v. United States case,5as well as in the Frontier
Dispute between Burkina Faso and Mali.6They showed that the Court was not an
‘irresponsible’ body7relying on excuses to evade its responsibilities8or systematically
taking the side of the strongest. Since then, the General List has more than doubled,
with an average of three cases being filled per year, largely by ‘small’ States against
more ‘powerful’ States, if not ‘top-ten economies’.9In March 2017, the General List
includes 166—contentious and advisory—cases, against 68 before the introduction of
the ‘Big Case’ in 1983. Between these two dates, the Court has given 83 Judgments in
69 different cases.10A significant number of these cases have come from Central
America, with the participation of Nicaragua and/or its neighbours—as well as from
Africa.
Court first declared to be competent to rule on the merits (South

West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment, ICJ Reports 1962, p. 319). In its Judgment on the second
phase, it ultimately held that the Applicant States could not be
considered to have established any legal right or interest in
the subject matter of their claims and accordingly decided to
reject them (Second Phase, Judgment, ICJ Reports 1966, p. 6). It triggered
widespread and vigorous criticisms from the dissenting
Judges, scholars in international law and various States. See
notably, the Declaration of the Representative of Liberia to
the General Assembly according to which ‘seven men
perverted justice and brought upon the International Court
the greatest opprobrium in its history’ (21st session,
A/PV.1414, 23 September 1966, para 67); the Declaration of
the Foreign Minister of the Ivory Coast, Assouan Usher,
speaking of ‘an international scandal’ (21st session,
A/PV.1418, 27 September 1966, para 12); or the Declaration
of the President of Senegal Leopold Senghor using a similar
wording (AFP, Bulletin d’Afrique, 21 July 1966). See also Falk (1967),
pp. 1-23; Fischer (1966), pp. 144-154; Friedmann (1967), pp. 1-
16; or the tough dissenting opinions of Judges Koretsky (ICJ
Reports 1966, pp. 239-249 (not. p. 239) and Jessup (ibid., pp. 325-
442 (not. pp. 325 or 342)).
4
Nuclear Tests (Australia v. France) and (New Zealand v. France), Judgments, ICJ Reports 1974, p.
253 and p. 457 respectively.
5
Nicaragua v. United States, Preliminary Objections, Judgment, ICJ Reports 1984, p. 392 (hereinafter
‘Nicaragua v. United States (Jurisdiction)’) and Merits, Judgment, ICJ Reports 1986, p. 14
(hereinafter ‘Nicaragua v. United States (Merits)’).
6
Frontier Dispute (Burkina Faso/Mali), Judgment, ICJ Reports 1986, p. 554. As I have
explained elsewhere, this case, based on a special agreement
of 16 September 1983, has, no doubt, also played a role in
the revival of the Court’s activity (see Pellet 2012, p. 483; and
Pellet 2013, p. 277). 7Declaration of the Representative of
Nigeria, General Assembly, 21st session, A/PV.14294 October
1966,
8
paras 11-12.
The President of Madagascar, Philibert Tsiranana, declared
that the South West Africa Judgment used a ‘ grossier faux-fuyant permettant a la
Cour d’échapper a ses responsabilités’ [‘a coarse red herring enabling the
Court to9 escape its responsibilities’] (AFP, Bulletin d’Afrique,22 July
1966).
10
Satzer (2007), pp. 27-28.
Including 5 Judgments regarding applications to intervene; 6
regarding applications for revision and/or interpretation; 28
regarding preliminary objections/jurisdiction and admissibility.
These data are up-to-date on 6 March 2017.
Asia itself has started to take again the track to The Hague
following the Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia) case.
3
Doubtlessly, the Nicaragua v. United States case was perceived

largely as a kind of revenge of the weak against the strong.
As the now lifetime Agent for Nicaragua declared at the end
of his pleading on preliminary objections:
This case has aroused worldwide interest not because of
the technical legal problems involved, but because the
world’s hope for peace is placed on the possibility of a
small nation obtaining sanctuary in this Palace of Peace.
Nicaragua is here before you sincerely hoping there is a
way for peace through law on this earth.4
In his final statement on the merits, Ambassador Arguello
further emphasized: ‘The cause of my country is also the
cause of all the small nations on earth, who see in the rule of
law their only means of survival’.5And, as I have written
elsewhere,
In my career as counsel, I have often invoked Nicaragua in
answer to the haunting questions asked systematically by
small weak countries that I had the privilege to advise:
“are Judges really independent? Do they not tend to be
guided by political considerations?
Are they not guided by the great northern States?” Or
even more common questions: “Do they not always meet
halfway?” On these recurrent questions, Nicaragua allows a
negative answer to be given.
[...]
3See the Judgment of 17 December 2002, ICJ Reports 2002, p. 625.

4Nicaragua v. United States, ICJ Pleadings, Statement by Mr. Argüello GOmez
of 10 October 1984, Vol. III, p. 141.
5Ibid., 20 September 1985, Vol. V, p. 236.
26 A. Pellet
As far as the Court was concerned, it demonstrated that
sometimes David can triumph over Goliath.6
On the contrary, following the Nicaragua v. United States
Judgment, the Court’s ‘traditional clientele from Western
Europe and North America retrenched (at least for some
years) from affirmatively invoking the Court’s
jurisdiction.’7This is not to say that the Court has exclusively
‘become a forum in which the weak sue the strong, or the
weak sue each other, but no longer one in which major States
feel comfortable bringing disputes as significant as those they
chose to submit in earlier years.’8Recent developments show
that ‘Western’ States—at least some of them—have in fact not
ceased to view the Court as an impartial forum for resolving
their disputes.9
6Pellet (2012), p. 484.

7Damrosch (2012), p. 141.
8Ibid., p. 142.
9See e.g., Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ
Reports 2012, p. 99; Whaling in the Antarctic (Australia v. Japan: New Zealand intervening),
Judgment, ICJ Reports 2014, p. 226; Application of the International Convention for the Suppression
of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of
Racial Discrimination (Ukraine v. Russian Federation).
As regards the subject-matter of the contentious—but also
advisory—proceedings heard by the Court, a salient feature of
its docket ‘has been the invocation of the judicial process in
the midst of armed conflict, or to obtain a judicial ruling on
the lawfulness of a forcible action taken in the recent past, or
to attempt to head off anticipated coercive action, or to
challenge the legality of the choices States have made to
deter or defend themselves against armed attacks.’ 10Nicaragua
was, of course, not the first case involving use of force but it
gave a considerable boost to such cases.11
2 The ICJ as an Element of Nicaragua’s ‘politique juridique

extérieure’ (Foreign Legal Policy)12
Common sense indicates that the weakest have an interest in

a system which does not allow the strongest to freely
interpret the law, proportionally to their military power. 13They
are thus more inclined to accept a mandatory system of
dispute settlement. On the contrary, the powerful nations
have conspicuously rejected any proposal to allocate
compulsory jurisdiction for all legal disputes to an
international court14and only yielded to a system of optional
acceptance.15
Consequently, and as early as 1929, Nicaragua recognized
10Damrosch (2012), p. 142.
11Ibid.
120On this concept, see the remarkable essay by Guy de
Lacharrière (who was the ICJ VicePresident when the
Nicaragua’s Application was examined), La politique juridique extérieure.
Economica, Paris, 1983.
13Lacharriere (1983), p. 139.
14Such proposal was opposed by France, Italy and the United
Kingdom before the Committee of Jurists in charge of
establishing the Permanent Court of International Justice, and
by the United States and the USSR in 1945 in respect to the
ICJ.
15See Article 36 of the PCIJ Statute and Article 36(2) of the ICJ
27
Lacharriere
Statute.
(1983), p. 139.
28 A. Pellet
‘as compulsory unconditionally the jurisdiction of the
Permanent Court of International Justice.’16This exceptionally
wide declaration was deemed as being valid before the
ICJ,17though Nicaragua made a reservation to it in 2001 in
relation to cases based on the interpretation of treaties or
awards concluded prior to 31 December 1901.18
Nevertheless, once the use of force is ruled out as a means
for settling disputes, the interest of the weak for third party
procedures diminishes considerably.19In any
16LNTS,Vol. LXXXVIII, p. 283.

17Article 36(5) of the ICJ Statute.
18UNTS, Vol. 2163, p. 347. Following a formal objection by Costa Rica,
Nicaragua undertook, by
19an Agreement of 26 September 2002 between the two
governments, ‘to maintain, for a period of three years from
today’s date, the legal status existing on today’s date with
respect to its declaration of acceptance of the jurisdiction of
the International Court of Justice’.
case, their general and abstract inclination for judicial
settlement does not prevent them from trying to escape the
jurisdiction of the Court whenever the opportunity arises and
with as much determination as the great powers.20
Nowadays, the first and most obvious reason which leads
States to submit a dispute to the Court rather than to
negotiate is their desire and chances to win. In theory at
least, the Court could grant all the Applicant’s claims if they
are well founded, while such a total victory is unlikely in an
international negotiation where concessions must be made. 21A
party convinced of the quality of its cause, of the good
dispositions of the judges towards it, and not inclined to make
even the slightest concession, may then be tempted to resort
to the Court to achieve unmitigated success.22In practice
however, the uncertain content of international law in a
rapidly changing world risks to make international litigation
into a game of chance.
On the other hand, in some instances, a government can
consider referring to the Court a ‘lost cause’ when it is
convinced that sacrifices are reasonable, if not indispensable,
to solve peacefully a given dispute but that the public opinion
would disavow it if it were to conclude any agreement with
the other party or that the Parliament would refuse its
ratification.23These risks are indeed obviated when the
envisaged concessions are imposed by a third party.
2.1 The ‘Big Case’, a Winning Bet
In a conference given in June 1996 at the Institute of Social

Studies of Rotterdam, Ambassador Arguello explained.
Between July 1979 and November 1980, two events took
place that were to radically change the history of
Nicaragua. The first of these was that the Revolution
headed by the Sandinista Front succeeded in
20Ibid.
21Ibid., p. 142.
22Ibid.
23 Ibid., p. 143. I would think this to have been the case when
Libya accepted to seize the ICJ in the
Territorial Dispute (Libyan Arab Jamahiriya/Chad) case.
30 A. Pellet
overthrowing the nearly fifty year long dictatorship of the
Somoza family in Nicaragua. The other was the election
of Ronald Reagan to the Presidency of the United States.
It was inevitable that a “left” oriented revolutionary
government would have strong differences with
practically any US Administration. But the new
Administration was not typical, it was led by a President
whose political platform was based on the fight against
the “evil empire” and whose only interest in Central
America, before the fall of Somoza, had been in opposing
the Panama Canal negotiations and the ensuing Treaty.
All this spelled trouble for Nicaragua, and it did not take
long in coming: less than two months after assuming the
presidency, President Reagan made a formal ‘Presidential
finding’, authorizing the Central Intelligence Agency (CIA)
to plan and undertake ‘covert activities’ directed against
Nicaragua. Over the next years, these covert operations
would increase until they reached the proportions of an
all out war against
Nicaragua. This was the background when Nicaragua took the
decision at the beginning of
1984 to bring its case to the International Court of Justice. 2425
First prepared by a young radical US lawyer, Paul Reichler,
who involved his former Professor of law at Harvard Law
School, Abraham Chayes, Nicaragua’s Application reflected
the perception that the only defence of a small nation against
a super power, was respect for international law, and that
coming to the Court would be the only way to win the
struggle between small and big.
According to Professor TD Gill, Nicaragua had five objectives:
1. to gain support from world public opinion by portraying
Nicaragua as a victim of superpower intervention;
2. to influence US public opinion and especially
Congressional opinion to oppose further funding of the
contra guerrillas;
3. to influence US and especially Congressional opinion to
end authorization of “covert” CIA activities against
Nicaragua - in particular the mining of its harbours,
attacks upon shipping by speedboats and light aircraft,
and sabotage of its oil depots and storage facilities,
etc.;
4. to isolate the US diplomatically from both its regional
Latin American neighbours and allies and its Western
24‘Notes by the Agent of Nicaragua on the Occasion of the

10th Anniversary of the Judgment of the Court in the Case
Concerning Military and Paramilitary Activities in and Against
Nicaragua (Nicaragua v. United States of America)’. The text
of this conference is with the author.
25Gill (1989), p. 208.
partners in its opposition to Nicaragua;
5. to improve Nicaragua’s negotiating position in any
subsequent bilateral or regional
33
negotiations.
This, I think, is a rather good analysis, although the
members of the Legal Team assembled by Nicaragua had first
of all the strong feeling that they were acting in defence of
international law scorned by the new US Administration. This
feeling was reinforced by the strong recommendation which
was made to Counsel upon their recruitment: ‘you are in
charge of a purely legal - by no means a political - defence.’ 26
The Order on Provisional Measures of 10 May 1984,
adopted by a quasiunanimous Court,27constituted a strong
encouragement to maintain this strategy and so was the
Judgment on the jurisdiction of the Court and the admissibility
264However, it was clear that retained Counsel were not

supportive of the US violent actions against Nicaragua. My
colleagues were however probably more supportive ‘activists’
than I was: during my long service for Nicaragua, I have been
invited in Managua only one time in relation with the cases—
in order to celebrate the anniversary of the Revolution; I
declined the invitation; my colleagues accepted it...
27Nicaragua v. United States, Provisional Measures, Order of 10 May 1984, ICJ Reports 1984,
p. 169. All but one paragraph were unanimously adopted.
Paragraph B(2) was adopted by fourteen votes to one (Judge
Schwebel). Paragraph B(2) reads as follows: ‘The right to
sovereignty and to political independence possessed by the
Republic of Nicaragua, like any other State of the region or of
the world, should be fully respected and should not in any
way be jeopardized by any military and paramilitary activities
which are prohibited by the principles of international law, in
particular the principle that States should refrain in their
international relations from the threat or use of force against
the territorial integrity or the political independence of any
State, and the principle concerning the duty not to intervene
in matters within the domestic jurisdiction of a State,
principles embodied in the United Nations Charter and the
Charter of the Organization of American States.’
32 A. Pellet
of the Application of 26 November of that same year.28So, of
course, was the Judgment on the Merits,29which can be seen
as a kind of ‘judicial treatise of international law’—the
authority of which is not reduced by the US Judge’s dissent 30:
too voluminous, too harsh, too obviously one-sided. It was,
however, unfortunate that two respected ‘Western’ Judges
joined Judge Schwebel in his opposition to the Judgment: it
made the Court look as a forum for East-West opposition.
Fortunately, the French Vice-President and the Italian
(although with apparent reluctance)31and Norwegian Judges
voted with the majority, together with the French Judge ad hoc
appointed by Nicaragua, Dean Claude-Albert Colliard.
Whatever its composition, the strong majority in favour of
Nicaragua—on rather obvious grounds to say the truth 32—
confirmed the soundness of the strategy followed by
28Nicaragua v. United States (Jurisdiction), supra n. 5, p. 392.
29Nicaragua v. United States (Merits), supra n. 5, p. 14.
30Nicaragua v. United States (Merits), supra n. 5, Dissenting opinion of Judge
Schwebel, p. 259.
31Nicaragua v. United States (Merits), supra n. 5, Separate opinion of
Judge Ago, p. 181.
32This is not to say, however, that it was a full victory. I have
in mind in particular, the most regrettable ‘Nicaragua test’
concerning attribution of acts of individuals or groups of
individuals to a State according to which ‘it would in principle
have to be proved that that State had effective control’ over
these individuals and.it must ‘be shown that this “effective
control” was exercised, or that the State’s instructions were
given, in respect of each operation in which the alleged
violations occurred, not generally in respect of the overall
actions taken by the persons or groups of persons having
committed the violations’ (Nicaragua v. United States (Merits), supra n.
5, p. 65, para 115). Probably inspired by Judge Ago, this very
debatable position has had a quite impressive posterity (see
e.g. Article 8 of the ILC Articles on the Responsibility of States
for internationally wrongful acts (YbILC 2001, Vol. II, Part Two, p.
47) orApplication of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Reports 2007, p.
208, para 400).
Nicaragua: Goliath could be defeated by David when weapons
were equals—in fact Goliath refused to fight: probably
conscious that they had no serious legal argument to oppose
to Nicaragua’s case on the substance, the USA did not appear
during the merits phase. This, in itself can be held as a sign of
weakness.
As could be expected the United States did not recognize—
at least in a first time—the decision of the Court. Nicaragua
having requested—as early as 27 June 1986—the convening
‘of an emergency meeting of the Security Council to consider
the escalation of the United States’ policy of
aggression,33without fear of ridicule, the representative of the
United States argued ‘that, even at first reading, serious
questions could be raised about certain conclusions of law
which were included in the Court’s opinion [sic]. He went on
to add that those conclusions were uniquely dependent on
the evidence and the facts presented by Nicaragua. He did
not believe that the Court was equipped to deal with complex
facts and intelligence information which was not available to
it. ’ 34
Although the Court’s Judgment was not devoid of any
concrete effect,43the hostile actions of the USA against
Nicaragua persisted and there was no question of complying
with the Judgment, which led Nicaragua to request a new
emergency meeting of the Security Council, that time,
expressly ‘in accordance with the provisions of Article 94 of
the Charter, to consider the “non-compliance” by the United
States with the Judgment of the International Court of Justice
dated 27 June 1986 concerning Military and Paramilitary
Activities in and against Nicaragua.’44The draft resolution,
sponsored by five Non-Aligned States members of the Council
at the time,45read e.g. as follows:
33Letter from the Permanent Representative of Nicaragua to the

United Nations addressed to the President of the Security
Council, 27 June 1986, UN doc. S/18187.
342694th meeting, 1 July 1986 (Repertoire of the Practice of the Security Council,
1985-1988, UN Doc. ST/DPA/1/Add.10, p. 344). See also the
position expressed by the representative of the USA
34 A. Pellet
Having considered the events that have taken place in
and against Nicaragua after the said Judgment, in
particular, the continued financing by the United States of
military and other activities in and against Nicaragua,
Emphasizing the obligation of States, under customary
international law, not to intervene in the internal affairs of
other States,
1. Urgently calls for full and immediate compliance with
the Judgment of the International Court of Justice of 27
June 1986 in the case of “Military and Paramilitary
Activities in and against Nicaragua” in conformity with the
relevant provisions of the Charter. 46
The adoption of the resolution was defeated by the US

veto.47Although Nicaragua’s Legal Team had prepared a
Memorial on Compensation which was filed on 29 March 1988,
the text of which can be found at the Court’s website, 48the 1986
Judgment has never been concretely implemented—although
never violated either.
Following the elections held in 1990, Violeta Barrios de
Chamorro, supported by a coalition of opposition parties
replaced the Sandinista President Daniel Ortega.
at the 2718th meeting, focusing on the alleged lack of

jurisdiction of the Court (PV.2718, 28 October 1986, pp. 44-
46).
43
It resulted in a least overt support to the contras, but the US
assistance, more or less private, but publicly encouraged
persisted. In her book Compliance with Decisions of the International Court of Justice,
C. Schulte notes that ‘ [o]n 25 May 1984, after the Court had
indicated interim measures at the request of Nicaragua and
ordered the US to cease any support for military and
paramilitary activities in and against Nicaragua, the House of
Representatives rejected the White House’s request for
Contra aid for the first time, and subsequent requests were
denied until 25 June 1986, two days before the delivery of the
judgment on the merits. There was thus a period of over two
years in which there was no official assistance for the Contras’
(p. 209; see also p. 197 and footnote 746). ‘As later revealed,
however, the White House and the CIA had engaged in illegal
covert support of the Contras’ (ibid., pp. 209 and 332; see also
Reichler (2001), pp. 34-35 and 44-45). Repertoire of the Practice of the Security
44
Council, 1985-1988, UN Doc. ST/DPA/1/ Add.10, p. 353.

5
Congo, Ghana, Madagascar, Trinidad and Tobago and United
Arab Emirates.
46
Draft Resolution of 28 October 1986, UN Doc. S/18428.
47
There were three abstentions: France, Thailand and the UK
(S/PV.2718, p. 51).
48
http://www.icj-cij.org/docket/files/70/9621.pdf.
This change resulted in the normalization of the relations
between Nicaragua and the United States. On 17 April 1991,
President Chamorro was received by President Bush who
declared.
Dona Violeta, I am proud to stand with you, and our
nation is proud to stand by you. We’re offering over $500
million in aid over your first 2 years as President. And
we’ve joined with other developed countries to work with
the international financial institutions to help Nicaragua.
And beyond aid, we’re offering opportunities for trade
and investment that will benefit both our countries3536
through the Enterprise for the Americas Initiative.
One of the main results of this normalisation was the
conclusion on 25 September 1991 of an Agreement by which
(inter alia) the two countries ‘expressed their desire “to enhance
the friendship and spirit of cooperation between each other”
and “in furtherance of the goals of the Enterprise for the
Americas Initiative and the Caribbean Basin Initiative” the
United States discharged and waived all right of repayment on
a total amount of debt outstanding of US$ 259,529,555.95 [50]
that had its origin in a Program of the Agency for
International Development. Additionally, the United States
Government has been providing bilateral financial assistance
to Nicaragua and also through international institutions.’ 37
35Remarks at the Welcoming Ceremony for President Violeta

Chamorro of Nicaragua (17 April 1991)
http://web.archive.org/web/20030421023609/http://bushlibra
ry.tamu.edu/papers/1991/91041700.html.
36In its Memorial on Reparation, Nicaragua had requested the
payment of more than 11 billion dollars as a compensation for
the damages caused by the US violations of international law
(see Memorial of Nicaragua, 29 March 1988, paras 492-497).
37Arguello (1996), note 153. See also Central Bank of
Nicaragua, Nicaragua en la Iniciativa HIPC—Memoria y Perspectivas, Managua,
Central Bank of Nicaragua, p. 31. On 6 January 1992,
Nicaragua and the United States concluded an Agreement of
Friendship and Cooperation between the Government of the
United States of America and the Government of Nicaragua
36 A. Pellet
While this Agreement was about to be concluded, on 12
September 1991, the Agent of Nicaragua informed the
Registrar of the Court that:
Taking into consideration that the Government of
Nicaragua and the Government of the United States of
America have reached agreements aimed at enhancing
Nicaragua’s economic, commercial and technical
development to the maximum extent possible, the
Government of Nicaragua has decided to renounce all
further right of action based on the case in reference
and, hence, that it does not wish to go on with the
proceedings.
It is my duty, therefore, to request that the Court make
an Order officially recording the discontinuance of these
proceedings and directing the removal of the case from
the list.38
This request was confirmed by a letter of 25 September
1991 of the Legal Adviser of the United States Department of
State informing the Court that,
Taking into account the agreement of the United States
and Nicaragua to take steps to enhance their friendship
and mutual cooperation, including the renunciation by
Nicaragua of all further right of action based on the
aforementioned case, the United States welcomes the
Nicaraguan request for discontinuance of the
proceedings.
The United States takes this action without prejudice to
its longstanding view that the Court is without jurisdiction
to entertain the dispute and that the Nicaraguan
Application of April 9, 1984 is inadmissible.39
Therefore, it is apparent that, against a common belief, 40the
1986 Judgment cannot be considered as not having been
implemented41—for good or bad reasons, the case has been
(TIAS, No.11844) and a few years later, on 28 August 1995,

they signed a new Agreement regarding the consolidation and
rescheduling of certain debts owed to, guaranteed by or
insured by the United States Government and its agencies
(KAV, No. 4461).
38The text of this letter is available on the Court’s website:
39Ibid.
40See e.g. Gill (1989), p. 297 or Speech by H.E. Judge Hisashi
Owada, President of the International Court of Justice, to the
Sixth Committee of the General Assembly, 29 October 2010, p.
6.
41For a detailed review of actions related to compliance with the
1986 Judgment, see Schulte (2004), pp. 197-211.
discontinued on request of Nicaragua itself. In the words of
Ambassador Argüello:
The United States in this letter of 25 September
recognized that the Judgment of the Court created
obligations that it had to negotiate with Nicaragua.
Another question is whether it somehow forced its way
out of its obligations or tricked Nicaragua into releasing it
from them. The fact remains that the United States felt
the need to comply with the Judgment of the Court.
Whether this agreement with Nicaragua included a
payment of one peso compensation or ten billion dollars,
the result is the same: the United States finally complied
with the Judgment of the International Court of Justice.
What about Nicaragua? Did it do the right thing in
discontinuing.. .did it receive something of real value
from its legal victory over Goliath? As I asked myself
these questions, I remembered a meeting of Agents
called by the President of the Court in 1985 to settle
some questions of procedure in the Merits phase of the
case. This was after the Judgment on Jurisdiction and the
disappearance of the United States, so the meeting was
in fact between the President and some officials of the
Registry and the Agent of Nicaragua. At that meeting I
indicated that Nicaragua wanted an opportunity to
address the issue of compensation in the merits phase.
After a while, President Elias asked: did Nicaragua bring
this case looking for compensation or for peace?
The answer I gave President Elias in early 1985, is the
same answer I repeated to myself in September 1991
when I received the instructions for discontinuance. The
case against the United States always had one real
objective: peace.42
2.2 The Other Cases Building on the Momentum of the

‘Big Case’
It is certainly true that Nicaragua felt strongly encouraged in

using the ICJ as an instrument of its external legal policy by the
1984 then 1986 successes.
The cause and effect link is squarely apparent inasmuch the
two Border and Transborder Armed Actions cases versus Costa Rica on
the one hand and Honduras on the other hand are
concerned.57Both were introduced on 28 July 198658and bore
upon the assistance given by Nicaragua’s two neighbours to
‘armed bands of counter-revolutionaries’ (the ‘contras’) based
on their respective territories and carrying armed attacks on
42Arguello (1996), p. 55.
38 A. Pellet
Nicaragua’s territory and, concerning Honduras, the direct
participation of the Honduran military forces in military
attacks on Nicaragua.
Contrary to Costa Rica, Honduras raised preliminary
objections in which it alleged in particular that.
the overall result of Nicaragua’s action is “an artificial and
arbitrary dividing up of the general conflict existing in
Central America”, which “may have negative
consequences for Honduras as a defendant State before
the Court”, because [...] certain facts appertaining to the
general conflict “are inevitably absent from the
proceedings before the Court”, and other facts have
already been in issue before the Court in the case
concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America). Honduras contends that no real
distinction can be made between the general situation of
tension in the region and the various bilateral disputes
which Nicaragua claims to exist there, and that the
“procedural situation” created by Nicaragua's splitting-up
of the overall conflict into separate disputes is contrary to
the requirements of good faith and the proper functioning
of international justice. 59
Although these assertions were indisputably legally

irrelevant,60they realistically describe the then existing
situation: backed by the United States, both Costa Rica and
Honduras served as a rear base for the contras and the ensuing
situation was an overall armed conflict and all three cases
related to it.
Both cases were discontinued at Nicaragua's requests
following an agreement between the Parties, but separate in
time. Concerning Costa Rica the discontinuance of the case
occurred as early as 1987 following the conclusion, on 7
August 1987, of the ‘Esquipulas II’ Agreement, entitled
‘Procedure for the establishment of a firm Interestingly, Nicaragua lodged
57
no Application against El Salvador which however had been the only State which had filed, on 15
August 1984, a declaration of intervention in the Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America) case. The Court summarily found this declaration
inadmissible (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 216,
para 3(ii)) and was harshly criticized for this summary dismissal by Judges Ruda, Mosler, Ago,
Jennings and de Lacharriere (Joint Separate Opinion, ICJ Reports 1984, p. 219) Oda (Separate
Opinion, ibid., pp. 220-221) and Schwebel (Dissenting Opinion, ibid., pp. 223-244). According to the
present writer, such an intervention, as Preliminary Objections phase was clearly premature; it would
have been shocking to dismiss an intervention on the merits in such a cavalier manner; but neither El
Salvador nor Costa Rica or Honduras attempted to intervene at that stage.
58
Border and Transborder Armed Actions (Nicaragua v. Costa Rica), Application, 28 July 1986 and
Border and Transborder Armed Actions (Nicaragua v. Honduras), Application, 28 July 1986. 59Border
and Transborder Armed Actions (Nicaragua v. Honduras), Preliminary Objections, Judgment, ICJ
Reports 1988, p. 91, para 53.
60
Ibid., pp. 91-92, para 54.
and lasting peace in Central America’ (‘Procedimiento para establecer
43444546
una paz firme y duradera en Centro América’) between the five
States of the region. This circumstance was not of such a
62
nature to induce Nicaragua to request the discontinuance of

the Honduras’ case—probably because the military and
counterrevolutionary pressure from the North was stronger
than from the South; moreover, in the post-Esquipulas
discussions63Costa Rica had shown more open to a con-
structive dialogue than Honduras. And it is only in 1992, 1
year after the discontinuance of the case against the United
States, that ‘by a letter dated 11 May 1992, [...] the Agent of
Nicaragua informed the Court that, taking into consideration
that the Parties had reached an out-of-court agreement aimed
at enhancing their good neighbourly relations, the
Government of Nicaragua had decided to renounce all further
right of action based on the case, and that that Government
did not wish to go on with the proceedings.’64The difference in
timing between both requests for discontinuance is a topical
example confirming the use of the Court as a means of
pressure as part of Nicaragua’s judicial and, more widely,
legal policy: bigger the threat, longer the use of the judicial
pressure.
Be this as it may, again, the Court’s unanimous Judgment
recognising its competence and the admissibility of
Nicaragua’s Application in the Honduras case was indeed a
supplementary incitement to have recourse to the Court for
settling its disputes with its neighbours with which it had
often had difficult relations since the times of their respective
independence in 1821.
This is certainly why Nicaragua, with the certainty of the
Court's jurisdiction based on the Pact of Bogota confirmed by
43See UN doc. S/19085, 31 August 1987.

http://www.un.org/en/ga/search/view_doc.asp? symbol=S/19085.
44Border and Transborder Armed Actions (Nicaragua v. Costa Rica), Order of 19 August 1987,
ICJReports 1987, p. 183.
45See pp. 26-27 below.
46Border and Transborder Armed Actions (Nicaragua v. Honduras), Order of 27 May 1992, ICJ Reports
1992, p. 223.
40 A. Pellet
the Judgment of 22 December 1988 against Honduras,
decided to launch or participated in several new cases in
order to solve maritime disputes with its neighbours:
- Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening)474849;
- Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v. Honduras)66;
- Territorial and Maritime Dispute (Nicaragua v. Colombia) ;
61
- Question of the Delimitation of the Continental Shelf

between Nicaragua and Colombia beyond 200 nautical
miles from the Nicaraguan Coast (Nicaragua v. Colombia)68;
- Maritime Delimitation in the Caribbean Sea and the Pacific
Ocean (Costa Rica v. Nicaragua)69
The ongoing situation in this respect is as follows:
- Inthe Gulf of Fonseca, El Salvador, Honduras and
Nicaragua have joint sovereignty over its water, with the
exception of a belt ‘extending 3 miles [...] from the littoral
of each of the three States, such belt being under the
exclusive sovereignty of the coastal State’.70This leaves
unresolved the delimitation of the maritime spaces inside or
outside the Gulf71;
- The maritime boundary between Nicaragua and Honduras
has been fixed by an ICJ Judgment of 8 October 2007,
which Honduras attempted to partly challenge by
introducing a request for intervention in the Nicaragua v.
Colombia case, which was, rightly, rejected by the Court’s
Judgment of 4 May 2011.72
- The maritime boundary with Colombia is partially
delimited; however the Court did not decide on the limit of
the continental shelf beyond 200 nautical miles because
Nicaragua had ‘not established that it has a continental
margin that extends far enough to overlap with Colombia’s
47Special Agreement of 11 December 1986; Application for
permission to intervene of 17 November 1989 and the
Judgment on this Application of 13 September 1990; and
Judgment on the Merits of 11 September 1992.
48Application of 8 December 1999 and Judgment on the Merits of 8
October 2007.
49Application of 6 December 2001 and Judgment on the Merits of 19
November 2012.
200-nautical-mile entitlement to the continental shelf,
measured from Colombia’s mainland coast’73‘[Nicaragua]
had yet to discharge its obligation, under paragraph 8 of
Article 76 of UNCLOS, to deposit with the CLCS the
information on the limits of its continental shelf beyond 200
nautical miles required by that provision and by Article 4 of
Annex II of UNCLOS’74This limitation in the Court’s decision
has led Nicaragua to make a new Application on 16
September 2013 in order to have the delimitation
completed.75Moreover, since Colombia refused to implement
the 2012
68
Application of 16 September 2013.
69
Application of 25 February 2014.
10
El Salvador/Honduras, Merits, Judgment, ICJ Reports 1992, p. 616, para 432(1).
11
Ibid, p. 617, para 432(2).
72
On the same day, the Court also dismissed a request by
Costa Rica to intervene in Nicaraguav. Colombia. While there is no
doubt concerning the wisdom of the rejection of the
Honduras’ request on the basis of the principle res judicata, I have
doubts concerning the dismissal of the Costa Rican request:
the decision of the Court in that case can be seen as a step
backward hardening the conditions for the admissibility of
requests for intervention. See the contribution of Miron A.
73
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, p. 669,
para 129.
74
Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200
nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections,
Judgment of 17 March 2016, para 84.
75
Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200
nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia). The Court found jurisdiction in
this case in a Judgment of 17 March 2016.
Judgment, Nicaragua filed another Application in view of
requesting the Court to decide that Colombia is in breach of
its obligations to respect its rights in its maritime areas and
is bound to comply with the Judgment of 19 November
2012.76
- As far as the maritime boundaries with Costa Rica, both in
the Caribbean Sea and the Pacific Ocean, are concerned, it
is the object of proceedings introduced by Costa Rica on 25
February 2014 which are pending at the time when this
paper is being drafted. Hearings in this case—to which the
Court has joined another case artificially introduced by
Costa Rica on 16 January 2017 with regard to a dispute
concerning Land Boundary in the Northern Part of Isla Portillos—were
42 A. Pellet
held in July 2017.
These last two cases are episodes of the ‘judicial guerrilla’
between Costa Rica and Nicaragua. While Costa Rica, by
contrast with Honduras, had not opposed preliminary
objections to the Nicaragua’s Application in the Transborder armed
actions case, it introduced on 29 September 2005 an
Application accusing Nicaragua to be in breach of its
obligations to recognize Costa Rica’s free exercise of its rights
of navigation and associated rights on the San Juan River in
violation of the Treaty of 15 April 1858 and its interpretation
given by the Arbitral Award of US President Cleveland of 22
March 1888. This was the object of the Judgment of 13 July
2009.
Although this nearly unanimous Judgment was extremely
balanced, it seems to have been badly received by some
portions of the public opinion in both countries and was at the
origin of regrettable and irrational operations among which
from the Nicaraguan side the digging of a cam in a part of the
delta of the San Juan River belonging to Costa Rica and, on
the part of Costa Rica, the rather badly conceived and hasty
construction of a road along the San Juan. Both actions called
for cross applications from one and the other State, 77which
were (very artificially) joined78 Alleged Violations of Sovereign Rights and
16
Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Application of 26 November 2013.
The Court found jurisdiction in this case in a Judgment of 17 March 2016. In its Memorial of 17
November 2016, Colombia raised counterclaims (pp. 233-342). At the time of writing of this
contribution, the Court has not yet decided upon the admissibility of these counter-claims.
77
See Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Application of 18 November 2010 and Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica), Application of 21 December 2011.
78
See Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), Joinder of Proceedings, Order of 17 April 2013, ICJ Reports 2013, p. 166 and
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Joinder
of Proceedings, Order of 17 April 2013, ICJ Reports 2013, p. 184. In the Certain Activities
case, Nicaragua raised several counter-claims: ‘Nicaragua has
become the sole sovereign over the area formerly occupied by
the Bay of San Juan del Norte; (2) Nicaragua has a right to
free navigation on the Colorado Branch of the San Juan de
Nicaragua River until the conditions of navigability existing at
the time the 1858 Treaty was concluded are re-established;
(3) Costa Rica bears responsibility to Nicaragua — for the
construction of a road along the San Juan de Nicaragua River
in violation of Costa Rica’s obligations stemming from the
1858 Treaty of Limits and various treaty or at the request of
Nicaragua and resulted in a Judgment of 16 December 2015 which can be seen as
being globally unfavourable to Nicaragua: although the Court unanimously found ‘that
Costa Rica has violated its obligation under general international law by failing to
carry out an environmental impact assessment concerning the construction of Route
1856’ (the road along the San Juan River), it also decided that Costa Rica has
sovereignty over the ‘disputed territory’, and that, by excavating cantos and
establishing a military presence on Costa Rican territory, Nicaragua has violated the
territorial sovereignty of Costa Rica and has the obligation to compensate Costa Rica
for material damages caused by its unlawful activities on Costa Rican territory. 79Four
Judges showed irritation visa-vis Nicaragua in going as far as approving Costa Rica’s
request that Nicaragua be ordered to pay costs incurred in the proceedings—a request
which was rejected by the majority.80
Immodestly triumphant, Costa Rica saw fit to introduce two
new actions against Nicaragua and (1) asked the Court to fix
the quantum of the compensation due to it in application of the
2015 Judgment at what seems to be a most exaggerated
amount81and (2) submitted a new Application instituting
proceedings against Nicaragua with regard to a dispute
concerning the precise definition of the boundary in the area
of the delta of the San Juan River and the establishment of a
new military camp by Nicaragua on allegedly Costa Rican
territory.82This new case is quite artificial since for determining
the maritime boundary between the two States, the Court
ought, in any case, to fix the starting point of the land
boundary.
There can be no doubt that recourse to the ICJ by both
Nicaragua and Costa Rica was in part inspired by irrational
reflexes. However, from the part of one and the other State,
these reflexes bear witness of the confidence of their
respective customary rules relating to the protection of the environment and good
neighbourliness; and — for the non-implementation of the provisional measures indicated by the
Court’s Order of 8 March 2011’ (Certain Activities Carried Out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica), Counter-Claims, Order of 18 April 2013, ICJ Reports 2013, p. 206, para
15). The Court found the first two counter-claims inadmissible and considered that there was no need
to entertain the third and fourth counter-claims as such (ibid., pp. 215-216, para 41) since the Court
decided to join both proceedings.
79
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua);
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment
of 16 December 2015, para 229(1), (2) and (6).
80
Ibid., para 144.
81
See Letter of the Co-Agent of the Republic of Costa Rica, 16
January 2017 (see Certain Activities carried out by Nicaragua in the Border Area (Costa
Rica v. Nicaragua), Order of 2 February 2017). This request is
pending at the time of writing of this contribution. Costa Rica
deposited its Memorial on 3 April 2017 and Nicaragua
deposited
82
its Counter-Memorial on 2 June 2017.
Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua),
Application of 16 January 2017. This case has been joined to
the case concerning Maritime Delimitation between Costa Rica and
44 A. Pellet
Nicaragua (Order of 2 February 2017).
governments in the Court’s wisdom and its ability to settle
disputes having a deep political dimension. Even if some
requests could, considered from an external point of view, be
seen as unwarranted, not to say abusive, the recourse to the
ICJ has been no doubt a means to ease the tension between
the two States and, all things considered, the Court has been
able to find balanced and appeasing solutions— even if it is
always possible to criticise one aspect or another in its
reasoning.
More globally, it is difficult to deny that Nicaragua has
made political use of the ICJ, the recourse to which being an
essential part of its ‘foreign legal policy’. But there is nothing
wrong in that: law is a legitimate part of the tools to be used
in international relations and indeed it is better to obtain
decisions from the World Court than to let the weapons do
the talking. And one can only approve the ICJ when it claims
that ‘[i]t must [...] be remembered that, as the Corfu Channel
case (ICJReports 1949, p. 4) shows, the Court has never shied
away from a case brought before it merely because it had
political implications or because it involved serious elements
of the use of force.’50
3 Nicaragua’s Judicial Strategy Before the ICJ
Is there a specificity of Nicaragua’s judicial strategy before the

ICJ? I would say yes in that it is characterized by both linked
words: continuity and confidence. ‘Continuity’ in that I think
the whole ‘strategy’ of Nicaragua has been inspired, from the
very beginning by its confidence in the ICJ as a ‘civilized
means’ of settling dispute (a confidence enhanced by the
1984 and 1986 Judgments). But continuity also with regard to
the composition and working traditions of the Legal Team
which are based on mutual confidence from the Agent and
between the members of the Team.
50Nicaragua v. United States (Jurisdiction), supra n. 5, p. 435, paras 95-

96.
3.1 Continuity and Renewal in the
Composition of the Nicaraguan Team
There still is a core ‘historical Team’ dating back from the ‘Big
Case’ which I have described in some details elsewhere.51
Key is of course the nearly perpetual52Agent of Nicaragua,
Ambassador Carlos Argüello Gomez. As such he was the
signatory of the Application against the USA on 9 April 1984.
To that end, he was appointed as the Ambassador of
Nicaragua to
The Hague where he stayed until 1990, then again from 1993
to 1997 and from 2000 until now.53At the time of his
appointment, Arguello had been Vice-Minister (1980) then
Minister for Justice (1982). In spite of his long stay far from
Managua, he seems to have kept close links with the
Nicaraguan leadership.
No doubt that he was fit for the job exactly as the job was
made for him: a good lawyer,54very knowledgeable in
international law,55usually staid,56he is intransigently patriot,
which from time to time, induces him in polarizing on matters
51Pellet (2012). I summarize here in large part what I have
written in that book.
52In the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua),
Nicaragua first appointed Dr. Mauricio Herdocia Sacasa as its
Agent. After the 2006 elections, he was replaced by
Ambassador Arguello Gomez.
53Since 2009 he is the Dean of the diplomatic corps to the
Netherlands.
54He is Doctor of Law of the Universidad Centroamericana
(1970) and became an attorney specializing in civil law (1970-
1979). He renewed with private practice during the periods
1990-1993 and 1997-2000 when he was called back to
Managua; during these same periods he was a professor at
the Faculty of Law and Social Sciences of the Universidad
Centroamericana of which he was the Dean from 1997 to
2000.
55He has been elected a member of the International Law
Commission of the United Nations in 2016 for a 5-year term.
56I am more impetuous than ‘CAG’ is and, in spite of our long
and profound complicity, his slowness to take decisions
sometimes makes me nervous.
46 A. Pellet
which seem rather secondary to foreign lawyers (and
probably to the Judges); and, while he is usually flexible and
open to change his mind on many things, he will be
unyielding when he thinks—rightly or not—that the political
interests or, even more, the honour of Nicaragua are at stake.
There is no doubt that his (strong) personality has a decisive
influence on the atmosphere and the methods of work of the
Nicaragua’s Legal Team.
Originally, the Team counted two very well-known senior
members: in order of appearance, Professors Abram Chayes
and Ian Brownlie.
Abe Chayes, a former Legal Adviser to the State
Department—one of the ‘best and the brightest’, 57reached this
position of responsibility in the wake of John Fitzgerald
Kennedy. He was gaiety and elegance incarnated—elegance
of thought and mind.58Introduced to the Nicaraguan
authorities by his former student at Harvard Law School, Paul
Reichler,59he chose to plead for Nicaragua, aware of the
criticism he would face from a large part of US public
opinion,60but he considered that honour of his country was at
stake. One day, when I ventured to ask him whether it
bothered him to plead against his country, he replied, ‘We are
a free country’... No comment!
57From Halberstam (1993).
58In my memories, he is inseparable from his lovely and
bright wife Antonia (Toni) Handler. Among the many positions
she held in both the private and public sector, she served as
United States Under Secretary of the Air Force from 1979 to
1981 before teaching at the JohnF. Kennedy School of
Government and then at the The Fletcher School of Law and
Diplomacy.
59See p. 33 below. Chayes’ assistant was Anne-Marie
Slaughter. I had the impression that, although he had chosen
her among his Harvard students, he did not recognize her
distinguished talents (one of which being her excellent
French!). She later became a professor at Princeton and
served as a President of the ASIL from 2002 to 2004.
60His portrait was even taken from the wall of legal counsel in the State
Department!
The other late eminent person forming the initial Team was
Ian Brownlie.61He already had an impressive practice and was
familiar with the small (at the time very small) world of the
International Court of Justice. He immediately and very
naturally appeared as the lead Counsel of Nicaragua and
remained so until his tragic passing in a car accident in Egypt
in 2010.62
Besides the Agent and me,63the only survivor of the original
Team, is Paul Reichler. He was at the time a young and bright
Harvard-trained lawyer who had created a small law firm co-
led by Judith C. Appelbaum based in Washington DC.
Politically radical and fully committed in the fights for
democracy and development in Latin America and more
specifically in Nicaragua, Reichler was central in the launching
61Our relations were not always easy, but he was
nevertheless my mentor and my friend. We could often bicker
within the Nicaraguan (and other) teams in which we were
sitting together, but I have nonetheless great gratitude to
him, who introduced me to the very special job of being a
Counsel before the ICJ (see Crawford et al. 2013; Crawford and
Pellet 2008; Pellet 2000or Pellet1999).
62Abe Chayes passed in 2000.
63My recruitment in Nicaragua’s Team deserves a brief
anecdote: Ambassador Arguello Gomez visited Paris in search
of a French Counsel. He paid a visit successively to the then
Legal Adviser of the French Ministry of foreign affairs and to
the Chief of staff of the then (socialist) Prime Minister asking
for lists of possible Counsel (both reasonably knowledgeable
in international law and moderate left-wing—this also was
probably part of Nicaragua’s judicial strategy: symbolically,
their wish to have counsel having the nationality of this three
Western permanent members of the Security Council,
sympathetic to the new regime in Nicaragua, but not
communist). I understand that my name was the only one
appearing on the two lists. Although my job interview was
calamitous (I had before a full night without sleep since I had
to complete an important presentation in the annual
colloquium of the French Society for International Law on the
following day), it convinced the Agent. I suspect that the low-
level of my fees had decisive role in his decision...
48 A. Pellet
of the case against the USA, which, I suspect, he initially
conceived.64Although, at the time, quite discreet during the
Team meetings— which is no more the case! he is now
extremely talkative and sometimes ‘tormented’ but a
wonderful teamer and a bright lawyer and pleader—he was
omnipresent behind the scene. While he did not participate in
some cases after 1986, he ‘reappeared’ as a strong member
of the Team on the occasion of the first San Juan case in 2005.
He now is a partner of Foley Hoag, a renowned U.S. law firm
which is probably the World’s leading law-firm in inter-State
litigation, and the Chair of its International Litigation and
Arbitration Department. Chambers Global rightly introduces him as
‘one of the World’s most respected and experienced
practitioners of Public International Law, specializing for more
than 25 years in the representation of Sovereign States in
disputes with other States. He belongs to a select group of
elite lawyers with extensive experience litigating on behalf of
Sovereign States before the International Court of Justice in
The Hague, and the International Tribunal on the Law of the
Sea in Hamburg’.65He now is very aptly backed up by
Lawrence (Larry) Martin, Deputy Chair of the same
Department at
Foley Hoag, who brightly ensures continuity.99They are also
often backed by more junior members of the firms, all of
them skilled and most helpful.
It is no secret that I have some reservation with
systematically resorting to law-firms in inter-State cases: it
unavoidably and considerably arises the cost of the case and,
quite usually, makes the procedure more cumbersome.100This
said, resorting to a law-firm will be virtually indispensable in
two circumstances: first, for very poor States ill-equipped to
face rather complex and heavy procedures101; second, when the
case implies difficult factual or archives researches for which
law professors are poorly equipped. And, besides their
64He also introduced A. Chayes to the Nicaraguan authorities—see
above, p. 32.
65http://www.foleyhoag.com/people/reichler-paul; see also:
http://www.chambersandpartners.com/15649/96/editorial/2/1#
1757_editorial.
indisputable skill in international law, it is in this second
capacity that Foley Hoag has been tremendously efficient in
several Nicaragua’s case.
Progressively, the Nicaraguan Legal Team gained new
members more or less permanently involved in the pleading.
First among them the Spanish Professor Antonio Remiro
Brotons, who first appeared in the case against Honduras in
1988. I have a particular admiration for his talent in analysing
complex legal issues and finding solutions; he is central for
putting legal issues in historical perspective. Enjoying the
Agent’s confidence, this pure hispanophone is an influential
member of the Team.
Later, along with the needs, other eminent colleagues
joined the ‘community’: Professor Vaughan Lowe,
indisputably, one of the top contemporary international
lawyers, mainly involved in law of the sea issues, also dealt
with extreme skill by Alex Oude Elferink, professor at Utrecht
University School of Law and at the University of Troms0 and
Director of the Netherlands Institute for the Law of the Sea.
For his part, Stephen McCaffrey has been called to join the
Team on the occasion of the first San Juan case and provides
Nicaragua with his formidable expertise in environment and
river law—which does not prevent him of being both an
excellent ‘ general international lawyer’ and a good
companion.
This description of the Nicaraguan Legal Team would not
be complete without mentioning the experts on the one hand
and the Embassy task force on the other hands.
As for the experts, they are sometimes—not always!—
indispensable to explain technical matters. Some are ‘quasi-
permanent’—this is the case of the successive hydrographers
and cartographers who were called to participate in the five
boundary cases confronted by Nicaragua, Robin Cleverly,
former Head of the Law of the Sea Group at the United
Kingdom Hydrographic Office and now leading a consulting
"Martin is as reserved and quiet as Reichler is expansive and talkative—sometimes prolonging unduly
the discussion! but with such an endearing personality that you cannot blame him. Both are great and
totally reliable lawyers.
100
See Pellet (2000), pp. 155-156; Crawford et al. (2013), pp. 13-
14; and Pellet (2016), p. 411; see also: Malintoppi (2017), pp. 49-
50 A. Pellet
54.
101
In such a case the intervention of the law-firm should be
strictly confined to material and formal tasks.
firm at a time together with Dick Gent, Law of the Sea
Consultant. Others are resorted to in a particular case for
intervening on specific technical issues.66
Last but not least, the ‘Embassy Task Force’. In truth, this
might be a rather excessively formal appellation to designate
the single or two collaborators of the Agent who is or are
beautifully performing a lot of ungratifying but indispensable
tasks: assembling the documentation, answering questions by
grumbling counsel, answering last minute demands from the
Agent, assembling written pleadings, preparing Judges’
folders... In some legal teams, this can keep ten persons or
more busy full time. For Nicaragua one or two will more often
than not do two or more cases together. They, indeed
deserve to be mentioned: Tania Pacheco (who is now
participating in the Team as counsel) and, since 2009 and
2011 respectively, Edgardo Sobenes and Claudia Loza.67And I
should not forget Sherly Noguera de Arguello, the Agent’s
wife who takes care of two essential aspects of the life of any
legal Team: securing quick payments of the Counsel’s fees
66In the Certain Activities case and the Road case, Nicaragua
consulted e.g. an earth scientist (Danny K. Hagans), an
aquatic ecologist (Blanca P. Rios Touma), a geomorphologist
and ecohydrologist (Scott P. Walls) and a geographer (Victoria
Leader). Nicaragua also appointed a fluvial geomorphologist
and environmental planner (G. Lathias Kondolf), as
independent expert.
67The ‘Embassy Task Force’ works in close cooperation with Counsel’s assistant—and this an
occasion to pay tribute to my successive assistants in the various Nicaragua’s cases: Nadine Susani
(Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua
v. Honduras) and Territorial and Maritime Dispute (Nicaragua v. Colombia)), Daniel Müller (Dispute
regarding Navigational and Related Rights (Costa Rica v. Nicaragua)) Alina Miron (Territorial and
Maritime Dispute (Nicaragua v. Colombia)),Romain Pieri (Territorial and Maritime Dispute
(Nicaragua v. Colombia)) and Benjamin Samson (Certain Activities carried out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan
River (Nicaragua v. Costa Rica); Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v.
Colombia); Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia); Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa
Rica v. Nicaragua); and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v.
Nicaragua) in which he appeared during the Hearings on behalf of Nicaragua).
and feeding the Team during the meetings and the hearings—
I maintain that she is the best cook in The Hague (at least!).
3.2 Working Methods and Judicial Strategy
There is no doubt that the combination of repeated cases

before the Court, a stable and reasonably united Team used
to work together, and the globally placid temperament of the
Agent has an effect on the atmosphere and the methods of
work of the Nicaraguan Team.
First of all, it is in order to speak of ‘the Team’ in the
singular—in spite of its partly changing composition
depending on the case at stake: we are used to work
together and have to live with the qualities and defects of
colleagues and after a time of apprenticeship you even get
used to last minutes planning and late requests from the
Agent ... I would even go as far as saying that if this can
create some ‘timing stress’, it is in some respect reassuring: I
am sincerely convinced that Nicaragua’s pleadings—whether
written or oral—are just as good as others which are not
prepared in a rush and each phase being preceded by a great
number of meetings—while, concerning Nicaragua, two
meetings for a particular phase are (rightly I think) a great
maximum.
The discussions within the Team take place in a friendly
atmosphere68and are frank and usually fruitful. The Agent
would shortly indicate where he thinks we are and ask
Counsel to give their opinion. Paul Reichler will think aloud for
quite a long time but come at the end with enlightening
suggestions. Antonio Remiro Brotons would make his point in
his unique and characteristic idiom.69I would grumble my
disagreement with what has been said and Vaughan Lowe or
Steve McCaffrey would find a way out. And, as far as the
68More so, I must admit, since the tragic passing of Sir Ian
Brownlie, who, notwithstanding his great qualities, could hardly
accept to be contradicted.
69An abbreviation for Spanish/French/English.
52 A. Pellet
written pleadings are concerned, all Counsel would send their
final chapters late and the ‘Embassy Task Force’ would
succeed in editing and having the piece of written pleading
printed on time...
Now, while clearly these working methods are somewhat
peculiar (but eventually quite efficient and, probably rather
cost saving70), except if one considers that making recourse to
the ICJ a usual means of a country’s foreign legal policy is a
specificity, I do not think that Nicaragua’s judicial strategy can
be particularized. Just as any party before an international
court or tribunal, Nicaragua attempts to make the best case in
order to achieve the best possible result. Usually it will plead
with calm and, with the exception of some outcry by the
Agent when sensitive political issues are at stake, Counsel will
avoid vehement indignations. And, to my best knowledge,
Nicaragua has always complied with the Court’s decisions 71—
which has not always been the case of its opponents, the
worst behaviour being that of Colombia following the
Judgment of 19 November 2012.72
And it must be admitted that, globally, this legal strategy
has paid off. With some exceptions, Nicaragua has won its
cases. It scored a decisive point with the ‘Big Case’—and this
is all the more remarkable that it could have been rather
defiant vis-a-vis the Court since it had no ground to celebrate
the Judgment of 18 November 1960 in the case concerning
the Arbitral Award Made by the King of Spain.
Nicaragua certainly got both short term (decrease of the
70See the numbers given by Alina Miron in her article ‘Le cout
de la justice internationale: enquête sur les aspects financiers
du contentieux interetatique’ published in 2014 in Annuaire français
de droit international. As explained by the author, ‘Il est. certain que
“l’américanisation” du contentieux [...] a un coût financier considerable’ [‘It is certain
that the “americanization” of litigation [...] has a considerable
financial cost’].
71Except in one instance when uncontrolled initiatives put it in a difficult position (see Certain
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a
Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Provisional Measures, Order
of 22 November 2013, ICJ Reports 2013, p. 354).
72See the contribution of Martin L and Parkhomenko Y.
public assistance of the USA to the contras) and longer terms
benefits (financial assistance; prestige) from the 1986
Judgment. Its judicial activism also resulted in the delimitation
of most of its maritime boundaries.73The outcome is mixed
with respect to the land boundaries: indeed, there is no
question to put into question the 1906 King of Spain Award
which was confirmed by the Court and the judgments
concerning the San Juan River have clarified its legal regime—
a welcome clarification given the uncertainties resulting from
the 1858 Jerez-Canas Treaty of Limits as interpreted by US
President Grover Cleveland in its Award of 1988 and General
Alexander in its five Awards of 1897-1900. However, new
issues have arisen with the Court’s judgments in this respect
—notably concerning the starting point of the land bound-
ary74or the extent of the right of Nicaragua to dredge the
River. Moreover, it is to be noted that the abundant (and
probably excessive) and mutual use of the Court by both
countries seems to have made the relations between Costa
Rica and Nicaragua worse than ever.
However, I would suggest that, while the outcome of its
judicial strategy is overall positive for Nicaragua itself, it is
even more positive seen from the point of view of the
progress of international law.
Concerning the procedural law, the Nicaraguan cases are at
the origin of important clarifications concerning establishment
of consent to jurisdiction, the law of evidence or the
conditions for intervening before the Court.75As for substantial
law, the Nicaragua’s cases contribution to the progress and
73When the judgments will be rendered in the Question of the Delimitation of the Continental Shelf
between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua
v. Colombia) case and the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa
Rica v. Nicaragua) case, only the maritime boundary in and outside the Gulf of Fonseca and that with
Jamaica will remain undetermined.
74The problem should be solved with the Judgment to come in
the Land Boundary in the Northern Part ofIsla Portillos (Costa Rica v. Nicaragua) case.
75However, in respect to intervention, the present writer has
some doubts on whether the word ‘clarification’ is appropriate
in view of the capricious and illegible jurisprudence of the
Court in this respect—including regarding the various
instances of intervention in the Nicaragua’s cases.
54 A. Pellet
clarification of the law is even more impressive quite often for
the best, sometimes for the worst. In this last category, I
would include the most unfortunate ‘Nicaragua test’ of
effective control in view of establishing the responsibility of
the State in the acts of individuals or groups acting in
violation of international law with the assistance and/or at the
instigation of the State.76Much more welcome are the
clarifications made by the Court on the occasion of the
Nicaragua’s saga concerning issues as diverse as: treaty
interpretation, formation of customs, the relations between
treaties and customary rules, the law of armed conflicts and
the principle of non-intervention, the application of
international humanitarian law, State responsibility, sea
delimitation, the law of the environment or river law.. ,77There
are in fact very few fields of public international law which
have not been touched upon in the course of the Nicaragua’s
cases and if one keeps in mind the enormous importance of
the international case-law and, more specifically of the ICJ’s
jurisprudence in the formation, evolution and fixation of
international law, Nicaragua certainly deserves credit for this
impressive outcome.
References
Argüello Gomez C (1996) Notes by the Agent of Nicaragua on
the occasion of the 10th anniversary of the judgment of the
court in the case concerning military and paramilitary
activities in and against Nicaragua (Nicaragua v. United
States of America). Text with the author. Unpublished
Crawford J, Pellet A (2008) Aspects des modes continentaux et
anglo-saxons de plaidoiries devant la C.I.J. In: International law
between universalism and fragmentation - Festschrift in honour
of Gerhard Hafner. Nijhoff, Leiden/Boston, pp 831-867 Crawford
J, Pellet A, Redgwell C (2013) Anglo-American and continental
traditions in advocacy before international courts and tribunals.
Camb J Int Comp Law 2:1-23 Damrosch LF (2012) The impact
of the Nicaragua case on the court and its role: harmful, helpful,
or in between? LJIL 25:135-147
76See supra n. 40.
77Other Chapters in this book elaborate more on this balance
sheet, see the contribution of Bedjaoui M and d’Argent P.
Falk R (1967) The South West Africa cases: an appraisal. Int
Organ 21:1-23 Fischer G (1966) Les reactions devant l’arrêt de
la Cour internationale de Justice concernant le Sud-Ouest
africain. AFDI 12:144-154
Friedmann W (1967) The Jurisprudential Implications of the
South West Africa Case. Columbia J Transnatl Law 6:1-16
Gill TD (1989) Litigation strategy in the Nicaragua case at the
international court. In: Dinstein Y (ed) International law at
a time of perplexity: essays in honour of Shabtai Rosenne.
Nijhoff, Dordrecht, pp 197-224
Halberstam D (1993) The best and the brightest.
Ballantine Books, New York Lacharriere G (1983)
La politique juridique extérieure. Economica, Paris
Malintoppi L (2017) Avocat-conseil: secteur libre, honoraires
non conventionnes. In Ascensio H et al (eds) Dictionnaire
des idees recues en droit international. Pedone, Paris, pp
49-54.
Pellet A (1999) Remarques sur le ‘metier’ de Conseil devant la
Cour internationale de Justice. In: Nations Unies (ed) Recueil
d’articles de conseillers juridiques d’Etats, d’organisations
internationales et de praticiens du droit international. United
Nations, New York, pp 435-458 Pellet A (2000) The role of the
international lawyer in international litigation. In:
Wickremasinghe C (ed) The international lawyer as practionner.
BIICL, London, pp 147-162 Pellet A (2012) The Nicaragua case:
‘Mafiosi’s’ and ‘Veteran’s’ approaches combined. LJIL 25:481-489
Pellet A (2013) Remarques cursives sur les contentieux
‘africains’ devant la C.I.J. In: Kamga M, Mbengue MM (eds)
Africa and international law: reflections on the international
organization: Liber Amicorum Raymond Ranjeva. Pedone, Paris,
pp 277-295 Pellet A (2016) ‘La Cour’ - Supputations indecises
sur l’avenir de la C.I.J. In: Melanges en l’honneur du Professeur
Habib Slim - Ombres et lumières du droit international. Pedone,
Paris, pp 393-416
Reichler P (2001) Holding America to its own best standards:
Abe Chayes and Nicaragua in the World Court. Harv Int Law
J 42:15-46
Satzer J (2007) Explaining the decreased use of International
Courts - the case of the ICJ. Rev Law Econ 3:11-36
Schulte C (2004) Compliance with decisions of the International
Court of Justice. OUP, Oxford
Alain Pellet is Emeritus Professor of the University Paris Nanterre;
a former Chairperson of the UN International Law
Commission; the President of the French Society for
International Law and a Member of the Institut de Droit International. He
has been agent or counsel and advocate in more than 60
cases before the International Court of Justice and has
participated in many international and transnational
arbitrations. In particular, he has been counsel for Nicaragua
since 1983. He is the author or co-author or co-editor of many
books and articles in international law (www.alainpellet.eu).
Part II
Evidentiary Matters
Nicaragua v. United States and Matters of
Evidence Before the International Court of
Justice
Paul S. Reichler and Yuri B. Parkhomenko
Abstract In Nicaragua
v. United States, the Court had to address
claims requiring it to sort through an enormous mass of
factual elements, many of which were contested by the
disputing parties. The Court’s task was further complicated by
the very nature of the dispute arising from an ongoing armed
conflict and by the respondent State’s decision not to appear
during the merits phase of the proceedings, thus depriving
the Court of the benefit of its complete and fully argued
statement regarding the facts. This chapter identifies the
most critical evidentiary issues in the case, examines how the
Court dealt with them, and shows that the guidelines the
Court developed on how to treat and evaluate evidence have
become a model followed in subsequent cases involving
contested and complex facts.
Paul Reichler was part of the legal team representing the Republic of Nicaragua in the following
cases: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America); Territorial and Maritime Dispute (Nicaragua v. Colombia); Dispute regarding
Navigational and Related Rights (Costa Rica v. Nicaragua); Certain Activities carried out by
Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along
the San Juan River (Nicaragua v. Costa Rica); Question of the Delimitation of the Continental Shelf
between Nicaragua and Colombia (Nicaragua v. Colombia); Alleged Violations of Sovereign Rights
and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia); Delimitation in the Caribbean
Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla
Portillos (Costa Rica v. Nicaragua). Yuri Parkhomenko was part of the legal team representing the
Republic of Nicaragua in the following cases: Territorial and Maritime Dispute (Nicaragua v.
Colombia); Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua); Question
of the Delimitation of the Continental Shelf between Nicaragua and Colombia (Nicaragua v.
Colombia); Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia); Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v.
Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua). The
views and opinions expressed in this Chapter are those of the authors and do not necessarily reflect
the views and opinions of the Republic of Nicaragua.
P.S. Reichler • Y.B. Parkhomenko (*) 4
Foley Hoag LLP, International Litigation and Arbitration 3
44 P.S. Reichler and Y.B. Parkhomenko
Department, Washington, DC, USA e-mail:
preichler@foleyhoag.com; yparkhomenko@foleyhoag.com
62962-9_3
Nicaragua v. United States and Matters of Evidence Before the... 45
Contents
1........................................................................................................................................................... Evidenc
e and Fact Finding in the Nicaragua v. United States case................................................................. 44
2...........................................................................................................................................................Nicarag
ua v. United States as Precedent on Matters of Evidence................................................................... 51
3........................................................................................................................................................... Conclus
ions...................................................................................................................................................... 55
References .......................................................................................................................................... 55
v. United States presented the Court with unique and

Nicaragua
challenging evidentiary issues. The ways in which the Court
chose to resolve them were precedent-setting1and have
continued to guide the Court in its treatment and evaluation
of evidence ever since.2This chapter identifies the most critical
evidentiary issues in the case, examines how the Court dealt
with them, and shows that the Court’s approach has been
followed in subsequent cases.
1 Evidence and Fact Finding in the Nicaragua v. United

States case
In bringing its case against the United States, Nicaragua

claimed that the Respondent State had recruited, organized,
armed, trained and directed a paramilitary force—the Contras—
to carry out armed activities in and against Nicaragua for the
purpose of overthrowing its government. Nicaragua further
claimed that United States military and paramilitary forces had
engaged directly in hostile activities inside Nicaragua in
furtherance of this objective. Nicaragua claimed that the
United States, by virtue of such actions, had violated
fundamental rules of general international law prohibiting the
use or threat of force, as reflected in the Charters of the
United Nations and the Organization of American States; and
that the United States had violated Nicaragua's sovereignty,
territorial integrity and political independence.
Nicaragua’s case required the Court to sort through and
make sense of an enormous mass of factual elements, many
of which were vigorously contested by the parties, and were
necessarily complicated by the very nature of the dispute: an
ongoing armed conflict involving both military and
paramilitary forces, often acting in remote territory from
clandestine bases in third countries.3Moreover, as is often 1
See
e.g. Riddell and Plant (2009), p. 187 (observing that ‘the trend for a clearer articulation of evidentiary
assessment [by the ICJ] can be seen as having its roots in the Nicaragua case. [...] Many aspects of the
Court’s general approach to the assessment of evidence [...] were articulated clearly for the first time
in this judgment’).
2
For a discussion of evidence and burden of proof before the
ICJ, see Crawford and Pellet (2008), Rosenne (2006), Vol III, pp.
1039-1048; Kolb (2013), pp. 928-945; Riddell and Plant (2009),
Thirlway (2013), Tomka and Proulx (2015), Amerasinghe (2005),
Highet (1987), Valencia- Ospina (1999).
3
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, ICJ Reports 1986, para 57 (hereinafter ‘Nicaragua v. United States
(Merits)’).
the case in armed conflicts, some of the parties’ most critical
actions (or alleged actions) were conducted, or intended to be
conducted, in secrecy.78This made it especially difficult for the
Court to establish what took place, and even where it could
do so, who was responsible.79The Court’s task was further
complicated by the fact that, as the Court put it, ‘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.’80
78Ibid.
79Ibid. (as the Court explained: ‘Sometimes there is no
question, in the sense that it does not appear to be disputed,
that an act was done, but there are conflicting reports, or a
lack of evidence, as to who did it. The problem is then not the
legal process of imputing the act to a particular State for the
purpose of establishing responsibility, but the prior process of
tracing material proof of the identity of the perpetrator. The
occurrence of the act itself may however have been shrouded
in secrecy. In the latter case, the Court has had to endeavour
first to establish what actually happened, before entering on
the next stage of considering whether the act (if proven) was
imputable to the State to which it has been attributed.’).
80Ibid. According to the Court, the failure of the United States
to appear in the merits phase of the proceedings resulted in
two specific disadvantages: (1) evidence presented by
Nicaragua was not tested by cross examination (although the
To make the necessary findings of fact in these extremely
difficult circumstances, the Court set a series of guidelines for
itself, which proved useful not only in Nicaragua v. United States,
but also in subsequent cases involving disputed and complex
facts.
One of the most important of these guidelines concerned
the probative value of statements by official representatives
of the Parties. Nicaragua’s evidence included numerous public
statements by senior United States officials, including the
President of the United States, cabinet secretaries and
congressional leaders, acknowledging the US role in
recruiting, organizing, financing, arming and training the
Contras to carry out military and paramilitary activities in and
against Nicaragua. Some of these statements were made
before official organs of the United States government, or
before international or regional organizations, and appeared
in the official records of those bodies. Others, made during
press conferences and interviews, were reported by the local
or international press. Nicaragua also presented official or
public statements by its own governmental officials in support
of its allegations. The Court chose to distinguish among
the various statements based on whether they were
Court noted that it subjected those witnesses to ‘extensive

questioning from the bench’), and (2) the United States failed
to present any witnesses of its own. Ibid., para 67.
Nevertheless, the Court acknowledged its need to ‘strike a
balance’ in handling the non-appearance of the United States.
It stated: ‘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... On the other hand, the Court has
to emphasize that the equality of the parties to the dispute
must remain the basic principle for the Court. The intention of
Article 53 was that in a case of non-appearance neither party
should be placed at a disadvantage; therefore the party which
declines to appear cannot be permitted to profit from its
absence, since this would amount to place the party
appearing at a disadvantage.’ Ibid., para 31.
favorable or unfavorable to the State represented by
the declarant. As the Court explained: ‘statements of
this kind, emanating from high-ranking official political
figures, sometimes indeed of the highest rank, are of
particular probative value when they acknowledged
facts or conduct unfavourable to the state represented
by the person who made them. They may then be
construed as a form of admission.’81
By contrast, the Court decided to give little or no weight to
self-serving declarations, statements, or testimony by officials
of either party. The Court explained:
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 [...] [W]hile 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.82
The distinction between admissions and self-serving
statements is well recognized in national jurisdictions,
including the United States, where admissions or other
declarations against interest are treated as exceptions to the
hearsay rule, and often accorded considerable weight as
evidence.83Self-serving public statements are generally
inadmissible, and self-serving testimony, even when not
prohibited by the rule against hearsay, is often found to be
less persuasive. Thus, the Court’s decision to give more
evidentiary weight to admissions made by senior government
officials than to self-serving statements was well founded,
although it had not previously had a chance to consider the
issue before Nicaragua v. United States.
81Ibid., para 64. This guideline was applied to statements made

by, inter alia, President Reagan, US Secretary of State Shultz,
and Nicaraguan President Ortega. See, e.g., ibid., paras 83,
128, 131, 144-151.
82Ibid., para 70.
83See e.g. Lee v. U.S., 343 US 747 (1952).
Apart from relying on admissions by senior government
officials, the Court also gave particular weight to statements
by disinterested witnesses, whom it described as ‘one who is
not a party to the proceedings and stands to gain or lose
nothing from its outcome.’84In evaluating the testimony of
such witnesses, the Court declined to treat 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
[ . . . ] of the existence of such facts, not directly.’ ‘Testimony of
85
this kind,’ the Court explained, ‘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.’86Similarly, the Court declined to give weight to
testimony of matters not within the direct knowledge of the
witness, ‘but known to him only from hearsay.’87The principles
invoked by the Court for the review and evaluation of public
statements and witness testimony, therefore, cannot seriously
be faulted.
In addition to oral statements and testimony, the Court was
also faced with a mass of documentary material from a
variety of sources. Nicaragua relied on United States national
legislation authorizing or appropriating funds for the Contras’
military and paramilitary activities, and on official reports of
the US Congress and executive departments. A large number
of documents were supplied, especially by the United States,
in the form of press articles and extracts from books.88The
Court treated all such non-official materials with caution,
explaining that ‘even if they seem to meet high standards of
objectivity,’ they cannot be ‘regard[ed] [ . . . ] as evidence
capable of proving facts, but as material which can
84 Nicaragua v. United States (Merits), para 69.

0
85 Ibid., para 68.

86Ibid.
87Ibid.
88Ibid., para 62.
nevertheless contribute, in some circumstances, to
corroborating the existence of a fact, i.e., as illustrative
material additional to other sources of evidence.’89The Court
also cautioned against relying on such materials without an
examination of their underlying sources. As it prudently
explained: ‘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.’90Again, as with the
standards it applied to evaluate oral statements and
testimony, the criteria applied by the Court in its evaluation of
documentary materials are difficult to criticize.
There were three main factual disputes to which the Court
applied these standards and criteria for evaluating the
evidence. The first was whether, as Nicaragua had alleged,
the United States had recruited, organized, supplied, trained,
and directed a paramilitary force—the Contras—for the purpose
of carrying out military activities inside Nicaragua against the
government of that country. These were the central elements
of Nicaragua’s claim that the United States had engaged in
the illegal use of force, and had unlawfully intervened in its
internal affairs and violated its sovereignty and territorial
integrity.
The evidence on this issue turned out to be convincing. US
support, and direction of the Contras’ armed activities in and
against Nicaragua were undisputed by the United States, both
in the earlier rounds of the case in which it appeared, and in
its public statements. Indeed, the US administration at the
time repeatedly proclaimed its financial and military support
for the Contras, and whose funds—including funds earmarked
for weapons and ammunition—were expressly authorized by
US legislation enacted openly and in public session. Applying
the guidelines it developed to weigh the oral and
documentary evidence, the Court found that the United
States, at the highest level of government, had admitted the
veracity of Nicaragua’s allegations numerous times in its
89Ibid.
90Ibid., para 63.
national legislation, its statements before the US Congress
and international organizations, its official records, and its
public pronouncements.91This finding supported the Court’s
Judgment holding that the United States had violated its
obligations to Nicaragua under general international law to
refrain from the use or threat of force, and to refrain from
violating its sovereignty, its territorial integrity or its political
independence.
The second contentious factual issue was whether all of the
specific activities of the Contras could be imputed to the United
States, including actions by Contra elements that the Court
characterized as murder and other grave violations of human
rights, such that the United States would be legally
responsible for them. Here, the Court determined as a legal
matter that US responsibility would require a showing of
almost complete dependence of the Contras on the United
States, to the point that they were a de facto organ of the US
government, or that the United States actually exercised
direct control over their day-to-day operations.92Nicaragua
argued that this was not the correct legal standard for
attribution of the Contras ’ activities to the United States, but
this was the standard that the Court applied. Under such a
standard, the Court found that, although the Contras were
heavily dependent on the United States, they were not
completely dependent, and that, while the United States had
overall control over them, it was not proven that this
constituted effective control of the military and paramilitary
operations in the course of which the alleged violations were
committed.93Thus, although US support for the Contras ’ was a
violation of the legal obligations to refrain from the use or
threat of force against Nicaragua, and to refrain from
intervening in Nicaragua’s internal affairs,94the United States
could not be held accountable for each individual action
carried out by them. Given the legal standard applied by the
91Ibid, paras 78, 80, 83, 86, 121, 128, 131.

92Ibid., paras 110, 115.
93Ibid., para 115.
94Ibid., paras 228, 242.
Court, it is difficult to argue that there was sufficient evidence
to meet the standard.
The third of the most significant factual disputes concerned
the United States’ allegation that Nicaragua was engaged in
supplying arms to guerrillas in El Salvador, which provoked
the United States to support the Contras to force Nicaragua to
change its policy.95The United States argued on this basis that
its support for armed activities in and against Nicaragua was
thus a justified means of ‘collective self defense’ of El
Salvador.
The Court ruled against the United States both on legal and
factual grounds. As a legal matter, the Court found that even
if it had been proven—quod non—that Nicaragua were supplying
arms to El Salvadoran guerrillas, this would not in itself
constitute an ‘armed attack’ under general rules of
international law sufficient to justify the use of force against
Nicaragua in alleged ‘collective self-defense’.96The Court also
found lacking several other elements, necessary under
general
95Ibid., paras 126-127.

96Ibid., para 230 (stating that ‘[e]ven at a time when the arms
flow was at its peak, and against assuming the participation
of the Nicaraguan government, that would not constitute an
armed attack’).
international law, for the United States to invoke ‘collective self-
defense’ as a justification for its support for armed activities in
and against Nicaragua.97
More to the point of this Chapter, however, the Court found
that the ‘evidence’ introduced by the United States failed to
establish that Nicaragua was supplying arms to Salvadoran
guerrillas in the months preceding the US decision to organize
and support the Contras, or at any time thereafter.
It is never easy for a party to prove a negative, i.e. that it
was not doing what has been alleged—in this case, that it was
not supplying arms to Salvadoran guerrillas during any
relevant period. Nevertheless, Nicaragua met this challenge.
It produced a witness at the oral hearings who had served as
an intelligence analyst for the CIA, and whose principal duty
was to analyze all of the US intelligence relating to alleged
Nicaraguan arms transfers to El Salvador. The CIA witness
testified that, although the most sophisticated intelligence
techniques and equipment were employed, and it was an
extremely high priority for the US government to catch
Nicaragua in the act, no evidence was obtained, at any time
prior to or during the case, of any Nicaraguan arms shipments
to El Salvador. The witness testified that, if there had been any
such arms trafficking, it would not have escaped detection by
the United States.98This testimony was supported, in the
Court’s view, by the failure of the United States or anyone
else to physically intercept, or produce evidence of, any actual
shipment of arms by the government of Nicaragua, which
would have had to cross the territories of both Honduras and
El Salvador.
As the Court observed:
if this evidence really existed, the United States could be
97Ibid., paras 195, 199.
98Ibid., para 134 (‘[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
Ibid., para
so’).
26
57.
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 [...] If, on
the other hand, this evidence does not exist, that [...]
implies that the arms traffic is so insignificant and casual
that it escapes detection even by the sophisticated
techniques employed for the purpose, and that, a fortiori, it
could also have been carried on unbeknown to the
Government of Nicaragua, as that Government claims.
The two conclusions mutually support each other. 99
The manner in which the United States presented its
evidence purporting to show Nicaraguan shipments did not
prove helpful to the Court. As the Court itself pointed out, its
task was made more difficult by virtue of the United States’
decision not to appear for the merits phase.26Notwithstanding
its formal abstention from the proceeding, while the oral
hearings were in progress, the US Embassy in The Hague
forwarded to the Court a lengthy document prepared by the
State Department. The document, which bore the not-so-
subtle title, Revolution beyond our Border,
99Ibid., para 156.

contended that Nicaragua
Sandinista Intervention in Central America,
supplied a substantial and steady flow of arms to guerrillas in El
Salvador.
Nicaragua pointed out to the Court that the submission of
the document in the middle of oral hearings was both highly
prejudicial and inconsistent with the Court’s rules, and should
have been disregarded. There is little doubt that, in a normal
case in which both parties appear, the Court would not have
allowed one of them to spring such a document on the other
at the oral hearings. However, mindful of its obligation under
Article 53 of the Statute to satisfy itself, in the absence of the
Respondent State, that the claims of the Applicant are well
founded in fact and law, the Court decided to take the State
Department document into account ‘in view of the special
circumstances of this case.’27This was an indication of the
Court’s determination to objectively and impartially determine
the facts. At the end, the US document—a collection of self-
serving statements by US government officials, newspaper
reports, and other unsupported allegations accusing
Nicaragua of supplying arms to the Salvadoran guerrillas—
failed to prove allegations about Nicaragua’s supplies of arms
to guerrillas to El Salvador.
Only one judge disagreed. Judge Schwebel, of the United
States, criticized the Court’s fact-finding because it did not
accept the conclusions of the State Department’s mid-
hearings submission in regard to Nicaragua’s alleged shipment
of arms to in Salvador.28Significantly, not a single other judge
joined in this dissent, or expressed disagreement with the
Court’s fact-finding on this issue, or found any other support
in the record for the US attempt to justify its actions against
Nicaragua on grounds of collective self-defense. This seems
to be sensible. The most reliable evidence before the Court on
this issue was the testimony of the CIA analyst who had
responsibility for determining whether Nicaragua was shipping
arms to El Salvador, had access to the relevant US
intelligence, and concluded that there were no such
shipments during the relevant period. Whether viewed as an
admission on behalf of the United States, or the testimony of
a disinterested third party witness, the Court was plainly
justified in relying on this testimony—couple with the absence
of what it regarded as credible testimony or other evidence to
the contrary.
In sum, the Court’s approach to the evidence in the Nicaragua
case was exemplary.29It established the correct rules for
evaluating oral and written
21
28
para 73.
Ibid.,
Dissenting Opinion of Judge Schwebel in Nicaragua v. United States
(Merits), para 12. 29Highet (1987) (observing that ‘the Nicaragua
case will probably be recalled... as representing at least the
following new developments: a decisive and controversial
victory of a small power over a great power; an
unprecedented withdrawal from proceedings, to the
subsequent regret of the withdrawing party; one of the first
considerations by the Court of armed conflict, and surely the
first when that conflict, to one degree or another, was
continuing; the pronouncement of a controversial precedent
on the use of force, intervention and the right of collective
self-defense in response to armed attack; and, for the first
time, treatment by the Court of such a complex set of facts
presented as foundation for a decision, and moreover, their
substantially unilateral treatment, in the absence of the
defending party, and with the Court itself operating as a
“coun-ter-advocate” under the strictures and requirements of
Article 53’).
evidence in general, and it properly applied those rules to the
particular facts of the case. Of course, it is not uncommon for
winning parties and their counsel to applaud the work of the
Court; nor is it unusual for losing parties to find fault, as some
in Washington have done.100While there has been
considerable academic and other neutral commentary on the
Judgment, this has, for the most part, focused on the legal
issues decided by the Court, and the political implications of
upholding the legal rights of a small State against a Great
Power. By contrast, there has been comparatively little written
about the evidence presented in the case and the Court’s
treatment of it.101Perhaps that is because some scholars are
more comfortable talking about law rather than facts, and
practitioners rarely write about their cases. In any event, it
100Schwebel (2012), pp. 102-105.

101Highet (1987), Riddell and Plant (2009), pp. 187-189.
seems perfectly clear that, by any objective account, in
Nicaragua v. United States the Court performed its difficult task of
establishing the rules, evaluating the evidence and reaching
its conclusions on the facts extremely well.
The Court itself seems to be satisfied with the approach it
took in Nicaragua v. United States to matters of evidence and fact-
finding. As shown below, it has chosen to follow a similar
approach in subsequent cases.
2 Nicaragua v. United States as Precedent on

Matters of Evidence
Since Nicaragua v. United States, a number of cases have provided

the Court with the opportunity to test the approach it adopted
in that case.102
First, the Court has continued to give particular weight to
statements against interest by representatives of States and
to statements by disinterested witnesses.103In DRC v. Uganda,
for example, the Court determined that ‘statements against
interest’ made by ‘senior military officers’ were of ‘particular
probative value’ to establish that armed attacks were carried
out in certain geographic areas.104In contrast, the Court
treated with great reserve self-serving declarations by govern-
ment officials, especially those prepared in the context of
litigation involving armed conflict.105It thus gave no probative
value to affidavits from high-ranking military officials in DRC v.
Uganda because they were self-serving and prepared in antic-
ipation of litigation.106
102See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, ICJ Reports 2005, p. 168 (hereinafter ‘DRC v. Uganda (Judgment)’); Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro), Merits, Judgment, ICJ Reports 2007, p. 43 (hereinafter ‘Bosnia v. Serbia
(Merits)’); Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, ICJ Reports 2015, p. 3 (hereinafter ‘Croatia v. Serbia (Merits)’).
103DRC v. Uganda (Judgment), para 61; Croatia v. Serbia (Merits), para
197.
104DRC v. Uganda (Judgment), para 78.
105Ibid., para 65; Bosnia v. Serbia (Merits), para 213.
106DRC v. Uganda (Judgment), para 65. For the decisions of
other international courts adopting the same approach, see e.g.
Second, the Court further reiterated that press reports are
not to be treated as evidence to prove particular facts,
although they may serve as useful context to corroborate
facts established by other evidence.107In Croatia v. Serbia, for
example, Croatia relied on a documentary film produced by a
Serbian television channel, in which individuals offered first-
hand accounts of mass killings. The Court took into account
the Serbian television documentary because it corroborated
the existence of a fact established by other sources of
evidence.108By contrast, when Croatia cited a publication
describing tortures of Croats by Serbian forces, the Court
observed that such a publication ‘can only constitute
secondary evidence and can only be used to corroborate facts
established by other evidence.’109The Court ruled that it was
‘therefore unable to find solely on the basis of this publication’
El-Masri v. the Former Yugoslav Republic of Macedonia, Grand Chamber, ECHR

Application No. 39630/09, Judgment, 13 December 2012,
para 163; Chiragov and Others v. Armenia, Grand Chamber, ECHR
Application No. 13216/05, Judgment, 16 June 2015, para 177
(The ECtHR, citing to Nicaragua v. United States, stated that it ‘will, in
principle, treat with caution statements given by government
ministers or other high officials, since they would tend to be
in favour of the government that they represent or
represented. However, statements from high-ranking officials,
even former ministers and officials, who have played a central
role in the dispute in question are of particular evidentiary
value when they acknowledge facts or conduct that place the
authorities in an unfavourable light. They may then be
construed as a form of admission’).
107 DRC v. Uganda (Judgment), para 68; Croatia v. Serbia (Merits),
31
para 239.
108Croatia v. Serbia (Merits), para 344. See also SGS Societe Generale de
Surveillance S.A. v. Republic of the Philippines, ICSID Case No. ARB/02/6,
Order of the Tribunal on Further Proceedings, 17 December
2007, para 17 (citing the Nicaragua case when stating that ‘an
isolated press report’ can ‘ only be treated as background
information and not at all as proof of its contents’).
10939Ibid.
that alleged acts of torture were committed.110
The same approach was followed in DRC v. Uganda, where
the Court accorded no evidentiary weight to extracts from
newspapers and magazine articles that the DRC submitted in
support of its contentions, because some materials quoted
only a single source, others relied on an interested source,
and yet others cited no sources at all.111Those journalistic
accounts, as the Court further pointed out, also ‘were not
wholly consistent and concordant as to the main facts and
circumstances of the
110Ibid.
11141Nearly identical situation was also before the ICJ in the
Oil Platforms case. There, the United States contended that Iran
attacked a tanker, submitting as evidence several public
sources that blamed Iran for the attack. The Court, citing to
Nicaragua v. United States, gave to those materials no probative value
because they had ‘no indication of what was the original
source, or sources, or evidence’ on which those public sources
relied. Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment,
ICJ Reports 2003, p. 161, para 60 (hereinafter ‘Oil Platforms (Merits)’).
case.’42However, the Court found reliable reports prepared by
official or independent bodies, such as the Report of the
Porter Commission, which contained ‘evidence obtained by
examination of persons directly involved, and who were
subsequently cross-examined by judges skilled in examination
and experienced in assessing large amounts of factual
information.’43The Court also relied on a report on human
rights violations in the Ituri region prepared by the UN Mission
in the DRC (MONUC) and reports by the Special Rapporteur of
the UN Commission on Human rights because they were ‘the
result of careful fieldwork carried out by MONUC experts, and
attested to by other independent sources.’44
In Nicaragua v. Honduras, which concerned a territorial and
maritime dispute, the Court had to determine the probative
value of written statements by Honduran fishermen that
Honduras brought to support its claim of a tacit agreement
between the two States. The Court reaffirmed that ‘witness
statements produced in the form of affidavits should be
treated with caution’ and then summarized factors, first
articulated in Nicaragua v. United States, that must be taken into
account in assessing this category of evidence:
These [factors] would include whether [affidavits] were
made by State officials or by private persons not
interested in the outcome of the proceedings and
whether a particular affidavit attests to the existence of
facts or represents only an opinion as regards certain
events. The Court notes that in some cases evidence
which is contemporaneous with the period concerned
may be of special value. Affidavits sworn later by a State
official for purposes of litigation as to earlier facts will
carry less weight than affidavits sworn at the time when
the relevant facts occurred.
In other circumstances, where there would have been no
reason for private persons to offer testimony earlier,
affidavits prepared even for the purposes of litigation will
be scrutinized by the Court both to see whether what has
been testified to has been influenced by those taking the
deposition and for the utility of what is said. Thus, the
Court will not find it inappropriate as such to receive
affidavits produced for the purposes of a litigation if they
DRC v. Uganda (Judgment), para 182. The Court clarified that it

44
42
DRC v. Uganda (Judgment), para 68.
took
43
Ibid., into
paraconsideration
61. In the Genocide cases, the Court similarly observed
evidencefact-finding
that the contained inprocess
certainofUnited
the ICTY falls documents
Nations within the ‘ to
the extent that they are of probative
value and are corroborated, if necessary, by other credible
sources.’ Ibid., para 205.
Nicaraguav. United Statesand Matters of Evidence Before the... 61
category of ‘evidence obtained by examination of persons
directly involved,’ tested by cross-examination, the credibility
of which has not been challenged subsequently. The Court
thus relied on documentation arising from the ICTY’s
processes, including indictments by the Prosecutor. Croatia v.
Serbia (Merits), paras 182, 469 (stating that the Court ‘should in
principle accept as highly persuasive relevant findings of facts
made by the Tribunal at trial, unless of course they have been
upset on appeal. That should lead the Court, in the present
case, to give the greatest weight to factual findings by the
Trial Chamber which were not reversed by the Appeals
Chamber. ’ As regards the probative value of the ICTY
Prosecutor’s decisions not to include a charge of genocide in
an indictment, the Court stated that ‘as a general proposition
the inclusion of charges in an indictment cannot be given
weight. What may however be significant is the decision of
the Prosecutor, either initially or in an amendment to an
indictment, not to include or to exclude a charge of genocide.’
Croatia v. Serbia (Merits), para 184, citing Bosnia v. Serbia (Merits),
para 217.
50
paras 82-83, 114. See also Bangladesh/Myanmar (Judgment), paras
Ibid.,
114, 115 (ITLOS gave
no probative value to ‘the affidavits from the naval officers, ’
observing that ‘they are from officials
who may have an interest in the outcome of the proceedings’).
attest to personal knowledge of facts by a particular
individual. The Court will also take into account a
witness’s capacity to attest to certain facts, for example,
a statement of a competent governmental official with
regard to the boundary lines may have greater weight
than sworn statements of a private person.112
The Court examined the affidavits of the Honduran
fishermen and found that none of them could be considered
as proof of the existence of a tacit agreement, because their
statements were in the nature of personal opinions rather
than knowledge of facts.113In support of this finding, the Court
cited back to Nicaragua v. United States, where, likewise, it refused
to treat as evidence any testimony which was not a statement
of facts known directly by the witness, but a mere expression
of opinion as to the probability of the existence of
facts.114Testimony of this kind, the Court reaffirmed, ‘cannot
112Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, ICJ Reports 2007, pp. 731-732, para 244 (hereinafter ‘Nicaragua
v. Honduras (Judgment)’).
113Nicaragua v. Honduras (Judgment), para 245. For the same
reason, in the Oil Platforms case the Court also decided not to rely
on the witness testimony of a Kuwaiti military officer, which
was submitted by the United States to prove its contention
that Iran had attacked a tanker. As the Court explained, that
testimony ‘was given ten years after the reported events; and
the officer does not state that he observed the launch of the
missile (and the alleged firing point was too remote for this to
have been possible), nor that he saw the missile strike the
[tanker], but merely that he saw a missile passing
“overhead”, and that that vessel was struck by a missile
“minutes later”’) Oil Platforms (Merits), p. 161, para 58.
114 Ibid. In Bangladesh/Myanmar, the International Tribunal for the
41
Law of the Sea followed the same approach in regard to

affidavits from fishermen, concluding that they did ‘not
constitute evidence as to the existence of an agreed boundary
in the territorial sea,’ because they ‘merely represent[ed] the
opinions of private individuals regarding certain events’ Dispute
concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of
ITLOS Judgment, 14 March 2012, paras
Bengal (Bangladesh/Myanmar),
113, 115 (hereinafter ‘Bangladesh/Myanmar (Judgment)’).
take the place of evidence’ because 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 in
determining a question of fact, but is not proof in itself.’ 115
The approach the Court adopted in Nicaragua v. United States
was visible in two recent: Certain Activities carried out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica
along the San Juan River (Nicaragua v. Cosa Rica). Presented with
affidavits of policemen and military agents attesting to the
existence of a navigable channel of the San Juan River, the
Court reiterated that affidavits should be ‘treated with
caution, in particular those made by State officials for
purposes of litigation.’116Noting that those affidavits
115 paras
Ibid.,Ibid.
50 , citing
82-83,to Nicaragua v. United
114. See alsoStates , para 68. (Judgment), paras
Bangladesh/Myanmar
116Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
114, 115of(ITLOS
Construction gaveRica along the San Juan River (Nicaragua v. Costa Rica), Merits,
a Road in Costa
no probative valueparas
Judgment, ICJ Reports 2015, to 82-83.
‘the affidavits from the naval officers, ’
‘were prepared after the institution of proceedings’, the Court
declined to give them evidentiary value.50
3 Conclusions
Decided 30 years ago, Nicaragua v. United States maintains its

seminal importance in regard, above all, to the unlawfulness
of the use or threat of force under international law, and on
the illegality of interfering with the sovereignty, political
independence or territorial integrity of another State. The
same rules of general international law, the Court affirmed,
are applicable to all States, regardless of size or military or
economic prowess.
Academic commentary thus far has given less attention to
the case’s significance in terms of establishing the basis of the
Court’s approach to fact-finding and evaluation of evidence,
especially in complex factual situations. But Nicaragua v. United
States is also a landmark case in this terrain. The guidelines the
Court developed and applied on how to treat and evaluate
evidence became—and still are—a model for its approach to
matters of evidence in subsequent cases. The Judgment of 26
June 1986 is as relevant today as it was 30 years ago.
References
Amerasinghe CF (2005) Evidence in international litigation.
Brill/Nijhoff, Leiden
Crawford J, Pellet A (2008) Anglo Saxon and continental
approaches to pleading before the ICJ. In: Buffard I,
Crawford J, Pellet A, Wittich S (eds) International law
between universalism and fragmentation. Brill/Nijhoff,
Leiden
Highet K (1987) Evidence, the court, and the Nicaragua case.
AJIL 81(1):1-56
Kolb R (2013) The international court of justice. Hart, Oxford
Riddell A, Plant B (2009) Evidence before the international
court of justice. British Institute of International and
Comparative Law, London
Rosenne S (2006) The law and practice of the international
court 1920-2005, vol III. Martinus Nijhoff, Leiden
Schwebel SM (2012) Celebrating a fraud on the court. AJIL
106(1):102
Thirlway H (2013) The law and procedure of the international
court of justice: fifty years of jurisprudence. Oxford
University Press, Oxford
Tomka HEP, Proulx V-J (2015) The evidentiary practice of the
world court. In: Juan Carlos Sainz- Borgo (ed) Liber
Amicorum Gudmundur Eiriksson. University for Peace Press,
San Jose, 2016, Forthcoming in 2017. Available at SSRN:
https://ssrn.com/abstract=2693558
Valencia-Ospina E (1999) Evidence before the international
court of justice. International Law Forum du droit
international 1(4)
Paul S. Reichler, Partner and Chair of International Litigation and
Arbitration Department at Foley Hoag LLP.
Yuri B. Parkhomenko, International
duspute resolution lawyer at
International Litigation and Arbitration Department at Foley
Hoag LLP. The views and opinions expressed in this article are
those of the authors and do not necessarily reflect the views
and opinions of Foley Hoag LLP. The authors are also grateful
to their colleagues at Foley Hoag—L.H. Martin, A.B.
Loewenstein, and R. Gerome—for their valuable comments
and contribution.
50
paras 82-83, 114. See also Bangladesh/Myanmar (Judgment), paras
Ibid.,
114, 115 (ITLOS gave
no probative value to ‘the affidavits from the naval officers, ’
Part III
The Nicaraguan Sagas Before the
International Court of Justice (Overviews)
The Nicaragua v. United States Case: An Overview of
the Epochal Judgments
Fernando Lusa Bordin
Abstract Military and Paramilitary Activities in and Against Nicaragua

(Nicaragua v. United States of America) is easily one of the most
recognisable, important and debated cases in the history of
the International Court of Justice. Its enduring impact is felt
not only in numerous references made to it in later cases and
in the work of the International Law Commission, but also in
classrooms all over the world, where it still remains a vital
resource for the teaching of the sources of international law,
State responsibility, the use of force and international dispute
settlement. This Chapter discusses the main points, the
legacy and the aftermath of the Court’s judgments on
jurisdiction and the merits, setting the stage for the
substantive analyses in subsequent chapters.
Contents
1 Introduction...................................................................................................................................... 59
2 Jurisdictional Controversies............................................................................................................. 62
2.1 Rulings on Jurisdiction and Admissibility in the 1984 and 1986 Judgments..................... 62
2.2 The 1984 Judgment’s Legacy.............................................................................................. 67
3 The Merits of the ‘Big Case’........................................................................................................... 71
3.1 An Overview of the 1986 Judgment.................................................................................... 71
3.2.................................................................................................................................................. The
1986 Judgment’s Legacy.............................................................................................................. 76
4 The Aftermath of the 1986 Judgment.............................................................................................. 79
4.1.................................................................................................................................................. Reparat
ion Proceedings and Attempts of Enforcement ........................................................................... 79
4.2.................................................................................................................................................. The
Cases against Costa Rica and Honduras....................................................................................... 80
5 Concluding Remarks ...................................................................................................................... 82
References .......................................................................................................................................... 82
1 Introduction
In 1979 the Somoza government—the dictatorship that had

ruled in Nicaragua since the 1930s—was overthrown by the
left-wing Sandinista National Liberation Front, giving rise to a5
9
60 F.L. Bordin
series of events that shaped the politics of Central America
F.L. Bordin (*)

Faculty of Law and Lauterpacht Centre for
International Law, Sidney Sussex College, University of
Cambridge, Cambridge, UK e-mail: fl290@cam.ac.uk
E. Sobenes Obregon, B. Samson (eds.), Nicaragua Before the
International Court of Justice, DOI 10.1007/978-3-319-62962-9_4
throughout the following decade. On the one hand, the
Sandinista regime lent support to revolutionary movements in
Nicaragua’s neighbouring countries—El Salvador, Honduras
and Costa Rica—to the chagrin of the governments in power.
On the other hand, Nicaragua’s neighbours supported the
contras, an ensemble of right-wing rebel groups whose goal
was to bring down the newly installed Sandinista government.
And, of course, a crucial variable in this equation was the
Reagan administration in the United States of America, which,
following a long-standing tradition of interventionism in Latin
America,1antagonised the Sandinista government by providing
assistance to El Salvador, Honduras, Costa Rica and the contras
themselves.2
The Somoza government had been close to the United
States, from which it received aid and support while avoiding
any pointed criticism of the political oppression reigning in
Nicaragua. This relationship changed a bit during Jimmy
Carter’s presidency in the second half of the 1970s, as
Carter’s human rights- oriented foreign policy ‘stimulated the
growing opposition against the Somoza regime’. 3Though
international support played a role in enabling the change of
regime in Nicaragua, the fact that the Marxist wing of the
SNFL came to dominate the new government caused the
United States to shift its stance from qualified support to
opposition, especially when Ronald Reagan entered office in
1981. Financial aid to and support for the Sandinista regime
was conditioned upon assurances that Nicaragua would
refrain from aiding the insurgency movements in
neighbouring States; halt its increasing militarisation; be more
moderate in its relations with the socialist world; and take
steps towards allowing for greater internal political
opposition.4This resulted in a clash between Nicaragua and
The Nicaragua v. United States Case: An Overview of the Epochal
Judgments 61
the United States, leading to the latter’s financing, with
congressional approval, of a guerrilla force designed to
prevent the supply of arms by Nicaragua to rebel forces in El
Salvador, and to all the subsequent US involvement in military
and paramilitary actions in Nicaragua. Confronted with the
active opposition of a superpower, Nicaragua launched a
diplomatic campaign to discredit the United States, hoping in
particular to quash congressional support for President
Reagan’s foreign policy, which was already precarious. A key
element of Nicaragua’s strategy to isolate the United States
diplomatically and improve its negotiating position was to
bring a claim before the International Court of Justice. 5
!
2
For a provocative account, see Livingstone (2013).
For a thorough discussion of the underlying premises behind
Nicaragua’s application to the Court, see Gill ( 1989), pp. 128-
140.
3
Ibid,127.
4
Ibid,p. 131.
5
Ibid.,pp. 134-137. As Gill notes, this was a win-win situation
for Nicaragua insofar as the Court provided a forum in which
US action would be almost certainly criticised without allowing
for much room for the United States to vent the political and
security concerns that animated its interventions in Nicaragua.
Raising global awareness of the situation would have paid off
even if the Court had declined jurisdiction to decide on the
merits of the dispute.
It was against this factual backdrop that the International
Court gave its landmark judgments in Military and Paramilitary
Activities in and Against Nicaragua, easily one of the most
recognisable, important and debated cases in the history of
the principal judicial organ of the United Nations and its
predecessor.6Although this was not the first time that
Nicaragua appeared before the Court,7and despite the
frequency with which Nicaragua has done so ever since, there
is no question as to which is ‘the’ Nicaragua case. The enduring
impact of the Nicaragua case is felt in the numerous references
to it in subsequent judgments and in the work of the
International Law Commission.8Likewise, it remains a staple of
any undergraduate course on international law: while these
days lecturers may find it difficult to squeeze classic cases
such as Corfu Channel and South West Africa in evergrowing
62 F.L. Bordin
syllabuses, Nicaragua still plays a leading role in the teaching of
the sources of international law, State responsibility, the use
of force and international dispute settlement.
This Chapter outlines and assesses the main points and the
legacy of the International Court’s judgments of 26 November
1984 on jurisdiction and admissibility (the ‘1984
Judgment’)9and of 27 June 1986 on the merits (the ‘1986
Judgment’),10setting the stage for the substantive analyses in
subsequent chapters.11It also provides a brief discussion of the
proceedings that Nicaragua instituted against Honduras and
Costa Rica, relating to the same factual matrix, in the
aftermath of the 1986 Judgment.
6
The number of academic works discussing the Nicaragua v. United
States case is immense. A good introductory overview is
provided by James Crawford’s entry in the Max Planck Encyclopedia of
International Law (2012). For topical discussions and assessments of
the repercussions and legacy of the 1984 and 1986
Judgments, compare the contributions published in volumes
79 and 81 of the American Journal of International Law in 1985 and 1987,
respectively, with those published in volume 25 of the Leiden
Journal of International Law in 2012.
7
That was in the Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v.
Nicaragua), Judgment, ICJ Reports 1960, p. 192.
8
For example, the Commentary to the 2001 Articles on the
Responsibility of States for Internationally Wrongful Acts
contains 16 references to the Nicaragua case: YbILC 2001, Vol. II,
Part Two.
9
America), Preliminary Objections, Judgment, ICJ Reports 1984, p. 392 (hereinafter ‘Nicaragua v.
United States (Jurisdiction)').
10
America), Merits, Judgment, ICJ Reports 1986, p. 14 (hereinafter ‘Nicaragua v. United States
(Merits)’).
n
The Nicaragua case comprises also two relevant orders issued by
the Court: the Order of 10 May 1984 awarding provisional
measures and the Order of 4 October 1984 rejecting El
Salvador’s request to intervene under Article 63 of the ICJ
Statute in the jurisdictional phase of the case. Those orders
are discussed in the chapters on provisional measures and
interventions in this book.
Judgments
2 Jurisdictional Controversies
63
2.1 Rulings on Jurisdiction and Admissibility in the

1984 and 1986 Judgments
On 9 April 1984, Nicaragua instituted proceedings against the

United States before the International Court to complain
about a series of military activities carried out by persons
linked to the US Government—including the mining of
Nicaraguan ports, attacks against oil installations and
trespasses into Nicaraguan airspace—and the United States’
involvement in the actions of the contras to overthrow the
Sandinista regime.117Nicaragua’s Application pointed to two
bases for the Court’s competence to settle the dispute: the
declarations that both parties had made accepting the
compulsory jurisdiction of the Court under the Optional Clause
(Article 36(2) of the ICJ Statute), and the compromissory
clause in the 1956 US-Nicaragua Treaty of Friendship,
Commerce and Navigation.
2.1.1 Objections to the Court’s Jurisdiction Under the Optional Clause
The United States challenged the jurisdiction of the Court and

the admissibility of Nicaragua’s claims. As regards the Court’s
jurisdiction under the Optional Clause, it advanced three main
arguments. The first was that Nicaragua’s acceptance of the
compulsory jurisdiction of the Court was invalid. Nicaragua
had made a declaration accepting the compulsory jurisdiction
of the Permanent Court of International Justice back on 24
September 1929, and in instituting proceedings against the
United States it relied on the rule in Article 36(5) of the ICJ
Statute,118which provides for the transfer of declarations in
117Cf the full list of submissions in Nicaragua v. United States of America

(Merits), supra n. 10, pp. 18-20, paras 15-16.
118Article 36(5) reads as follows: ‘Declarations made under
Article 36 of the Statute of the Permanent Court of
International Justice and which are still in force shall be
deemed, as between the parties to the present Statute, to be
acceptances of the compulsory jurisdiction of the
64 F.L. Bordin
force from the old Court to the new Court. The problem,
however, was that Nicaragua had never become a party to
the PCIJ Statute. Even though it sent a telegram to the
Secretary-General of the League of Nations informing him
that the internal proceedings for the ratification of the PCIJ
Statute had been completed, Nicaragua never followed that
through by sending to the League the corresponding
instrument of ratification. Because Nicaragua never became a
party to the PCIJ Statute, the United States argued that its
declaration had never come into force so as to be validly
transferred to the new Court in accordance with Article 36(5).
The Court dismissed the United States’ first objection on
the grounds that the Nicaraguan declaration, which had been
made for an indefinite period, ‘had a certain potential effect
which could be maintained indefinitely’.119The Court construed
the rule in Article 36(5) of the ICJ Statute as covering not only
declarations ‘still in force’ which had become effective under
the PCIJ Statute, but all declarations ‘still in force’ in the sense
of not having lapsed. In support of this interpretation, the
Court referred to:
(i) the French version of Article 36(5), which instead of the
phrase ‘still in force’ employs the phrase ‘pour une duree
qui n’est pas encore expiree’ (‘for a duration which has
not yet expired’), a language which it found consistent
with the notion that Article 36(5) does not require that
any given declaration have taken effect under the PCIJ
Statute;
(ii) the intention of the drafters of the Statute to ‘maintain the
greatest possible continuity’120between the Permanent
Court and the International Court ‘ by creating a general
system of devolution’121that would encompass even decla-
rations that had not acquired binding force under the PCIJ
Statute; ‘[n]o doubt’, said the Court, ‘the intention to wipe
out the progress evidenced by a declaration such as that
International Court of Justice for the period which they still

have to run and in accordance with their terms.’
119Nicaragua v. United States (Jurisdiction), supra n. 9, p. 404, para 27.
120Ibid., p. 407, para 32.
121Ibid., p. 408, para 35.
Judgments 65
of Nicaragua would certainly not square well with their
general concern;’122
(iii) the subsequent conduct of States and international
organizations as demonstrated by the reactions (or lack
thereof) to a series of ICJ Yearbooks and Reports
submitted by the Court to the UN General Assembly which
listed Nicaragua as a State accepting the compulsory
jurisdiction of the Court; while recognising that those
‘official publications’ could not as such remedy the
deficiencies of the Nicaraguan declaration, the Court saw
the lack of objections to the listings—which were ‘entirely
official and public, and extremely numerous, and ranged
over a period of nearly 40 years’123—as corroboration that
Article 36(5) of the ICJ Statute applied to the unusual
circumstances of Nicaragua.124
In connection with point (iii), the Court made an additional
finding supporting its conclusion that Nicaragua could rely on
the Optional Clause to bring the case against the United
States. It noted that Nicaragua was in a ‘wholly unique’ situa-
tion125and placed in an ‘exceptional position’126insofar as ‘the
international organs empowered to handle [declarations
under the Optional Clause]’ had declared in their lists that the
formality of depositing a declaration of acceptance of the
compulsory jurisdiction of the Court had been accomplished
by Nicaragua.127Because this could not be ‘without effect on
the requirements obtaining as regards the formalities that are
indispensable for the consent of a State to [the Court’s]
compulsory jurisdiction to have been validly given’, the Court
concluded that Nicaragua’s ‘constant acquiescence [to the
effect that it was bound by its 1929 declaration] constitute[d]
a valid mode of manifestation of its intent to recognize the
compulsory jurisdiction of the Court’ under the Optional
Clause.128
122 Ibid., pp. 407-408, para 34.
11
123Ibid., p. 409, para 38.

124Ibid., p. 411, para 42.
125Ibid., p. 412, para 46.
126Ibid., pp. 412-413, para 47.
127Ibid.
128Ibid.
66 F.L. Bordin
Secondly, the United States claimed that the Court lacked
jurisdiction under the Optional Clause because, three days
before the case was filed, it had validly modified its own
declaration with a view to excluding from the purview of the
Court any disputes with Central American States for a period
of two years (a course of action taken for the purpose of pre-
empting Nicaragua’s forthcoming Application). This argument
faced an obstacle: the US declaration specifically provided
that a notice of termination would only take effect after the
expiry of a 6-month period. The United States argued,
however, that (1) the notice period did not apply to
modifications of the declaration (as opposed to its
termination) and, in any event, that (2) it could rely by
reciprocity on the absence of a time period for termination in
the Nicaraguan declaration; if Nicaragua was entitled to
modify/terminate its own declaration without notice and with
immediate effects, so should the United States be.
The Court disagreed that it made any difference, for the
purpose of application of the time period, whether the United
States was seeking to change or terminate its
declaration.129As regards reciprocity, the Court rejected the
United States’ claims on two grounds. It firstly explained that
the notion of reciprocity was only ‘concerned with the scope
and substance of the commitments entered into, including
reservations, and not with the formal conditions of their
creation, duration or extinction’.130Accordingly, the United
States remained bound by the unilateral undertaking that it
freely chose to make to give a 6-month notice before
termination of or changes to its declaration take effect.
Secondly, the Court added that even if reciprocity did apply to
formal conditions of creation, duration or extinction,
reciprocity would not have provided a way out for the United
States because Nicaragua was not entitled to terminate its
declaration with immediate effects. Rather, by analogy with
the law of treaties, ‘a reasonable time for withdrawal of
termination’ was required in cases in which a declaration
accepting the compulsory jurisdiction of the Court is made for
129Ibid., pp. 417-418, para 58.
130Ibid., p. 419, para 62.
Judgments 67
an indefinite period with no specific provisions on
termination.131
131Ibid., pp. 419-420, para 63.

Judgments 68
Thirdly, the United States sought to rely on the reservation,
which it had validly attached to its own declaration, excluding
from the purview of the Court ‘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’.27The argument was that (a) the dispute between
the United States and Nicaragua arose under the rules on the
use of force and non-intervention laid down in the Charter of
the United Nations and the Charter of the Organization of
American States, and (b) a decision by the Court would affect
El Salvador, Costa Rica and Honduras, which were not parties
to the case. In its 1984 Judgment, the Court concluded that
this objection did not possess an ‘exclusively preliminary
character’ because the Court was not, at that stage of the
proceedings, in a position to determine whether Nicaragua’s
neighbours would be affected by its decision.28It accordingly
deferred its ruling on this preliminary jurisdictional issue to
the merits phase of the case. Ultimately, in its 1986 Judgment
the Court came to the conclusion that the reservation was
applicable, for it had become clear that a ruling on the right
of the United States to use force in collective self-defence
would affect the States for the benefit of which the United
States claimed to be taking action, in particular El
Salvador.29However, the Court found that the multilateral
treaty reservation did not deprive it of jurisdiction to entertain
claims by Nicaragua based on customary international
law,30even those concerning rules that overlapped with those
of the multilateral treaties which the United States purported
to exclude.31That was because ‘the operation of the treaty
process [did not] necessarily deprive the customary norm of
its separate applicability’. In the words of the Court,
‘customary international law continues to exist and to apply,
separately from international treaty law, even where the two
categories of law have an identical content’.32As a result, the
Court asserted jurisdiction over Nicaragua’s claims relating to
use of force and intervention by the United States insofar as
they constituted potential breaches of international custom.
Judgments
2.1.2 Objections to the Court’s Jurisdiction Under the 1956 Treaty 69
The second basis for the jurisdiction of the Court cited in the
Nicaraguan Application instituting proceedings was the
compromissory clause in the 1956 Treaty. The United States
disagreed that that compromissory clause expressed consent
to the Court’s jurisdiction. It contended that the complex
dispute between the parties (involving matters of use of force
and intervention) did not concern the application
21
Ibid., pp. 421-422, para 67.
28
Ibid., pp. 425-426, para 76.
29
Nicaragua v. United States (Merits), supra n. 10, p.
38, para 56. 30Ibid.
31
Ibid., pp. 93-94, para 175.
32
Ibid., p. 96, para 179.
and interpretation of a (narrow) bilateral treaty on friendship,
commerce and navigation. Furthermore, the United States
claimed that Nicaragua had not shown that the dispute arising
under the treaty had not been ‘satisfactorily adjusted by
diplomacy’, a procedural requirement imposed by the
compromissory clause. The Court rejected both arguments.
On the one hand, it noted that provisions in the 1956 Treaty
referring to freedom of commerce and navigation and peace
and friendship were potentially applicable to some of the
events compouding the dispute, which meant that the parties
clearly shared opposing views as to the interpretation and
application of the treaty. On the other hand, the Court noted
that a State is not debarred from invoking a compromissory
clause in a treaty just because provisions of that treaty had
not been ‘expressly referred in negotiations’ by the
parties.132‘It would make no sense’, the Court added, ‘to
require Nicaragua now to institute fresh proceedings based on
the Treaty, which [Nicaragua] would be fully entitled to do’. 133
2.1.3 Objections Concerning the Admissibility of Nicaragua’s Claims
Finally, the 1984 Judgment contains relevant findings on the

admissibility
42
See e.g. theofcontemporaneous
claims. The United States by
debates invited the Court to
American
scholars published
132Nicaragua in (1985)
v. United States AJIL 79, supra
(Jurisdiction), supra n. 9, pp. 428-429, para
83.6.
n.
133Ibid.
70 F.L. Bordin
refrain from deciding the merits of the case on the grounds
(1) of the indispensable third parties doctrine articulated in
the Monetary Gold case, given that El Salvador, Costa Rica and
Honduras were all States the rights and obligations of which
would be the subject-matter of a ruling on the dispute
between the USA and Nicaragua; (2) that matters relating to
the use of armed force should be left for the UN Security
Council, with which ‘primary responsibility’ for such matters is
vested under Article 24 of the UN Charter;
(3) that it would be improper for the Court to pronounce on
an ongoing exercise of self-defence on which the Security
Council chose not to act (due to US veto);
(4) the ‘inability of the judicial function to deal with situations
involving ongoing conflict’; and (5) the impropriety of
interfering with the multilateral process of dispute settlement
that the Central American had put in motion to restore peace
in the region (the ‘Contadora process’).134While noting that
there was ‘no trace, either in the Statute or in the practice of
international tribunals, of an “indispensable parties” rule of
the kind argued for by the United States’,135the Court gave a
robust rebuff to the arguments concerning the institutional
and substantive limitations of the Court in dealing with
(ongoing) armed conflict. The Court emphasised that its role,
complementary to that of the Security Council, is to uphold
‘such submissions of the Parties as have been supported by
sufficient proof of relevant facts, and are
134Ibid., pp. 436-437, para 99.

135Ibid., p. 431, para 88.
Judgments
regarded by the Court as sound in law’.37Likewise, the Court 71
was unpersuaded that the existence of the Contadora process
constituted an obstacle for it exercising jurisdiction. 38
2.2 The 1984 Judgment’s Legacy
The dramatic events following the rendering of the 1984

Judgment are well known. The United States refused to
participate in the merits phase of the case, considering the
Court’s ruling ‘clearly and manifestly erroneous as to both fact
and law’.39An explanation provided by the State Department
stressed, in biting terms, the Court’s perceived lack of
impartiality:
The Court’s decision is a marked departure from its past,
cautious approach to jurisdictional questions. The haste
with which the Court proceeded to a judgment on these
issues [...] only adds to the impression that the Court is
determined to find in favor of Nicaragua in this case [...]
We have seen in the United Nations, in the last decade or
more, how international organizations have become more
and more politicized against the interests of the Western
democracies. It would be a tragedy if these trends were
to infect the International Court of Justice. We hope this
will not happen, because a politicized Court would mean
the end of the Court as a serious, respected institution.
Such a result would do grievous harm to the goal of the
rule of law.40
The United States’ reaction culminated with a notice of

termination of its declaration accepting compulsory
jurisdiction of the Court on 7 October 1985.41Given the
support that the United States had traditionally given to the
Court, its withdrawal from the Optional Clause System was a
cause for much regret and concern. Contemporaneous
reviews of the judgment were mixed, with some com-
mentators praising the Court’s reasoning (or at least
describing it as plausible) and others joining the United States
in its scorn.42
Most of the findings made by the Court have been the
subject of scrutiny and criticism, whether in the individual
opinions
42
See e.g.ofthe
thecontemporaneous
judges or in academic
debatescommentary.
by AmericanAs to the
attempt by
scholars the United
published StatesAJIL
in (1985) to change
79, supra its declaration a few
n. 6.
72 F.L. Bordin
days 37
Ibid., pp. 437-438, para 101. The full analysis of the Court can be found in Nicaragua v.
United States (Jurisdiction), supra n. 9, pp. 431-438, paras 89-101 and in Nicaragua v. United States
(Merits), supra n. 10, pp. 26-28, paras 32-35.
38
Nicaragua v. United States (Jurisdiction), supra n. 9, pp. 438-441, paras
102-108. 39Correspondence relating to the Nicaragua v. United States
case, Letter of 18 January 1985, at 408, available on
http://www.icj-cij.org/docket/files/70/9635.pdf. Accessed 10
May 2016. 40Department of State File No. P85 0009-2151,
reproduced in (1985) AJIL 79:438. 41Correspondence relating to
the Nicaragua v. United States case, Letter of 7 October 1985, at 422,
available on http://www.icj-cij.org/docket/files/70/9635.pdf.
Accessed 10 May 1986.
Judgments 73
before Nicaragua’s application, it has been suggested that
State practice on the Optional Clause militated in favour of
recognising the United States’ right to make a change with
immediate effects.43As regards the Court’s handling of the
compromissory clause under the 1956 Treaty, discordant
voices criticised the relaxed approach that the Court took to
the procedural requirement that it be shown that the dispute
had not been ‘satisfactorily adjusted by diplomacy’, 44and its
conclusion that the clause encompassed a dispute with no
real connection with the subject-matter of the treaty. 45Those
are criticisms which have not aged well over the past 30
years. It is unsurprising that the Court declined to
compromise the integrity of the Optional Clause System by
reference to a regrettable trend in State practice, and
subsequent cases in which the Court has dealt with
compromissory clauses do not cast Nicaragua in a negative
light.46
There are, however, two points of criticism which resonate
to this day, and which make it difficult for an impartial
observer to subscribe fully to the Court’s ruling on jurisdiction.
First, the majority’s conclusion that the Nicaraguan declara-
tion, which was never in force under the old Statute, could
somehow come to life under the new Statute attracted the
powerful dissent of five judges and remains as puzzling today
as it seemed to contemporaneous commentators.47In Judge
Ago’s words, ‘for any “continuity” of effects [under Article
36(5)] to be possible, there had to have been, in relation to
the former Court, some acceptances productive of such
effects’, for the ‘plane of strict identify is forsaken when an
old declaration is credited with effects in relation to the new
Statute which it never possessed in relation to the previous
one’.48Or, as James Crawford puts it: ‘Nicaragua kissed the
frog but it kissed the wrong one. The magic worked
regardless.’49The Court’s reliance on the lists printed on ICJ
Yearbooks and Reports to the UN General Assembly is also
problematic. Judge Jennings persuasively pointed to the
42
See e.g.ofthe
‘element contemporaneous
absurdity’ in the fact debates
that suchbya American
contentious
scholars published in (1985) AJIL 79, supra
n. 6.
74 F.L. Bordin
question, subject to extensive 43
See e.g. Nicaragua v. United States (Jurisdiction),
supra
44 n. 9, Separate Opinion of Judge Jennings, pp. 550-553.
In particular, ibid., Separate Opinion of Judge Ruda, pp. 452-
454,
45
paras 2-10.
See ibid., Dissenting Opinion of Judge Schwebel, pp. 630-637,
paras 120-129, and the critical comments by Kirgis ( 1985), pp.
655-657.
46
Indeed, the controversially formalistic judgment in the Georgia
v. Russia case, marking the first time the Court has ever denied
jurisdiction on the grounds that the negotiations requirement
in a compromissory clause had not been fulfilled, has been
compared unfavourably to Nicaragua: see e.g. Damrosh ( 2012),
p.
47
144 and Crawford (2012b), LJIL, pp. 477-478.
Even Alain Pellet, who argued for Nicaragua, has said in a
recent reappraisal that he ‘was always very sceptical about the
validity
48
of the declaration of Nicaragua’: Pellet ( 2012), p. 485.
Nicaragua v. United States (Jurisdiction), supra n. 9, Separate Opinion of
Judge Ago, pp. 524-525, para 24.
49
Crawford (2012b), LJIL, p. 473.
Judgments 75
argument by the parties, was deemed ‘virtually settled as a
result of the action of the Registrar acting on behalf of the Court
in its administrative capacity’.136
That said, as Thomas Franck put it at the time, whether or
not one agrees with the strong teleological approach which
the Court took in construing Article 36(5) of the ICJ Statute,
‘it would be hard for a fair-minded reader of the majority’s
reasoned opinion to conclude that this result could not be
reached by a dedicated and impartial judge’.137And perhaps
the big picture, which is easy to ignore when one embarks on
detailed discussions of procedural matters, has something to
say in favour of the Court’s approach. As Frederic Kirgis said
at the time, ‘only those committed to legal technicalities
would take serious offense at an equation that starts with a
properly filed (but inchoate) declaration, adds a properly
ratified ICJ Statute and comes out with a declaration in
force’.138Be that as it may, the fact that the Court’s finding
concerns a unique situation, since there are no States in a
comparable position to that of Nicaragua, means that it has
little potential to create a dangerous precedent. 139
A second point of criticism that remains strong three
136Nicaragua v. United States (Jurisdiction), supra n. 9, Separate Opinion
of Judge Jennings, p. 540.
13751Franck (1985), p. 382. Franck adds: ‘it would have been
more surprising if the Court had refused to take jurisdiction
on the basis of Nicaragua’s technical failure, in 1939, to follow
up its telegraphed notice of ratification with an actual delivery
of the instrument, particularly, since, after 1945, separate
ratification of the new Court’s constitutive instrument became
unnecessary, it being subsumed in ratification of the UN
Charter by operation of Article 93’. For a largely positive
assessment, cf Kolb (2013), p. 761: ‘This interpretation is
certainly not self-evident’ but neither is it ‘a departure from
legalism, but a teleological interpretation [...] shared by a
large majority of judges [which] corresponded to the
intentions
4
of the
Nicaragua v. United Statesdrafters ofsupra
(Merits), then.Statute’.
10, Dissenting Opinion
13852Cf Kirgis (1985), p. 652.
of Judge Oda,
139Ibid.
pp. 217-218, paras 10-13; see also the Dissenting
Opinion of Judge Jennings, pp. 533-534.
76 F.L. Bordin
decades later concerns the finding that the reservation
purporting to exclude certain disputes arising under
multilateral treaties from the Court’s jurisdiction did not affect
the Court’s competence to apply customary international law.
The Court’s slippery-slope was described by Judge Oda in the
following passage:
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 different from the other issue - which relates to the
Court’s jurisdiction - of whether a State’s declaration
excludes “disputes arising under multilateral treat[ies]”
[...] from “the jurisdiction of the Court” [...] The
reference to multilateral treaties [in the US reservation] is
merely a means of drawing the boundaries of jurisdiction
so as to exclude certain disputes: there is no justification
for supposing that a dispute “arising under” a multilateral
treaty can nevertheless be brought under the Court’s
authority because (inevitably) it can also be analysed in
terms of general international law. 54
Judgments 77
Indeed, there is an inescapable artificiality in the Court
viewing a reservation which purported to limit jurisdiction as
regards a particular category of disputes as an applicable law
clause. The dispute between the United States and Nicaragua
in most of its aspects arose under the applicable rules in the
UN and OAS Charters, and the fact that customary law may
continue to exist on the side does not change the fact that
the United States had expressed its desire, as it was entitled
to do, to exclude disputes arising under those treaties from
the purview of the Court.140Furthermore, the Court’s
treatment of custom does not do full justice to the intricacy of
the relationship between the sources of international law.
That customary international law may continue to exist and
apply alongside treaty law does not mean that it can be applied
in lieu of valid treaty law. Within the bounds set by peremptory
norms of international law, States are free to establish by
treaty special rules replicating, refining or deviating from
custom. While custom has a role to play in construing a treaty
or filling the gaps left by its provisions,141it cannot strictly
speaking govern the relations between the parties so long as
the lex specialis remains in force.142In Nicaragua, there was no
question that it was the UN Charter and the OAS Charter—not
customary international law—which contained the rules on the
use of force and non-intervention applicable between the
United States and Nicaragua. It is telling that the Court’s
approach can only work in situations in which custom is in
accordance with the applicable treaty rules—otherwise, how
can the Court rely on custom without disregarding the actual
140See the compelling analysis in Crawford (2012b), pp. 475-477.
141As pointed out by the ILC in its Conclusions of the Work of
the Study Group on the Fragmentation of International Law,
YbILC 2006, Vol. II, Part Two, p. 178, Conclusion 9. That is why
the Court’s reference to the customary requirements of
necessity and proportionality for the exercise of self-defence,
which fill gaps in the law of the Charter, is unproblematic:
Nicaragua v. United States (Merits), supra n. 10, p. 94, para 176.
142Conclusions of the Work of the Study Group on the
Fragmentation of International Law, YbILC 2006, Vol. II, Part Two,
p. 178, Conclusion 5.
78 F.L. Bordin
rights and obligations of the parties?143
Ultimately, it is difficult to avoid the impression that the
Court went too far—for better or worse—in asserting
jurisdiction over those aspects of the dispute between the
United States and Nicaragua that went beyond the
interpretation and application of the 1956 Treaty. But it
should be said that despite all the commotion that happened
in Washington DC the world of judicial dispute settlement did
not crumble in the aftermath of the Court’s rulings on
jurisdiction. As Lori Damrosh notes in a recent reappraisal,
Nicaragua did not have a significant impact on the proportion of
States making declarations under the Optional Clause (even if
it made some States more alert to the particular drafting of
their declarations), and the Court’s assertive approach is
taken as a factor explaining the remarkable increase in
disputes brought before the Court in the 1990s and the first
decade of the twenty- first century.144Damrosh suggests,
however, that there may be a correlation between Nicaragua
143The Court was at pains to deal with this point at

paragraphs 180-181 of its 1986 Judgment, pointing simply
that the ‘differences which may exist between the specific
content [of the applicable treaty and customary rules] are
not... such as to cause a judgment confined to the field of
customary international law to be ineffective or inappropriate,
or a judgment not susceptible of compliance of execution’. As
Judge Jennings noted in his dissent, ‘[i]t seems [...] eccentric,
if not perverse, to attempt to determine the central issues of
the present case, after having first abstracted these principal
elements of the law applicable to the case [i.e. the relevant
multilateral treaties], and which still obligate both the Parties’
(Nicaragua v. United States (Merits), supra n. 10, p. 533). In fairness to
the Court, the multilateral treaty reservation contained in the
US declaration was notoriously problematic, uncertain in
scope and difficult to apply, so much that Judges Ni and
Setter-Camara would have preferred the Court to disregard it
altogether. See Briggs (1985), p. 378.
144Damrosh (2012), pp. 137-142. See also the detailed analysis
up to the year 2003 in Gray (2003), pp. 885-888.
Judgments 79
and the comparatively lower rate in which States have
included or accepted compromissory clauses in bilateral and
multilateral treaties in the past few decades.145146
3 The Merits of the ‘Big Case’
3.1 An Overview of the 1986 Judgment
The judgment given by the International Court in 1986 on the

merits of the dispute between Nicaragua and the United
States is a document sprawling with factual and legal findings,
only rivalled in its reach and scope by advisory options such
as Legality of the Threat or Use of Nuclear Weapons and Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory .61Following a
discussion of preliminary points (outstanding jurisdiction and
admissibility issues and use of evidence), the judgment is
divided in three main parts. The first part (paragraphs 75-
171) establishes the relevant facts and considers whether or
not they were attributable to the parties. The second part
(paragraphs 172-225) describes in detail the rules and
principles of customary international law applicable to the
dispute, as well as relevant provisions of the 1956 Treaty. The
third part (paragraphs 226-283) applies the law to the
established facts coming to conclusions as to the existence or
otherwise of internationally wrongful acts. The judgment is
then wrapped up by a short section on reparation
(paragraphs 283-291) and a dispositif (para 292) containing 16
clauses. This is why, though the judgment is well structured,
those skimming it over to look for bits and pieces may find it
somewhat user-unfriendly—to get the full picture on any
given ruling one needs to retrieve the relevant excerpts from
the three main parts.
In a nutshell, Nicaragua claimed that the military and
paramilitary activities in which the United States had been
involved amounted to breaches of the prohibition on the use
of force, the principle of non-intervention, the freedom of the
145Damrosh (2012), pp. 139-140.
146Available at ICJ Reports 1996, p. 247 and ICJ Reports 2004, p. 200, respectively.
80 F.L. Bordin
high seas, international humanitarian law and the 1956
Treaty. A crucial factual-legal determination that the Court
had to make to address whether these claims were well
founded was whether the conduct of the contras was
attributable to the United States. The Court had had little
trouble to attribute to the United States the mining of
Nicaraguan ports; a number of attacks against oil facilities in
Nicaragua147; unauthorised overflights in Nicaraguan
airspace148; and military manoeuvres on the border between
Nicaragua and Honduras.149But it rested ultimately
unconvinced that the acts of the contras towards overthrowing
the Sandinista Government could be generally imputed to the
United States. For one, the Court was not persuaded that the
United States had created the contra force or 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’.150Instead, the Court concluded that while the
United States ‘largely financed, trained, equipped, armed and
organized’ the paramilitary group,151that was not sufficient for
attribution of conduct under international law because the
contras could neither be seen as an organ of the United States
(they were not in a relationship of ‘complete dependence’
with the US Government)152nor as a entities conducting
operations over which the United States exercised ‘effective
control’.153The Court thus found: ‘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-à-vis
Nicaragua, including conduct related to the acts of the contras’
154
147Nicaragua v. United States (Merits), supra n. 10, p. 48, para 80 and pp.
50-51, para 86.
148Ibid., pp. 52-53, para 91.
149Ibid., pp. 53-54, para 92.
150Ibid., pp. 61-62, paras 106-108.
151Ibid., pp. 61-62, para 108.
152 Ibid., pp. 62-63, paras 109-110.
61
153Ibid., pp. 64-65, paras 115-116.

154Ibid., p. 65, para 116. The Court did, however, attribute to the
United States certain acts carried out by contras groups in which
Judgments 81
This finding on attribution having been clarified, Nicaragua’
s two main claims can be outlined. The first concerned alleged
breaches by the United States of the prohibition on the use of
force. Given its finding that it could not apply the UN and the
OAS Charters, the Court had first to establish that the
prohibition was well established under customary international
law. It came to an affirmative conclusion by applying the
methodology for the identification of custom developed in
earlier cases, that is, by considering State practice and opinio
juris in the field of the use of force. As regards State practice,
the Court noted that it was not to be ‘expected that in the
practice of States the applications of the rules in question
should have been perfect’. Rather, it sufficed that the
‘conduct of States should, in general, be consistent with such
rules, and that instances of State conduct inconsistent with a
given rule should generally have been treated as breaches of
that rule, not as indications of the recognition of a new
rule’.155As regards opinio juris, the Court noted that the
conviction of States that refraining from using force was
required by the law could be deduced from ‘the attitude of
States towards certain General Assembly resolutions’, the
Friendly Relations Declaration71in particular, as well as other relevant
instruments such as the Helsinki Final Act.72Having found the
prohibition on force to be well established in custom, the
Court concluded that the mining of Nicaraguan ports, the
attacks against oil installations and the training and arming
(but not the financing) of the contras by the United States all
constituted breaches of that customary rule.73
But the Court did not reach this conclusion without first
considering the US Government’s argument that its military
operations and support for paramilitary operations constituted
a lawful exercise of collective self-defence. Before with-
drawing from the proceedings, the United States had argued
that Nicaragua had been providing support to revolutionary
movements in El Salvador and carrying out military incursions
the United States had been directly involved.
155 Ibid., p. 98, para 186. The Court did not discuss any specific
10
instances of State practice involving the use of force.

82 F.L. Bordin
by Nicaragua into the territory of Honduras and Costa Rica.
The Court found the US allegations to be proven to a point
(noting, in particular, that Nicaraguan support of the armed
opposition in El Salvador was only established up to the
beginning of 1981).74The question was then whether those
actions attributable to Nicaragua gave rise to the right of
collective self-defence for the United States on behalf of the
three Central American States.
The Court had no difficulty establishing the customary
status of the right to selfdefence (which, as it noted, is
described as an ‘inherent right’/‘droit naturel’ in Article 51 of the
UN Charter) when an armed attack occurs.75But the Court
thought it important to ‘distinguish the most grave forms of
the use of force (those constituting an armed attack) from
other less grave forms’ for which self-defence would not be
available.76While it recognised that the ‘sending by or on
behalf of a State or armed bands, groups, irregulars or
mercenaries’ could constitute an armed attack, it noted that
that would only be so 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’.77Furthermore, and
crucially given the facts of the case, the Court concluded that
mere ‘assistance to rebels in the form of the provision of
weapons or logical or other support’ did not constitute an
armed attack, even though it could amount to one of those
‘less grave forms’ of threat or use of force.78The Court
accordingly concluded that the support UNGA Res. 2625 (XXV), 71
‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation

among States in accordance with the Charter of the United Nations’, 24 October 1970.
72
Conference on Security and Co-operation in Europe
(Helsinki, 1 August 1975); Nicaragua v. United States (Merits), pp. 99-
101, paras 188-190.
Ibid., p. 123, para 238.
73
Ibid., pp. 82-83, paras 152-153 and p. 87, para 164.

74
Ibid., pp. 102-103, para 193.

75
Ibid, pp. 101-102, para 191.

76
Ibid., pp. 103-104, para 195.

77
78
Ibid.
given by Nicaragua to revolutionary movements in El Salvador
did not trigger a right of collective self-defence for the United
Judgments 83
States.79
The Court was less categorical when it came to analysing
the border incidents involving Costa Rica and Honduras. It
considered it ‘difficult’ on the basis of the evidence available
to decide whether Nicaraguan action had been sufficiently
grave to amount, ‘singly or collectively’, to an armed
attack.80But it disposed of the issue in another way, explaining
that to ascertain whether an exercise of collective selfdefence
is lawful it had to take into account the existence of (1) a
declaration by the State against which force is used that is
has been the victim of an armed attack156and (2) a request for
assistance from the victim State to the State exercising
collective self-defence.157Costa Rica, Honduras and El Salvador
had neither declared themselves as victims of an armed
attack by Nicaragua nor had they made a request of collective
self-defence to the United States, two considerations pointing
to the conclusion that the use of force by the United States
had been unlawful.
That conclusion was corroborated by two additional
arguments. First, the United States had not reported its use of
force in and against Nicaragua to the Security Council as
required by Article 51 of the Charter; that omission on the
part of the United States, the Court thought, ‘hardly
[conformed] with the latter’s avowed conviction that it was
acting in the context of collective self-defence’.158Second,
even if collective self-defence had been permissible in the
circumstances, the United States would have still acted
unlawfully by failing to comply with the customary
requirements of necessity and proportionality. That was due
to the long time-gap between the alleged armed attacks and
the relevant military response and to the magnitude of that
military response (including attacks on ports and oil
installations which could hardly be considered
proportionate).159
156 Ibid., pp. 107-108, para 205.

157 Ibid., p. 124, para 241.
88
89
158 Ibid.
15990Ibid., p. 126, para 245.
84 F.L. Bordin
The second main claim that Nicaragua made concerned the
United States’ intervention in Nicaragua’s internal and
external affairs. Like it did with the prohibition on the use of
force, the Court first of all satisfied itself that the principle of
non-intervention—which it also described as a ‘corollary of the
principle of the sovereign equality of States’160—was well
established in custom. It referred to ‘substantial practice’
backing up the principle, and explained away instances of
deviations from that practice on the grounds that ‘States
[had] not justified their conduct by reference to a new right of
intervention or a new exception to the principle of its
prohibition’.161According to the Court, the principle prohibits
States from using ‘methods of coercion’—including military
action or support for
19
Ibid.., p. 119, para 230.
80
Ibid., pp. 119-120, para 231.
81
Ibid., pp. 103-104, para 195.
82
Ibid., p. 105, para 199.
83
Ibid., pp. 121-122, para 235.
84
Ibid, pp. 122-123, para 237.
85
Ibid., pp. 106-107, para 202.
86
Ibid., pp. 106-107, paras 202
and p. 108, para 206.
‘subversive or terrorist armed activities within another State’—
to intervene in ‘matters in which each State is permitted, by
the principle of State sovereignty, to decide freely’—including
‘the choice of a political, economic, social and cultural system,
and the formulation of foreign policy’.81 * * * * * 162On the facts, the
Court concluded that the United States’ support of the contras,
groups whose aim was to overthrow the Nicaraguan
Government, constituted an unlawful intervention in
Nicaragua’s internal affairs.163That conclusion obtained, the
Court added, whether or not the United States intended to
160 Ibid, p. 127, para 249.

91
161 92
Ibid., p. 128, para 251. Seethe discussion on the relevant customary
rules, p. 111, paras 212-213.
16293Ibid., p. 129, para 254. See the discussion on the relevant customary
rules, pp. 111-112, para
163214.
Judgments 85
effect regime change in Nicaragua.164In contrast, the Court
rejected Nicaragua’s contention that the taking of ‘measures
of economic constraint’ by the United States also amounted to
a breach of the principle of non-intervention.165
Considering potential defences of which the United States
could avail itself, the Court did not think that American
intervention could be excused or justified on the basis of any
circumstances precluding the wrongfulness of an
internationally wrongful act. It noted that uses of force falling
beneath the threshold of ‘armed attack’ could give rise to
‘proportionate counter-measures on the part of the State
which had been the victim of these acts’, but not ‘counter-
measures taken by a third State’ and particularly ‘intervention
involving the use of force’.166
The remaining claims brought by Nicaragua can be
described more briefly. The Court found that the United
States violated Nicaragua’s territorial sovereignty by mining
Nicaraguan ports and trespassing into Nicaragua’s aerial
space without authorisation92; that the mining of the ports
constituted a violation of Nicaragua’s freedom of
communications and of maritime commerce93; that by
publishing and disseminating a manual on ‘Psychological
Operations in Guerrilla Warfare’ to the contras the United States
breached its obligation not to encourage violations of
customary rules of international humanitarian law reflected in
Article 3, common to the four 1949 Geneva Conventions 94;
and that by declaring a general trade embargo on Nicaragua
the United States breached its duty not to deprive the 1956
Treaty from its object and purpose95as well as Article IX of
that agreement (comprising obligations relating to freedom of
commerce and navigation). In connection with the latter
finding, the Court decided that the United States could not
rely on Article XXI of the 1956 Treaty, a saving clause
excluding from the scope of the treaty measures ‘necessary’
to protect ‘the essential security interests’ of one of the
164 94
pp. 129-130, para 255. See the discussion on the relevant
Ibid.,
customary rules, pp. 112-115,
165paras 216-220.
166 Ibid., p. 138, para 276.
95
86 F.L. Bordin
parties. That was because neither the trade embargo nor
other actions affecting freedom of commerce and navigation
could be regarded as ‘necessary’ measures.167168169170171
3.2 The 1986 Judgment’s Legacy
In contrast to the more polemic 1984 Judgment, the

judgment on the merits in the Nicaragua case is generally
perceived as one of the crowning achievements of the
International Court of Justice.97Its treatment of a number of
core issues in international law has certainly been very
influential. As subsequent chapters book offers in-depth
analyses of this case’s contributions to various international
legal subfields, I highlight here the main findings on the
sources of international law, the law on the use of force and
non-intervention and the law of State responsibility in the
1986 Judgment’s and some of the main points of contention.
167Ibid., pp. 141-142, para 282.
168Introducing a symposium marking the 25th anniversary of
the 1986 Judgment, Hoss, Villalpando and Sivakumaran
pointed out that ‘ [t]he Nicaragua case is considered to be the
leading case of the International Court of Justice... and ranks
amongst the most important cases decided in the past
century’; Hoss et al. (2012), p. 133. It is still referred by many
as ‘the big case’: Pellet (2012), p. 482.
169North Sea Continental Shelf, Federal Republic of Germany ¡Denmark; Federal Republic of
Germany/Netherlands), Judgment, ICJ Reports 1969, p. 3.
170In Lotus, the PCIJ stated that the lack of examples of
prosecution the crew of foreign ships could at best ‘show that
States had often, in practice, abstained from instituting
criminal proceedings, and not that they recognized
themselves as being obliged to do so; for only if such
abstention were based on their being conscious of having a
duty to abstain would it be possible to speak of an
international custom’ (“Lotus", Judgment, 1927, PCIJ Series A, No. 10, p. 28).
171See Report of the International Law Commission on the work
of its 68 session (2016), UN Doc. A/71/10, p. 96 (Draft
Conclusion 8) and p. 99 (Draft Conclusion 10(2)).
Judgments 87
As regards sources, the 1986 Judgment joins North Sea
Continental Shelf98as a leading case not only on the relationship
between treaty and custom but also on the methodology to
identify customary rules. While North Sea explained that treaties
may declare pre-existing custom, crystallise emerging
customary rules or contribute to the formation of new
custom, Nicaragua elucidates the manner in which custom and
treaty—general international law and lex specialis—can coexist at
any given time in our decentralised international legal system.
Nicaragua also offers a way out of the knot that one sees in
cases such as Lotus, when it comes to proving customary
prohibitions in international law,99by pointing to the role of
normative resolutions adopted under international
organizations as evidence of opinio juris, the proof of which can
otherwise bear on the impossible. These two methodological
insights from the judgment have been taken up by the ILC in
its current work on the identification of customary
international law.100
As regards the law on the use force and non-intervention,
the 1986 Judgment remains the Court’s leading case on the
subject-matter and makes a number of relevant findings.
First, it confirms the customary status of the general
prohibition on the unilateral use of force, the right to self-
defence (individual or collective) and the principle of non-
intervention—findings which, if not particularly controversial,
were not self-evident. Second, it was the first judgment by
the Court to engage with the concept of ‘armed attack’ and to
suggest that there is a gravity/magnitude threshold to be
crossed before force can be used in self-defence. The
threshold is left unspecified, though the judgment clarifies
that ‘mere frontier incidents’ and the provision of arms to
rebels will not cross it. The concept of armed attack in
Nicaragua has proved influential in the subsequent case law of
the Court—including the Oil Platforms and Armed Activities cases—as
well as in the activities of other international forums. 172Third,
the Court elaborated not only on the general customary
requirements for the exercise of the right to self-defence
172See Yusuf (2012).
88 F.L. Bordin
(necessity and proportionality) but also on the specific
conditions for recourse to collective selfdefence, highlighting
that the conduct of the victim State is crucial to assessing the
legality of the use of force by third States. Fourth, Nicaragua
remains the only ICJ judgment to have dealt in some depth
with the principle of non-intervention.173The 1986 Judgment
provides guidance as to the form that intervention must take
to be unlawful (‘methods of coercion’) and the scope of the
freedoms protected by the principle (matters on which
sovereign States are free to decide, including ‘the choice of a
political, economic, social and cultural system, and the
formulation of foreign policy’).
As regards State responsibility, the 1986 Judgment is well
known for dealing with challenging questions of attribution of
conduct of persons or a groups of persons to the State. It
fleshes out the test of ‘effective control’ over particular actions
and omissions as the controlling test for the application of the
rule now contained in Article 8 of the 2001 Articles on the
Responsibility of States for Internationally Wrongful
Acts.174The test was subsequently endorsed and applied by
the Court in Bosnian Genocide, where the Court disagreed with a
criticism levelled at Nicaragua by the International Criminal
Tribunal for the Former Yugoslavia in the Tadic case. In its
judgment of November 1999, the ICTY suggested that in
situations in which individuals make up ‘an organised and
hierarchically structured group, such as a military unit or [ . . . ]
armed bands of irregulars or rebels’, the ‘overall control’ by
these States over the group suffices for the purposes of
attribution.175In Bosnian Genocide, the International Court retorted
17302The discussion of the principle in the Armed Activities was rather brief (Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005,
pp. 226-227, paras 162-164).
174Article 8 reads: ‘The conduct of a person or group of
persons shall be considered an act of a State under
international law if the person or group of persons is in fact
acting on the instructions of, or under the direction or control
of, that State in carrying out the conduct’ (YbILC 2001, Vol. II,
Part Two, p. 47).
175Prosecutor v. Dusko Tadic, ICTY Case No. IT-94-1-A, Judgment, 15
Judgments 89
by saying that the ‘overall control’ test ‘stretches too far,
almost to breaking point, the connection which must exist
between the conduct of a State’s organs and its international
responsibility’ and instead rehabilitated the ‘effective control’
test from Nicaragua.176
However well regarded the 1986 Judgment may be, as a
robust exercise in judicial reasoning under difficult
circumstances it raises as many questions as it answers, and
has attracted over time its share of detractors. Almost every
substantial finding has been dissected and many potential
faults with the majority’s reasoning have been exposed. It has
been suggested, for example, that:
(a) in identifying the applicable customary rules the Court has
downplayed the importance of State practice and
overstated the role of resolutions of international
organizations as evidence of opinio juris177;
(b) that by setting the threshold for the occurrence of an
armed attack too high, the Court has encroached upon the
right to self-defence and created an unjustifiable and
dangerous asymmetry, requiring the victims of ‘less grave’
uses of force to suffer the blow without being able to
defend themselves properly178; it should be noted, in this
July 1999, para 120.
176105'Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Reports 2007, p.
210, para 406; for a critical assessment of this decision, see
Cassese (2007). This was not, of course, the only contribution
that Nicaragua has made to the law of State responsibility. As
noted by Paddeu, the approach taken by the Court in Nicaragua
and subsequent cases on self-defence as a circumstance
precluding wrongfulness has greatly influenced the approach
taken by the ILC in drafting Article 21 of the Articles on State
Responsibility (Paddeu (2015)).
177106Criticizing the Court’s handling of the sources of
international law, D’Amato referred to the judgment as a ‘failure
of legal scholarship’ (D’Amato (1987), p. 105).
178107Franck (1987), p. 120: ‘The consequence of this
substantive rule appears to be that fire may be fought with
fire. It is a proposition that leaves victimized states little
90 F.L. Bordin
regard, that the Court recognised the possibility for the
victim of a forcible measure—though not third parties—to
take ‘proportionate counter-measures’,179but it is not clear
whether those may involve the use of force;
(c) that its approach to the additional requirements for
collective self-defence was unconvincing and formalistic180;
(d) that its treatment of non-intervention and affirmation of an
unfettered right for States to choose their ‘political,
economic, social and cultural system’ do not take sufficient
account of—and indeed put in jeopardy—progress
achieved in the field of human rights.181
Finally, looming large over the 1986 Judgment is the charge
that the Court was ill-equipped to establish the facts correctly.
The charge is nowhere as evident as in Judge Schwebel’s
dissent, which contains a lengthy ‘Factual Appendix’ challeng-
ing most of the majority’s factual findings—and, most
crucially, those relating to Nicaragua’s actions against El
Salvador, Costa Rica and Honduras which substantiated the
United States’ claim of collective self-defence.182The Court’s
difficulty in dealing with what was undoubtedly a very
complex factual scenario was exacerbated by the refusal of
the United States to participate in the merits phase of the
proceedings, as various individual opinions and academic
contributions noted.183Even though it is impossible to assess
how deficient the analysis of the Court of the facts has been
without going back to the evidence considered (and evidence
that has become available ever since), it seems that on
balance the 1986 Judgment has stood the test of time in the
sense that its key findings have never been seriously
option but to confine countermeasures to their own territory’.
See also the discussion in Yusuf (2012), pp. 465-466
(suggesting an alternative interpretation) and in Gray ( 2008),
pp. 171-183.
179Nicaragua v. United States (Merits), supra n. 10, p. 127, para 249.
180109Ibid., Dissenting Opinion of Judge Jennings, pp. 544-546.
181110See Teson (1987), p. 173.
182For a balanced analysis of the challenges faced by the Court, see
Highet (1987).
183See, in particular, Nicaragua v. United States (Merits), supra n. 10,
Dissenting Opinion of Judge Jennings, p. 528.
Judgments 184 91
challenged. The question of the Court’s capacity to handle
factually complex cases remains—as it should—a live issue.
4 The Aftermath of the 1986 Judgment
4.1 Reparation Proceedings and Attempts of Enforcement
In the 1986 Judgment, the Court decided to reserve the

question of reparation for the breaches of international law
attributable to the United States for a subsequent phase of
the proceedings, refusing to accede to a request by Nicaragua
that an ‘interim award’ of $370,200,000 be made. 185Nicaragua
then filed a memorial on reparation claiming several billion US
dollars in damages.186Continuing to refuse to participate in the
proceedings, the United States did not file a counter-
memorial.
The story took a turn when the Sandinistas lost the
elections in 1990 and Violeta Chamorro became the new
president of Nicaragua. Reversing the policy of its
predecessor, the new government of Nicaragua sought a re-
approximation with the United States, securing from newly-
elected President Bush the promise of a generous aid
package.187The path was thus open for a settlement of the
Nicaragua
case. Nicaragua informed the Court that it wished to
184Judge Schwebel’s account of the facts, it should be added,

was received with skepticism by some contemporaneous
commentators: cf Briggs (1987) and, more bitingly, Falk (1987),
p. 111 (‘[i]ronically, but helpfully, Judge Schwebel’s dissent
reinforces the persuasiveness of the majority opinion. It
strains so hard an drelies on such one-sided and partisan
source material, yet arrives at a set of legal conclusions that
is in dramatic variance with the premises of the “Reagan
doctrine” [...]’). See also Crawford (2012a), MEPIL, para 41.
185Nicaragua v. United States (Merits), supra n. 10, pp. 142-143, paras 284-285.
186Available on http://www.icj-cij.org/docket/files/70/9621.pdf.
Accessed 29 August 2016.
187See Schulte (2004), p. 206.
92 F.L. Bordin
discontinue the proceedings, and the Court accordingly
removed the case from the General List on 25 September
1991.188189190191192193194
In the years preceding the settlement, however, as the
Reagan administration’s support for the contras continued,
Nicaragua took a number of steps to seek the enforcement of
the ruling in the 1986 Judgment that the United States was
‘under a duty immediately to cease and to refrain from’ acts
breaching the prohibition on force and the principle of non-
intervention.195In particular, Nicaragua brought the matter of
the United States’ refusal to comply with the judgment to the
Security Council under Article 94(2) of the UN Charter,
according to which the Council ‘may, if it deems necessary,
make recommendations or decide upon measures to be taken
to give effect’ to an ICJ judgment. A couple of draft
resolutions calling for compliance with the 1986 Judgment
were predictably vetoed by the United States.196Nicaragua
then took the matter to the General Assembly, which adopted
Resolution 41/31 ‘urgently’ calling ‘for full and immediate
compliance’ and requesting the Secretary-General ‘to keep the
General Assembly informed on the implementation’ of that
resolution.197Although the first and only attempt to have
188 Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of
189America), Order of 26 September 1991, ICJ Reports 1991, p. 47.
190118Nicaragua v. United States (Merits), supra n. 10, p. 149, para 292,
clause 13.
191119For a detailed account, see Schulte (2004), pp. 199-203. Noticeably,
the United States was the
192only Council member to cast a negative vote; both draft
resolutions attracted 11 positive votes and
1933 abstentions (including two permanent members, France and the
United Kingdom).
194 UNGA Res. 41/31, ‘Judgment of the International Court of Justice
120
of 27 June 1986 concerning

195military and paramilitary activities in and against Nicaragua:
need for immediate compliance’,
1963 November 1986. The resolution was adopted by 94
affirmative votes, against 3 negative votes
197(by the United States, Israel and El Salvador) and 47
Judgments 93
recourse to the Security Council for the enforcement of an ICJ
judgment was unsuccessful, a commentator has noted that:
the fact that the judgment was first met with resistance
should not detract from the fact that the proceedings
fulfilled a useful purpose for the Nicaraguan government;
Contra aid might have been far more significant and
enduring without them and might have thrown Nicaragua
into a full-scale civil war. The litigation before the Court,
as well as its action before UN organs, was thus an
integral part of Nicaragua’s strategy to discredit the US
policy vis-a-vis the Sandinistas.198
4.2 The Cases against Costa Rica and Honduras
The Nicaragua case spanned a couple of sequels: the two

proceedings that Nicaragua instituted against Costa Rica and
Honduras in the immediate aftermath of the 1986 Judgment
complaining about a series of transboundary incidents
perpetrated
abstentions.
198121Schulte (2004), pp. 210.
Judgments 94
by groups of contras with the alleged support of the two
respondent States. Nicaragua alleged that by their actions and
omissions Costa Rica and Honduras had breached the
prohibition on the use of force, the principle of non-
intervention and other relevant rules of international law. The
case between Nicaragua and Honduras comprises a judgment
on jurisdiction given on 20 December 1988.199The Court
unanimously concluded that it was competent to decide on
the merits of the dispute on the basis of Article XXXI of the
American Treaty on Pacific Settlement (the ‘Pact of Bogota’),
and in doing so made important findings on the interpretation
of that compromissory clause and other provisions of the
Pact.200
The two Border and Transborder Armed Actions cases were
eventually settled in the context of the Contadora initiative, a
regional multilateral effort initiated by the governments of
Colombia, Mexico, Nicaragua, Panama and Venezuela to solve
the conflicts percolating in Central America in the
1980s.201That initiative reached a breakthrough with the
conclusion of the Esquipulas II Agreement, which established
a robust procedure for the restoration of peace in the
region.202It was in light of Esquipulas II, as noted in the
Court’s order of 19 August 1987, that the proceedings
between Nicaragua and Costa Rica were discontinued by
agreement between the parties.203It took, in contrast, a few
additional years of multilateral negotiations for the case
opposing Nicaragua and Honduras to come to a resolution.
199Border and Transborder Armed Actions (Nicaraguav. Honduras), Preliminary
Objections, Judgment, ICJ Reports 1988,p. 69 (hereinafter ‘Armed Actions (Nicaraguav.
Honduras) (Judgment)').
200Some of those are dealt with in the contribution by Antonio Remiro
Brotons below.
201See e.g. Armed Actions (Nicaraguav. Honduras)(Judgment), supran.
122, pp. 96-98, paras 70-74.
202Acuerdo de Esquipulas II—Procedimiento para establecer
la paz firme y duradera en Centroamerica (available at
Armed Actions (Nicaragua v. Honduras), Order of 27 May 1992, ICJ Reports 1992, p.
http://www.acnur.org/t3/fileadmin/Documentos/BDL/2004/25
121
222.
30.pdf?view=1). Accessed 29 Aug 2016.
203Border andaTransborder
For chronology, Armedsee
Actions
the(Nicaragua v. Costa Rica)between
correspondence , Order of 19the
August 1987,
parties and the Court, pp. 478-483,
available on http://www.icj-cij.org/docket/files/74/9673.pdf. Accessed 29
August 2016.
Judgments 95
On 17 June 1990, the Central American Presidents adopted
the Declaration of Antigua, a key point of which was the
urging by the Presidents of Guatemala, El Salvador and Costa
Rica that a Bipartite Commission be integrated to search for
the extra-judicial settlement of the dispute between Nicaragua
and Honduras. With the help of that Commission, the parties
reached an ‘out-of-court agreement’ in 1992, when they
asked the Court to discontinue the proceedings.204
204ICJ Reports 1987, p. 182.

96 F.L. Bordin
5 Concluding Remarks
There is a long-standing debate as to whether the mission of

the International Court of Justice as the principal judicial
organ of the United Nations is to focus on solving the specific
disputes that States bring before it or to take a more active
role in pushing the cause of international justice and
international law forward.205In Nicaragua the Court attempted to
do both: to show not only that it could be a viable forum for
the settlement of complex disputes involving the use of force
between ‘strong’ and ‘weak’ States, but also that it could do
that while providing a detailed clarification of the core
international legal issues involved. The Court’s ambition and
the United States’ reaction have, however, exposed some of
the weaknesses of the system for judicial settlement of
international disputes and of international law itself.
Whether the impact of Nicaragua on the International Court
was on balance positive or negative it is difficult to say. The
answers that commentators offer to this question often come
across as anecdotal, and as Shabtai Rosenne has put it ‘
[t]hose decisions have already fuelled more controversy than
probably any other judicial pronouncement of the present
Court’.206On an optimistic note, it seems fair to suggest that
the more alarmist predictions for the future of judicial dispute
settlement and the accusations of politicisation to which the
Court was subjected have not deterred States from having
recourse to the Court as the Cold War approached its end and
a more auspicious chapter in the history of international
cooperation began. It may be a bit disingenuous to suggest
that the sharp increase in the number of cases in the Court’s
docket from the late 1980s happened because of Nicaragua, but
given that recourse to the Court did increase in its aftermath
we are probably better off with a merits judgment that
touched upon so many pivotal issues of international law than
205For an excellent recent study on the role of the Court, see

Hernandez (2014).
206Rosenne (2006), p. 22.
Judgments 97
we would have been if the Court had declined jurisdiction.
However imperfect though the 1986 Judgment may be, it
remains a source of inspiration and wonder 30 years later—it
is difficult to imagine what international law would look like
without it.
References
Briggs H (1985) Nicaragua v United States: jurisdiction and admissibility.
AJIL 79:373-378 Briggs H (1987) The international court of
justice lives up to its name. AJIL 81:78-86 Cassese A (2007) The
Nicaragua and Tadic tests revisited in light of the ICJ judgment on
Genocide in Bosnia. EJIL 18:649-668
Crawford JR (2012a) Military and paramilitary activities in and
against Nicaragua case (Nicaragua v United States of
America). In: Woflrum R (ed) Max Planck encyclopedia of
public international law, vol VII. OUP, Oxford, pp 173-183
Crawford JR (2012b) Jurisdiction and applicable law. LJIL
25:471-479 D’Amato A (1987) Trashing customary international
law. AJIL 81:101-105 Damrosh L (2012) The impact of the
Nicaraguacase on the court and its role: harmful, helpful, or in
between? LJIL 25:135-147
FalkR (1987) The world court’s achievement. AJIL 81:106-112
Franck T (1985) Icy day at the ICJ. AJIL 79:379-384
Franck T (1987) Some observations on the ICJ’s procedural and
substantive innovations. AJIL 81: 116-121
Gill T (1989) Litigation strategy at the international court: a case
study of the Nicaraguav.
United Statesdispute. Martinus Nijhoff. Dordrecht Gray C (2003)
The use and abuse of the international court of justice: cases
concerning the use of force after Nicaragua. EJIL 14:867-905
Gray C (2008) International law and the use of force, 3rd edn.
OUP, Oxford Hernandez G (2014) The international court of
justice and the judicial function. OUP, Oxford Highet K (1987)
Evidence, the court, and the Nicaraguacase. AJIL 81:1-56 Hoss C,
Villalpando S, Sivakumaran S (2012) Nicaragua: 25 years later. LJIL
25:131-133 Kirgis F (1985) Nicaraguav. United Statesas precedent.
AJIL 79:652-657 Kolb R (2013) Discussion of T.H. Cheng’s
monograph When International Lawworks, and in particular a defence
of the Nicaraguajudgment of the ICJ. LJIL 26:751-766 Livingstone
G (2013) America’s backyard: the United States and Latin
America from the Monroe Doctrine to the War on Terror. Zed
Books, London Paddeu F (2015) Self-defence as a circumstance
precluding wrongfulness: understanding article 21 of the articles
on state responsibility. BYbIL 85:90-132 Pellet A (2012) The
Nicaraguacase: ‘Mafiosi’s’ and ‘Veteran’s’ approaches combined.
LJIL 25: 481-489
court 1920-2005, 4th edn. Martinus Nijhoff, Leiden
Schulte C (2004) Compliance with decisions of the international
98 F.L. Bordin
court of justice. OUP, Oxford Teson F (1987) Le peuple, c’est
moi! the world court and human rights. AJIL 81:173-183 Yusuf A
(2012) The notion of ‘Armed Attack’ in the Nicaraguajudgment and
its influence on subsequent case law. LJIL 25:461-470
Dr Fernando Lusa Bordin is

a John Thornely Fellow and Lecturer in
Law and a Director of Studies in Law at Sidney Sussex
College, Cambridge. He is, in addition, an Affiliated Lecturer
at the Faculty of Law and a Fellow of the Lauterpacht Centre
for International Law in the University of Cambridge.
The Saga of the 1858 Treaty of Limits:
The Cases Against Costa Rica
Daniel Müller
Abstract The Treaty of Limits concluded between Nicaragua and

Costa Rica in 1858 was aimed at determining the land
boundary along the San Juan River and at establishing a
specific regime of navigational rights in respect of part of this
river. It became the source of constant differences and
disputes between the two States. Some of these disputes
concerning the interpretation and the application of the 1858
Treaty were submitted to arbitration in the late nineteenth
century and to the Central American Court of Justice in the
early twentieth century. Since 2005, both States have
submitted four cases to the International Court of Justice
concerning the course of the boundary determined in the
1858 Treaty and the scope of the navigational rights granted
within this instrument.
Contents
1 Introduction...................................................................................................................................... 86
2 The Early Proceedings Concerning the 1858 Treaty....................................................................... 90
2.1 The Validity of the 1858 Treaty and the Scope of the Navigational Rights: The
1888 Cleveland Award........................................................................................................... 90
2.2 The Course of the Land Boundary Along the San Juan River Under the 1858
Treaty: The Awards Rendered by General Alexander........................................................... 94
2.3 The 1914 Chamorro-Bryan Treaty and Nicaragua’s Obligations Under the 1858
Treaty: The 1916 Judgment of the Central American Court of Justice............................. 99
3 The 1858 Treaty Before the International Court of Justice............................................................ 101
3.1 The Issue of the Navigation Regime: The 2009 Judgment in the Dispute Regarding
Navigational and Related Rights............................. 102
3.2 The Renewal of the Question of the Course of the Land Boundary: The 2015
Judgment .............................................................................................................................. 108
Daniel Müller was part of the legal team representing the

Republic of Nicaragua in the Dispute regarding Navigational and Related Rights
(Costa Rica v. Nicaragua). The views and opinions expressed in this
chapter are those of the author and do not necessarily reflect8
the views and opinions of the Republic of Nicaragua. 5
86 D. Müller
D. Müller (*)
Avocat a la Cour, Docteur en
droit, Paris, France e-mail:
mail@muellerdaniel.eu
62962-9_5
1 Introduction
Nicaragua has pursued the pacific settlement of its disputes

with all its neighbours throughout the last three decades. This
is true in respect of Costa Rica. Six cases between Nicaragua
and Costa Rica were submitted to the International Court of
Justice. The first, instituted in 1988, addressed the border and
transborder armed conflicts and the ‘breaches of the various
obligations of customary international law’ as well as treaty
obligations under the United Nations Charter, the OAS Charter
and the Pact of Bogota.1After the signature of the ‘Esquipulas
II’ treaty, this case was removed from the Court’s list at the
request of Nicaragua.2In early 2014, Costa Rica submitted a
new case against Nicaragua in respect of the delimitation of
the maritime boundary between both States in the Caribbean
Sea and the Pacific Ocean.3This case is still pending.
Four other cases were submitted to the Court in 2005,
2010, 2011 and 2017 respectively: the Dispute regarding Navigational
and Related Rights (Costa Rica v. Nicaragua) (hereinafter ‘Navigational and
Related Rights’) in which the Court issued a judgment on 13 July
2009,4and the disputes concerning Certain Activities carried out by
Nicaragua in the Border Area (Costa Rica v. Nicaragua) (hereinafter ‘Certain
Activities') and the Construction of a Road in Costa Rica along the San Juan
River (Nicaragua v. Costa Rica) (hereinafter ‘Construction of a Road' or
‘Road’), which were jointly5decided by the Court in 2015.6All of
these cases concern, inter alia,7the interpretation and application
of a treaty concluded between both States in 1858, after a
tumultuous common (or uncommon) history, including
independence, union, separation, war and a fight against
rebellion: the Boundary Treaty between Nicaragua and Costa
Rica signed in San Jose in 1858, also called Cañas-Jerez
Treaty of Limits (hereinafter ‘the 1858 Treaty’). The judicial
settlement
87 D. Müller
Application instituting proceedings, 28 July 1988, para 23(a).
2
Border and Transborder Armed Actions (Nicaragua v. Costa Rica), Order of 19 August 1987, ICJ
Reports 1987, p. 182.
3
Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua),
Application instituting proceedings, 25 February 2014.
4
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, ICJ
Reports 2009, p. 213 (hereinafter ‘Navigational and Related Rights (Judgment)’).
5
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Joinder
of Proceedings, Order of 17 April 2013, ICJ Reports 2013, p. 166 (hereinafter ‘Certain Activities
(Joinder)’); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa
Rica), Joinder of Proceedings, Order of 17 April 2013, ICJ Reports 2013, p. 184 (hereinafter
‘Construction of a Road (Joinder)’).
6
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua);
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment
of 16 December 2015 (hereinafter ‘Certain Activities; Construction of a Road (Judgment)’).
7
In Certain Activities and Construction of a Road, both States relied not only
on the 1858 Treaty, but also on obligations arising under
general international law in respect of the environment.
Costa Rica 88
of the differences arising under the 1858 Treaty, and its
interpretation and application by the Court, continues. On 16
January 2017, Costa Rica submitted a new application to the
Court in respect of ‘the precise location of the land boundary
separating the Los Portillos/Harbor Head Lagoon sandbar
from Isla Portillos’ and the alleged ‘illegal establishment of a
military camp by Nicaragua on the beach of Isla Portillos’. 207
The 1858 Treaty itself was aimed at putting an end to the
longstanding boundary dispute between the two Central
American States that arose when the States acceded to
207Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua),
Application instituting proceedings, 16 January 2017, para 3.
In its Application, Costa Rica requested the Court to join the
case concerning the land boundary and the case concerning
the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v.
Nicaragua), which has been pending since 2014. Costa Rica
opines: ‘The close relationship between this case and the case
concerning Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v.
Nicaragua) will be readily apparent. It is manifest that the two
cases should be joined. The two cases concern the same
parties. They both concern the same geographic area where
the two countries meet the Caribbean Sea. Moreover, the
question of the present proceeding is closely related to the
dispute in the Maritime Delimitation case, in that the two parties
express different views as to the starting point of the
maritime boundary in the Caribbean Sea. [...] In order to
proceed to the delimitation of maritime areas of the Parties in
the Caribbean Sea, the prior settlement of this dispute is
necessary.’ (ibid., para 24). The Court joined the two
proceedings in its Order of 2 February 2017. Recalling its
‘broad margin of discretion’ under Article 47 of the Rules of
Court and its previous case law (Order of 2 February 2017,
para 16), the Court pointed out that ‘in view of the claims
made by Costa Rica in the case concerning Isla Portillosand the
close
Award oflink
10
between
the President those
of the United Statesclaims
in regard toand certain
the Validity aspects
of the Treaty of Limitsof the
dispute
between Costain the
Rica of 15 July 1858, Decision
case concerning
and Nicaragua of 22 March
Maritime Delimitation, the proceedings
1888, Vol.
in the two cases should be joined. Such a joinder will allow
RIAA,
XXVIII, pp. 197-198 (hereinafter ‘Cleveland Award’).
Costa Rica 89
independence from Spain in 1821. Most of the differences
arose out of the ‘uncertain voice’208of the uti possidetis principle
by which the Central American States abided after
independence. Indeed, it was pointed out that ‘no precise line
of demarcation can be found in any of the earlier documents
[established under colonial rule]. Nor is this surprising in view
of the fact, to be inferred from the evidence that the region
through which the line ran was a rough, densely wooded and
thinly settled country, where no need was felt of any exact
delimitation in the days of the Spanish dominion’. 209After
independence, the questions of delimitation of the common
border along the San Juan River and the sovereignty over the
District of Nicoya on the Pacific coast, occupied by Costa Rica
in 1824, were revived. Because of the specific geographical
situation, the San Juan River was then considered an essential
part of the planned inter-oceanic canal connecting the
Caribbean through the San Juan River, Lake Nicaragua and
series
the Court to address simultaneously the totality of the various

interrelated and contested issues raised by the Parties,
including any questions of fact or law that are common to the
disputes presented.’ (Order of 2 February 2017, para 17).
208Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening),
209Judgment, ICJReports 1992, p. 386, para 4.
90 D. Müller
of locks and tunnels with the Pacific Ocean.11The delimitation
along and the respective rights of both States over the river
therefore became significant.
Between 1838 and 1857, several attempts to settle the
dispute between Nicaragua and Costa Rica through
negotiations took place.12At least six treaties were prepared,
some of which were even signed. Ultimately, however, none
of them was ever ratified by the respective national
authorities and none of them ever entered into force. It was
only after the mediation of the Republic of Salvador that the
1858 Treaty was negotiated, signed and ratified by both
States. The 1858 Treaty should have put an end to the
differences and disputes.
The Preamble of the 1858 Treaty states that the
negotiators were ‘commissioned by [their] constituents to
form a boundary treaty for both Republics, which may put an
end to the differences which have retarded the better and
more perfect understanding and harmony which should
prevail between them, for their common security and
aggrandizement’.13Article I of the 1858 Treaty further
confirms:
The Republic of Nicaragua and the Republic of Costa Rica
declare in the most decided and solemn terms that if for
a moment they were about to prepare to fight each other
on account of boundary controversies and for reasons
which each one of the high contracting parties considered
lawful and honorable, they now, after repeated proofs of
good understanding, pacific principles, and true
confraternity, desire and formally pledge themselves to
endeavor that peace, happily re-established, may each
year be more and more consolidated between the two
Governments and between the two nations, not only for
the benefit and welfare of Nicaragua and Costa Rica, but
for the happiness and prosperity which in a certain sense
redound to the advantage of the other, our sister
Republics of Central America.14
As to the common boundary along the San Juan River,

Article II of the 1858 Treaty adopted a rather
surprising15solution:
The dividing line between the two Republics, beginning at
the North Sea (Caribbean Sea,) shall start at the
extremity of Punta de Castilla, at the mouth of river San
Juan de Nicaragua, and shall run along its right bank to a
Costa
pointRica
3 English miles distant from Castillo Viejo, 91
measured from the outside fortifications of said Castillo
down to that point [.. .]. 16
n
The Central American Court of Justice noted in 1916 that
‘since ancient times, [the San Juan River] has been looked
upon as the artery that would some day be availed of to give
life to the long projected canal’ (Costa Rica v. Nicaragua, Judgment,
13 September 1916, reprinted in 11 AJIL 181 (1917), p. 221
(hereinafter ‘Costa Rica v. Nicaragua (1916 Judgment)’).
12
Ibid., p. 198.
13
Navigational and Related Rights, Memorial of Costa Rica, Vol. 2, Annex 7, p. 55
(English translation prepared by Nicaragua for the Cleveland
Arbitration).
14
Ibid., pp. 55-56.
15
See Kasikili/Sedudu Island (Botswana/Namibia), Judgment, ICJ Reports 1999, p. 1062,
para 24 (‘Treaties or conventions which define boundaries in
watercourses nowadays usually refer to the thalweg as the
boundary when the watercourse is navigable and to the
median line between the two banks when it is not, although it
cannot be said that practice has been fully consistent.’) See
also Frontier Dispute (Benin/Niger), Judgment, ICJ Reports 2005, p. 149, para 149.
16
Certain Activities; Construction of a Road (Judgment), supra n. 6, para 71.
In other words, the boundary did not divide the San Juan
River along the median line, the thalweg or the navigational
channel. It was determined along the right (Costa Rican) bank
of the San Juan River. Article VI of the 1858 Treaty unques-
tionably confirms this boundary line, providing:
The Republic of Nicaragua shall have exclusive dominium
and imperium over the waters of the San Juan River from
its origin in the lake to its mouth at the Atlantic Ocean
[.. .]. 17
However, the 1858 Treaty granted important rights of

navigation to Costa Rica on the waters of the San Juan River
(notwithstanding Nicaraguan sovereignty):
[T]he Republic of Costa Rica shall however have a
perpetual right of free navigation on the said waters
between the mouth of the river and a point located three
English miles below Castillo Viejo, [con objetos de comercio],
whether with Nicaragua or with the interior of Costa Rica
by the rivers San Carlos or Sarapiqui or any other
waterway starting from the section of the bank of the San
Juan established as belonging to that Republic. The
vessels of both countries may land indiscriminately on
either bank of the section of the river where navigation is
common, without paying any taxes, unless agreed by
both Governments. 18
92 D. Müller
Rather than resolving the territorial dispute between
Nicaragua and Costa Rica, the rather ambitious and
ambiguous regime established by the 1858 Treaty quickly
became the source of new differences and disputes. These
disputes concerned the land boundary and its exact course,
as well as the special regime of navigation rights on the San
Juan River. The 1858 Treaty became the object of more of a
century of arbitral and judicial dispute settlement between
Costa Rica and Nicaragua.
Before reaching the principal judicial organ of the United
Nations, the disputes between Costa Rica and Nicaragua
concerning all aspects of the 1858 Treaty, including its very
validity, were already heard and decided upon by President
Cleveland, General Alexander and the Central American Court
of Justice (Sect. 2). The three cases submitted to the
International Court of Justice and the two judgments
rendered in 2009 and 2015 are only the necessary
prolongation of these earlier settlement attempts (Sect. 3).
17
Navigational and Related Rights (Judgment), supra n. 4, p. 236, para 44. The Spanish original
provides: ‘La República de Nicaragua tendrá, exclusivamente el dominio y sumo imperio sobre las
aguas del río de San Juan desde su salida del Lago, hasta su desembocadura en el Atlantico [...]’.
18
Ibid. The Spanish original provides: ‘[P]ero la República de Costa Rica tendrá, en dichas aguas los
derechos perpetuos de libre navegación, desde la expresada desembocadura hasta tres millas inglesas
antes de llegar al Castillo Viejo, con objetos de comercio, ya sea con Nicaragua o al interior de Costa
Rica, por los rí os de San Carlos o Sarapiquí, o cualquiera otra ví a procedente de la parte que en la
ribera del San Juan se establece corresponder á esta Repítblica. Las embarcaciones de uno u otro país
podran indistintamente atracar en las riberas del rí o en la parte en que la navegacion es comun, sin
cobrarse ninguna clase de impuestos, á no ser que se establezcan de acuerdo entre ambos Gobiernos.
’
93 D. Müller
2 The Early Proceedings Concerning the 1858 Treaty
Soon after the entry into force of the 1858 Treaty,

controversies and differences arose between Nicaragua and
Costa Rica about the Treaty’s scope and implementation.
These disputes were submitted to international arbitration and
adjudication to President Cleveland (Sect. 2.1), General
Alexander (Sect. 2.2), and later the Central American Court of
Justice (Sect. 2.3).
2.1 The Validity of the 1858 Treaty and the Scope

of the Navigational Rights: The 1888 Cleveland Award
After the entry into force of the 1858 Treaty, Nicaragua and
Costa Rica entered into some additional agreements that were
designed to clarify the scope and meaning of the obligations
and rights entered into by the Parties. From 1870 onwards,
Nicaragua raised doubts concerning the validity of the 1858
Treaty and its interpretation. These concerns became more
acute when Costa Rica established a revenue guard in March
1886 that had at its service a national steamboat and that
had the mission to prevent contraband in the waters and
territories of its circumscription, including the San Juan River.
On 24 December 1886, Costa Rica and Nicaragua agreed
that the question of the validity of the 1858 Treaty should be
submitted to arbitration undertaken by the President of the
United States of America, Grover Cleveland.19In addition,
Costa Rica and Nicaragua decided that if President Cleveland
determined that the 1858 Treaty was valid, he should also
declare whether Costa Rica has the right of navigation on the
river San Juan with vessels of war or with the revenue
service, and resolve all other points of doubtful interpretation.
Nicaragua set out a list of eleven points of concern relating
to the interpretation of the 1858 Treaty. These points
concerned the exact course of the land boundary on the
20
Atlantic side, in particular in the vicinity of the mouth of the
Award of the President of the United States in regard to the Validity of the Treaty of Limits
between Costa Rica and Nicaragua of 15 July 1858, Decision of 22 March 1888, RIAA,
San Juan River, the scope of Costa Rica’s right of free
Vol.
XXVIII, p. 193 (Report of Assistant Secretary of State, G. L.
Rives) (hereinafter ‘Rives Report’).
94 D. Müller
navigation, the obligations of Costa Rica to contribute to
necessary works in the San Juan River, and the deviation of
waters of the San Juan River, the implication of Costa Rica in
any grants for canal purposes etc. In contrast, Costa Rica did
not communicate points of concern. Rather, it submitted that
the 1858 Treaty was ‘perfectly clear and intelligible’. 20 Treaty 19
between Costa Rica and Nicaragua for the Arbitration of the Validity of the Boundary Treaty of 15
April 1858, Guatemala City, 24 December 1886 (Esquivel-Roman Treaty), BFSP, Vol. LXXVII, p.
476.
Costa Rica 95
In respect of the (in)validity of the 1858 Treaty, Nicaragua
submitted three arguments. First, Nicaragua alleged that the
Treaty did not respect fundamental constitutional
requirements under the Constitution of Nicaragua. Nicaragua
submitted that the Constitution in force defined the
boundaries of the State and that, therefore, any alteration of
the boundaries needed specific approval by the legislative
assemblies. In this respect, the Report prepared by Assistant
Secretary of State, Mr. Rives, explained that:
The general doctrine that in determining the validity of a
treaty made in the name of a state, the fundamental laws
of such state must furnish the guide for determination,
has been fully and ably discussed on the part of
Nicaragua, and its correctness may certainly be admitted.
But it is also certain that where a treaty has been
approved by a government, and an effort is subsequently
made to avoid it for the lack of some formality, the
burden is upon the party who alleges invalidity to show
clearly that the requirements of the fundamental law
have not been complied with. 21
This statement is consistent with the modern international

law of treaties as codified in Article 46 of the 1969 Vienna
Convention on the Law of Treaties.22Indeed, the 1888 Award
of President Cleveland was referred to by the International
Law Commission as one example supporting this
rule.23However, in the case of the 1858 Treaty, President
Cleveland was not convinced that the Nicaragua Constitution
actually delimited the State boundaries, and consequently did
not consider that a specific procedure under the Constitution
needed to be observed for the ratification process, including
an approval of the second Legislature.24Moreover, President
Cleveland took into account that for some ‘ten to twelve
years’ Nicaragua did not dispute the validity of the 1858
Treaty.25Although such acquiescence was not considered a ‘as
a substitute for ratification by a second Legislature, if such
had been needed’,26it was in President Cleveland’s view ‘strong
evidence’27of the contemporaneous understanding of the
constitutional requirement by Nicaragua itself.
21
Ibid., p. 202.
96 D. Müller
2
Article 46 of the 1969 Vienna Convention on the Law of
Treaties provides:
Article 46. Provisions of Internal Law Regarding Competence to Conclude Treaties
1. A State may not invoke the fact that its consent to
be bound by a treaty has been expressed in violation of a
provision of its internal law regarding competence to
conclude treaties as invalidating its consent unless that
violation was manifest and concerned a rule of its internal
law of fundamental importance.
2. A violation is manifest if it would be objectively
evident to any State conducting itself in the matter in
accordance with normal practice and in good faith.
23
Paragraph 6 of the commentary of Draft Article 43, YbILC 1966,
Vol. II, Part two, p. 241. 24Rives Report, supra n. 20, p. 203. In his
award, President Cleveland endorsed the findings and the
reasoning of Rives, or at least, did not modify them.
25
Ibid.
26
Ibid.
21
Ibid.
A comparable analysis was undertaken in respect of
Nicaragua’s other objection to the 1858 Treaty’s validity.
Indeed, Nicaragua argued that ‘the pretended ratifications, of
the Treaty were exchanged before the Treaty had been
submitted to the Congress of Nicaragua, and it was not
approved by the first Congress of Nicaragua until after the
expiration of the forty days provided for the exchange of
ratifications in Article XII’.210President Cleveland considered
this irregularity (if there was any) as immaterial. He
emphasised that:
Nicaragua cannot be permitted to say, as she does in
effect say in this branch of her argument — “it is true
that this Treaty was approved unreservedly by both the
executive and legislative branches of the Government;
but such approval is worthless, as it was expressed not
forty but forty-three days after the signature of the
Treaty.” The fact of approval being established, the time of
approval is immaterial, provided the other211party by its
acquiescence has seen fit to waive delay.
The third point raised by Nicaragua as to the alleged
invalidity of the 1858 Treaty concerned the ratification—or the
absence of ratification—of San Salvador. The government of
San Salvador had offered its mediation between Costa Rica
and Nicaragua and contributed significantly to the conclusion
of the 1858 Treaty. Moreover, in accordance with Article X of
210Ibid., p. 206.
211Ibid., p. 208.
Costa Rica 97
the 1858 Treaty, San Salvador accepted to ‘guarantee’ the
neutrality of the San Juan River and Lake Nicaragua in case of
hostilities between Nicaragua and Costa Rica:
The stipulation [in respect of the neutrality] being
essentially important for the proper custody of both the
Port and the River against foreign aggression, which
would affect the general interests of the country, the
strict performance thereof is left under the special
guarantee, which in the name of the mediator
Government, its Minister Plenipotentiary herein present is
ready to give, and does hereby give, in use of the
faculties vested in him for that purpose by his
Government.212
Nicaragua submitted that this guarantee constituted ‘the
controlling consideration in the mind of the negotiator of the
Treaty’213and that the Treaty was ‘a tripartite Treaty’.214It
concluded that the Treaty never entered into force since San
Salvador had failed to ratify the 1858 Treaty.215President
Cleveland however considered that Article X and the
guarantee it contained did not transform the 1858 Treaty into
a tripartite instrument:
San Salvador is not in form a contracting party at all. And
in substance that Government is not a party to the
agreement — the clause containing the guarantee being
entirely separable from all the rest. [...] It follows that
the clause of guarantee in the Treaty of Limits is no part
of the principal agreement, and that on general principles
the rest of the Treaty would not stand or fall with this
subsidiary or accessory contract.
In addition, President Cleveland relied on the fact that
Nicaragua and Costa Rica exchanged their respective
instruments of ratification without waiting for San Salvador.
He underlined:
the Government of Nicaragua was silent when it ought to
have spoken, and so waived the objection now made. It
saw fit to proceed to the exchange of ratifications without
waiting for San Salvador. The Treaty was complete
without Article X. To all the other articles and stipulations
it contained Costa Rica and Nicaragua alone might fully
bind themselves. They did so, irrevocably, by a formal
exchange of ratifications; and neither may now be heard
to allege, as reasons for rescinding this completed Treaty,
any facts which existed and were known at the time of its
212See ibid., p. 205.

213 Ibid., p. 204.
214Ibid.
215Ibid, p. 205.
98 D. Müller
consummation. 216
The Cleveland Award relating to the validity of the 1858

Treaty is a sound application of principles of international
treaty law that are still in force and relevant today.
In respect of the issues of interpretation raised by
Nicaragua, the ruling of President Cleveland is less well
known. He substantially departed from the draft and the
report prepared by the Assistant Secretary of State, Mr.
Rives.217
Concerning the navigation regime on the San Juan River,
President Cleveland accepted that:
The Republic of Costa Rica under said Treaty and the
stipulations contained in the sixth article thereof, has not
the right of navigation of the River San Juan with vessels
of war; but she may navigate said river with such vessels
of the Revenue Service as may be related to and
connected with her enjoyment of the ‘purposes of
commerce’ accorded to her in said article, or as218may be
necessary to the protection of said enjoyment.
The decision in respect of most of the issues219of
interpretation confirms the essential right of Costa Rica to
navigate in part of the San Juan River. President Cleveland
confirmed that, as the sovereign, Nicaragua alone had the
right, and perhaps even the duty, to carry out the necessary
works to ‘keep the navigation of the River or Port free and
unembarrassed, or to improve it for the common benefit’, 220or
even to deviate the water of the river. However, these rights
had to be exercised in such a way as not to hamper or impair
the rights of Costa Rica over its own territory and, indeed, in
the San Juan River. President Cleveland considered that:
The Republic of Costa Rica cannot prevent the Republic
of Nicaragua from executing at her own expense and
within her own territory such works of improvement,
provided such works of improvement do not result in the
occupation or flooding or damage of Costa Rica territory,
or in the destruction or serious impairment of the
navigation of the said River or any of its branches at any221
point where Costa Rica is entitled to navigate the same.
216Ibid, p. 206.
217See Navigational and Related Rights, Counter-Memorial of Nicaragua, Vol. 1, p. 122, para 3.1.49 and
Vol. II, Annex 72.
218Cleveland Award, supra n. 10, p. 209.
219The first three issues concerned the course of the land
boundary as defined under the 1858 Treaty.
221Ibid, p. 210.
Costa
And Rica 99
he further ruled that Costa Rica’s rights under the 1858
Treaty
are to be deemed injured in any case where the territory
belonging to the Republic of Costa Rica is occupied or
flooded; where there is an encroachment upon either of
the said harbors injurious to Costa Rica; or where there is
such an obstruction or deviation of the River San Juan as
to destroy or seriously impair the navigation of the said
River or any of its branches at any point where Costa
Rica is entitled to navigate the same.222
The Cleveland Award is essential to the interpretation and
application of the 1858 Treaty. It confirms not only the
continuous validity of the instrument, but settled (or was
supposed to settle) the differences between Nicaragua and
Costa Rica in respect of the Treaty’s interpretation. In
particular, it underlined the essential characteristic of the free
navigation regime set out under the 1858 Treaty and the
necessary consequences for Nicaragua as the sovereign over
the waters of the San Juan River. In other words, President
Cleveland made clear that Costa Rica not only enjoyed a right
of navigation con objetos de comercio, but also the rights that are
necessarily associated with such navigation, including the
operation of revenue services on the River.
2.2 The Course of the Land Boundary Along the San

Juan River Under the 1858 Treaty: The Awards
Rendered by General Alexander
According to the provisions of the 1886 Esquivel-Roman

Treaty,223the Award rendered by President Cleveland was final
and binding.224The Arbitration Agreement also provided for
implementation of the Award. In the event the arbitrator
222Ibid.
223Seesupra n. 19.
224Article VII of the 1886 Esquivel-Roman Treaty provides:
‘Whatever the decision of the Arbitration be, it shall be held to
be obligatory between the Contracting Parties. No other
recourse shall be admitted, and it shall come into force 30
days after it has been communicated to both Governments or
to their Representative. ’
100 D. Müller
found the 1858 Treaty to be valid, Nicaragua and Costa Rica
agreed to ‘name four Commissioners, two each, who shall
take the proper measures with reference to the line of
demarcation set forth in Article II of [the 1858 Treaty]’. 225The
1858 Treaty
itself contained a very similar provision in its Article III providing
for the boundary to ‘be measured entirely or in part by
Commissioners of the two Governments’.226
In 1896, Nicaragua and Costa Rica concluded, under the
mediation of the Government of El Salvador, the Convention
on border demarcation (Pacheco- Matus
Convention).227Pursuant to Article I of that Convention, both
States agreed to establish two national Demarcation
Commissions ‘for the purpose of duly defining and marking
out the dividing line between the Republics of Costa Rica and
Nicaragua according to the stipulations of the Treaty of 15
April 1858 and the award of the President of the United States
of America, Mr. Grover Cleveland’.228The Commissions were to
further include ‘an engineer appointed by the President of the
United States of America’ who had ‘broad powers to decide
whatever kind of differences may arise in the course of any
2251886 Esquivel-Roman Treaty, supra n. 19, Article X. Article X provides

further:
These measures, and the demarcation to which they
refer, shall be done within 30 months from the date of
the naming of the Commissioners.
These Commissioners shall be allowed to depart from
the line laid down in the Treaty one mile in order to lay
down natural lines or lines more distinguishable, but this
deviation shall only be allowed when all the
Commissioners are of one accord as to the point or
points to be substituted.
226Navigational and Related Rights, Memorial of Costa Rica, Vol. 2, Annex 7, p. 55 (English
227translation prepared by Nicaragua for the Cleveland
Arbitration).
22845Convention on border demarcation concluded between the
Republic of Costa Rica and the Republic of Nicaragua, El
Salvador,
46
27 March 1896, reproduced in RIAA, Vol. XXVIII, p. 211.
Ibid., Article I.
Costa Rica 229 101
operations’. The engineer-umpire so appointed was General
Edward Porter Alexander.
During the work of the Demarcation Commissions, General
Alexander rendered five awards, which resolved further
disputes between Costa Rica and Nicaragua. Those disputes
did not relate to the regime of navigation in the San Juan
River. Rather, they concerned the exact course of the land
boundary determined under the provisions of the 1858 Treaty
and the 1888 Cleveland Award. Interestingly, the navigational
regime, i.e., Costa Rica’s right to free navigation con objetos de
comercio, played a significant role in the interpretation and the
implementation of the 1858 Treaty by General Alexander.
Of the five awards rendered by General Alexander, the first
three are relevant for present purposes.230They address issues
concerning the interpretation of boundary treaties, and the
particularities of boundaries determined along rivers and river
banks.
In his first Award, General Alexander underlined that in
order to determine the course of the boundary, ‘ [i]t is the
meaning of the men who framed the treaty which we are to
seek, rather than some possible meaning which can be forced
upon isolated words or sentences’.231In other words, the 1858
Treaty needs to ‘be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and
purpose’, i.e., the rules of interpretation found in the Vienna
Convention and reflective of customary international
law.232The umpire considered that ‘from the general
consideration of the treaty as a whole the scheme of
229 Ibid., Article II.

41
23048Award of 30 September 1897, RIAA,Vol. XXVIII, pp. 215-

221 (hereinafter ‘Alexander First Award’); Award of 20
December 1897, RIAA, Vol. XXVIII, pp. 223-225 (hereinafter
‘Alexander Second Award’); Award of 22 March 1898, RIAA, Vol.
XXVIII, pp. 227-230 (hereinafter ‘Alexander Third Award’).
23149Alexander First Award, supra n. 48, p. 216.
232Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment of 2
February 2017, para 63.
102 D. Müller
compromise stands out clear and simple’.233
In particular, the specific navigational regime set out in the
1858 Treaty as part of the delimitation which permitted Costa
Rica to enjoy extensive rights of navigation con objetos de comercio
demonstrated that the parties considered the San Juan River
as an ‘outlet for commerce’. Indeed, ‘throughout the treaty
the river is treated and regarded as an outlet of
commerce’.234General Alexander found that:
Costa Rica was to have as a boundary line the right or
southeast bank of the river, considered as an outlet for
commerce, from a point 3 miles below Castillo to the sea.
Nicaragua was to have her prized “sumo imperio” of all
the waters of this same outlet for commerce, also
unbroken to the sea.235
This understanding of the river as the boundary and ‘outlet
of commerce’ permitted a better understanding of what the
parties had in mind when determining the boundary, and in
particular the end point of the land boundary on the
Caribbean coast. First, the parties’ understanding of the San
Juan River as a means for navigation necessarily implied that
they considered the River ‘in average condition of water, in
which condition alone it is navigable’.236Thus, General
Alexander could set aside the Costa Rican argument that the
course of the San Juan—and therefore the course of the
boundary running on its bank—needed to be established by
reference to the dry season condition when the 1858 Treaty
was concluded. Moreover, being an outlet of commerce, it
would have made no sense to determine a boundary along
branches of San Juan River that were not proper for
navigational uses and that were not ‘outlet for commerce’ and
had ‘no harbour at [their] mouth’. General Alexander
concluded that the boundary must necessarily ‘follow the
remaining branch, the one called the Lower San Juan,
through its harbor and into the sea’.237
Against the difficulties of determining the exact location of
233Alexander First Award, supra n. 48, p. 217.
234Ibid, pp. 218-219.
235Ibid., p. 217.
236Ibid., p. 219.
237Ibid, p. 217.
Costa Rica 103
the starting point described in the 1858 Treaty, likely because
of natural forces of the sea and erosion, General Alexander
determined the initial part of the boundary starting on the
Caribbean Sea in the following terms:
Under these circumstances it best fulfills the demands of
the treaty and of President Cleveland’s award to adopt
what is practically the headland of to-day, or the
northwestern extremity of what seems to be the solid
land, on the east side of Harbor Head Lagoon. I have
accordingly made personal inspection of this ground, and
declare the initial line of the boundary to run as follows,
to wit: Its direction shall be due northeast and
southwest, across the bank of sand, from the Caribbean
Sea into the waters of Harbor Head Lagoon. It shall pass,
at its nearest point, 300 feet on the northwest side from
the small hut now standing in that vicinity. On reaching
the waters of Harbor Head Lagoon the boundary line
shall turn to the left, or southeastward, and shall follow
the water’s edge around the harbor until it reaches the
river proper by the first channel met. Up this channel,
and up the river proper, 238the line shall continue to ascend
as directed in the treaty.
In his second Award,239General Alexander had to address a
salient issue of natural boundaries, and, in particular,
boundaries determined by or along rivers. Indeed, as the
General Alexander pointed out:
It should be noted, for a clearer understanding of the
question at hand, that the San Juan river runs through a
flat and sandy delta in the lower portion of its course and
that it is obviously possible that its banks will not only
gradually expand or contract but that there will be
wholesale changes in its channels. Such changes may
occur fairly rapidly and suddenly and may not always be
the result of unusual factors such as earthquakes or
major storms.240
The inevitable natural changes of natural features that
serve to determine boundaries between States do not render
useless or unnecessary the measurement and the
demarcation of the course of the boundary thus defined. Of
course, the mere measurement of the boundary line could not
change the legal definition of the boundary, in particular in
the portion of the San Juan River where the boundary
between Nicaragua and Costa Rica runs along the right bank
238Ibid., p. 220.
239Alexander Second Award, supra n. 48, p. 223.
240Ibid., p. 224.
104 D. Müller
of the river. ‘The fact that the line has been measured and
demarcated will neither increase nor decrease any legal
standing that it might have had it not been measured or
demarcated.’241The boundary should always coincide with the
river bank independently of the mapping of the course of the
boundary on a given moment in time. As General Alexander
rightly ruled:
Today’s boundary line must necessarily be affected in
future by all these gradual or sudden changes. But the
impact in each case can only be determined by the
circumstances of the case itself, on a case-by-case basis
in accordance with such principles of international law as
may be applicable.
The proposed measurement and demarcation of the
boundary line will not have any effect on the application
of those principles.
The only effect obtained from measurement and
demarcation is that the nature and extent of future
changes may be easier to determine.242
In his third Award, rendered on 22 March 1898,243engineer-
arbitrator Alexander rendered his previous finding on the
course of natural boundaries more precise and complete. It
was accepted that, ‘according to the well known rules of
international law, the precise location of the dividing line on
the right bank of the San Juan river that this Commission is
now determining, may be altered in future by possible
changes in the banks or channels of the river’.244But it was
also elementary and well-known to all those involved that
‘[b]orders are intended to maintain peace, thus avoiding
disputes over jurisdiction. In order to achieve that goal, the
border should be as stable as possible.’245Reconciling both
principles, it appeared unreasonable to interpret the 1858
Treaty, that determined the course of the boundary along the
right bank of the San Juan River, as pointing to the bank and
its daily changes due to the changing water level, as the
241Ibid.
242Ibid.
243Alexander Third Award, supra n. 48, p. 227.
244Ibid., p. 227.
245Ibid., p. 228.
Costa Rica 105
Nicaraguan Commission seemed to understand.246The
Arbitrator came to the following conclusion:
[W]herever a treaty rules that the bank of a river shall be
taken as a boundary, what is understood is not the
temporary bank of land that emerges during exceptional
high- or low-water stages, but the bank with the water at
ordinary stage. And once defined by treaty, it will become
permanent like the surface of the soil over which it flows.
If the bank recedes the boundary line shrinks, if the bank
expands towards the river, it moves forward.
The periodic rise and fall of the water level does not
affect it. [...] In other words, it is the river bed that
affects changes and not the water within, over or below
its banks. [...] Fluctuations in the water level will not alter
the position of the boundary line, but changes in the
banks or channels of the river will alter it, as may be
determined by the rules of international law applicable on
a case-by-case basis.247
In respect of the specific boundary between Nicaragua and
Costa Rica, General Alexander further explained in the third
Award that:
in the practical interpretation of the 1858 Treaty, the San
Juan river must be considered a navigable river. I
therefore rule that the exact dividing line between the
jurisdictions of the two countries is the right bank of the
river, with the water at ordinary stage and navigable by
ships and general-purpose boats. At that stage, every
portion of the waters of the river is under Nicaraguan
jurisdiction. Every portion of land on the right bank is
under Costa Rican jurisdiction. The measurement and
delimitation work now being performed by the parties in
the field every day defines points along this line at
convenient intervals, but the border line between those
points does not run in a straight line; as noted above, it
runs along the banks of the river at the navigable stage
in a curve with innumerable irregularities of little value
which would require considerable expenditure to minutely
demarcate.248
Although the concept of navigability remains by its nature
open to interpretation and different points of view,249it played
246Ibid, p. 228.
247Ibid., pp. 229 and 230.
248Ibid, p. 230.
249The International Court of Justice noted in this respect
that ‘the navigability of watercourses varies greatly,
depending on prevailing natural conditions. Those conditions
can prevent the use of the watercourse in question by large
vessels carrying substantial cargoes, but permit light flat-
106 D. Müller
an important role in the delimitation of the boundary between
Nicaragua and Costa Rica and the understanding the Parties
had of the San Juan river as a natural feature and ‘outlet of
commerce’ .
The rulings of General Alexander were and still are sound.
Nevertheless, as will be explained below, the course of the
boundary along the bank of the San Juan River divided
Nicaragua and Costa Rica again in 2010.
2.3 The 1914 Chamorro-Bryan Treaty and Nicaragua’s

Obligations Under the 1858 Treaty: The 1916
Judgment of the Central American Court of Justice
On 5 August 1914, Nicaragua and the United States of

America entered into a treaty (the 1914 Chamorro-Bryan
Treaty) concerning the construction and maintenance of an
inter-oceanic canal through the San Juan River and Lake
Nicaragua, or in any other location in Nicaragua. Article I of
the 1914 Chamorro-Bryan Treaty read:
The Government of Nicaragua grants in perpetuity to the
Government of the United States, forever free from all
taxation or other public charge, the exclusive proprietary
rights necessary and convenient for the construction,
operation, and maintenance of an interoceanic canal by
way of the San Juan River and the great Lake of
Nicaragua or by way of any route over Nicaraguan
territory, the details of the terms upon which such canal
shall be constructed, operated, and maintained to be
agreed to by the two Governments whenever the
Government of the United States shall notify the
Government of Nicaragua of its desire or intention to
construct such canal.250
On 24 March 1916 Costa Rica filed a case against Nicaragua
before the Central American Court of Justice. Costa Rica
claimed that, by entering into the 1914 Chamorro-Bryan
Treaty without obtaining Costa Rica’s consent, Nicaragua
breached its obligation to consult Costa Rica on any inter-
oceanic canal project. This obligation is set out in Article VIII
of the 1858 Treaty:
If the contracts for canalization or transit entered into
before the Nicaraguan Government had knowledge of this
bottomed vessels to navigate’ (Kasikili/Sedudu Island (Botswana/Namibia),

Judgment, ICJReport 1999, p. 1071, para 40).
250Reproduced in Costa Rica v. Nicaragua (1916 Judgment), p. 190.
Costa Rica
convention should for any cause cease to be in force, 107
Nicaragua agrees not to conclude any others relating to
the objects above stated without first hearing the opinion
of the Costa Rican Government respecting the
disadvantages that may result to the two countries,
provided that opinion be given within thirty days after the
request therefor shall have been received, in case that
the Nicaraguan Government should indicate that a
decision is urgent; and in the event that the enterprise
should cause no injury to the natural rights of Costa Rica,
that opinion shall be advisory.251
The Cleveland Award had interpreted this provision of the
1858 Treaty. President Cleveland acknowledged that under
Article VIII of the 1858 Treaty, ‘Nicaragua remain[ed] bound
not to make any grants for canal purposes across her territory
without first asking the opinion of the Republic of Costa
Rica’.252Moreover, in the opinion of President Cleveland, the
1858 Treaty did not:
give to the Republic of Costa Rica the right to be a party
to grants which Nicaragua may make for inter-oceanic
canals; though in cases where the construction of the
canal will involve an injury to the natural rights of Costa
Rica, her opinion or advice, as mentioned in Article VIII
of the Treaty, should be more than “advisory” or
“consultative.” It would seem in such cases that her
consent is necessary, and that she may thereupon
demand compensation for the concessions she is asked
to make [.. .].253
This interpretation of Article VIII of the 1858 Treaty was
not denied by either Costa Rica or Nicaragua before the
Central American Court of Justice. The Court acknowledged
that the 1858 Treaty as interpreted by President Cleveland
stood ‘as authority for the solution of all pending doubts
respecting boundaries and the canal in question’.254
The Central American Court considered that by entering
into the 1914 Chamorro-Bryan Treaty without consulting
Costa Rica, Nicaragua breached its obligations under the 1858
251Ibid., p. 193.
253Ibid, pp. 210-211.
254 Costa Rica v. Nicaragua (1916 Judgment), p. 219. See also ibid.,
12
p. 224 (‘the Cañas-Jerez Treaty, far from having expired,

stands ratified in its full vigor by the arbitral award of
President Cleveland, to which decision the high parties
concede the legal value of a perfect and obligatory treaty’).
108 D. Müller
Treaty. The Court held that Article VIII of the 1858 Treaty as
interpreted by the Cleveland Award ‘restricted] Nicaragua’s
right to dispose freely of her ownership over the waters of the
San Juan River’255and that ‘it is indispensable to the legality of
the contractual act first to consult the decisive opinion of
Costa Rica in consideration of the fact that both Republics
maintain perfect rights in that river, which, since ancient
times, has been looked upon as the artery that would
someday be availed of to give life to the long projected
canal.’256Although the 1914 Chamorro-Bryan Treaty did not
retain the San Juan River as the only possible route for the
inter-oceanic canal, the Court found that Costa Rica ought to
have been consulted and her voice would have been decisive
in character in respect of the ‘alienation of the rights
necessary for the construction of an interoceanic canal by way
of the San Juan River’.257The Court concluded:
The Bryan-Chamorro concession, in prescribing the rights
necessary for the construction of a canal by way of the
San Juan River, ignored the legitimate rights of the high
party complainant, since the realization of that work over
that route necessarily implies the occupation of the Costa
Rican shore or the consequent inundation of her territory
as well as the use of the Costa Rican affluents, etc., and
in case, for canal purposes, the waters of the San Juan
River should be diverted, Costa Rica’s right to navigate
that river and its affluents wherever Costa Rica enjoys
the joint rights above specified, would be rendered
nugatory.258
The Court therefore declared that Nicaragua had violated
Costa Rica’s rights under the 1858 Treaty.259
It is interesting to note that the Court refused to grant
Costa Rica’s request to declare the 1914 Bryan-Chamorro
Treaty ‘null and void and without effect’.260Given the absence
of the United States as a party to the dispute before the
Central American Court, such a decision would indeed be
contrary to the well-established principle of consensual
255 Ibid, p. 221.

13
256Ibid.
25715Ibid, p. 222.
25816Ibid, p. 223.
25911Ibid., p. 229.
260Ibid., p. 202.
Costa Rica 109
jurisdiction. Nicaragua relied on this fact and disputed the
Court’s jurisdiction over the case brought by Costa Rica. The
Court however ruled that it could
unquestionably carry out its functions without venturing
upon forbidden ground, limiting itself, however, as in
duty it is bound to do, to a determination of the juristic
relations existing between Central American states
engaged in controversy and to a declaration of the law
with respect to them; but refraining absolutely from
cognizance conditions of fact and law which their acts
have created with respect to other nations not under the
jurisdiction of this Court.261
Within less than 30 years, the 1858 Treaty was subject of
three arbitral and judicial proceedings that successively
confirmed its validity, clarified its interpretation and tested the
obligations contained in the 1858 Treaty against acts and
omissions of the contracting parties. Despite this intense
third-party dispute settlement, the 1858 Treaty remained
controversial between the parties concerning the two most
essential aspects of the treaty, i.e., the scope and extent of
the navigational rights granted to Costa Rica, and the course
of the boundary along the San Juan River.
3 The 1858 Treaty Before the International

Court of Justice
In 1956, Nicaragua and Costa Rica concluded an agreement

pursuant to Article IV of the Pact of Amity signed in 1949 (the
1956 Fournier-Sevilla Agreement).262In Article I of that
Agreement, the Parties confirmed their common
understanding in respect of the navigational rights in the San
Juan River by affirming their cooperation in order to facilitate
and expedite traffic ‘on the San Juan River within the terms of
the Treaty of 15 April 1858 and its interpretation given in the
arbitration on 22 March 1888’ .263Nevertheless, the question of
the Costa Rica’s rights to navigate on the San Juan River
261 Ibid., p. 212.

19
262UNTS, Vol. 1465, p. 233.

263Ibid.
110 D. Müller
came up again and was submitted, by Costa Rica, to the
scrutiny of the International Court of Justice in 2005 in the
Dispute regarding Navigational and Related Rights (Sect.3.1).
The issue of the course of the boundary determined in
accordance with the 1858 Treaty, as well as the Cleveland
and the Alexander Awards were also re-opened, apparently
because of an erroneous representation of the boundary on
Google
Maps. The dispute escalated and was submitted, again by
Costa Rica, to the International Court of Justice (Sect. 3.2).
3.1 The Issue of the Navigation Regime: The 2009

Judgment in the Dispute Regarding Navigational and
Related Rights
New incidents arose on the San Juan River in the 1980s and
1990s between Costa Rica and Nicaragua. In 2001, Nicaragua
made a reservation to its declaration under Article 36 of the
Statute of the International Court of Justice in order to no
longer accept the Court’s jurisdiction ‘in relation to any matter
or claim based on interpretations of treaties or arbitral awards
that were signed and ratified or made, respectively, prior to
31 December 1901’.264This arguably would have excluded any
dispute in respect of the 1858 Treaty. However, on 26
September 2002, both parties agreed to a 3-year moratorium:
Nicaragua would not invoke its reservation and Costa Rica
would not initiate any action before the International Court of
Justice.265Shortly after this moratorium lapsed, on 29
September 2005, Costa Rica submitted the dispute to the
Court.
The Court had to address two main questions in that case:
(1) the extent of Costa Rica’s right of free navigation on the
San Juan River; and (2) Nicaragua’s right to regulate the
navigation on the San Juan River. Largely unrelated to the
navigational rights of Costa Rica and the 1858 Treaty as a
264Navigational and Related Rights (Judgment), supra n. 4, p. 231, para 27.

265Ibid.
Costa Rica 111
whole, the Court also examined the possibility for inhabitants
of the Costa Rican bank of the river to engage in subsistence
fishing. Costa Rica claimed, inter alia, that Nicaragua was in
breach of its obligation ‘to allow all Costa Rican vessels and
their passengers to navigate freely on the San Juan for
purposes of commerce, including communication and the
transportation of passengers and tourism’.266It also submitted
that Costa Rica had the right to navigate the San Juan River
with official vessels ‘including for the purposes of re-supply
and exchange of personnel of the border posts along the right
bank of the River with their official equipment, including
service arms and ammunition, and for the purposes of
protection as established in the relevant instruments, and in
particular the Second article of the Cleveland Award’. 267Finally,
Costa Rica alleged that Nicaragua had an obligation ‘to permit
riparians of the Costa Rican bank to fish in the River for
subsistence purposes’.268Nicaragua did not dispute the Court’s
jurisdiction,269but requested the Court to declare that it was
not in breach of any obligation under the 1858 Treaty or
general international law.270It further asked the Court to
clarify certain aspects of Nicaragua’s right, as the sovereign
over the waters of the San Juan River, to regulate the
navigation on the river including for vessels of Costa Rica. 271
3.1.1 The Scope of Costa Rica’s Right of Free Navigation:

The Interpretation of the Expression ‘con objetos de comercio’
The Court underlined that the question of the existence and

the scope of the navigational rights on the San Juan River
was determined under the specific legal regime established by
the 1858 Treaty and that, therefore, it was not necessary to
have recourse to general rules of international law or
customary international law on ‘international rivers’, if such
266Ibid, p. 225.
267Ibid.
268Ibid.
269Ibid, p. 231, para 28.
270Ibid., p. 226.
271Ibid.
112 D. Müller
rules existed. The Court found that:
The 1858 Treaty of Limits completely defines the rules
applicable to the section of the San Juan River that is in
dispute in respect of navigation. Interpreted in the light
of the other treaty provisions in force between the
Parties, and in accordance with the arbitral or judicial
decisions rendered on it, that Treaty is sufficient to settle
the question of the extent of Costa Rica’s 272 right of free
navigation which is now before the Court.
Nevertheless, the Court acknowledged that the specific
disputed issue was not previously decided upon by President
Cleveland or the Central American Court of Justice. In
particular, the former ruled only on the issue of contested
interpretation submitted to him, of which the issue before the
Court was not part. The Central American Court of Justice
also did not pronounce on the scope of Costa Rica’s right of
free navigation.273
The Court recognized that the issue brought before it by
Costa Rica rested on the interpretation of Article VI of the
1858 Treaty, and more specifically on the expression ‘libre
navegación [...]con objetos de comercio’. Nicaragua suggested that
274
these terms needed to be interpreted narrowly and meant

‘with articles of trade'; Costa Rica's right of free navigation
was, according to Nicaragua, limited to ‘the transport of
goods intended to be sold in a commercial exchange’. 275Costa
Rica proposed that the expression meant ‘for the purposes of
commerce’ and therefore had ‘the broadest possible scope,
and in any event encompasses not only the transport of
goods but also the transport of passengers, including
tourists’.276
In order to interpret the disputed provision of the 1858
Treaty, the Court relied on customary law of treaty
interpretation codified in Articles 31 and 32 of the
Vienna Convention,95reaffirming its now well-established case
law.96The Court added:
Consequently, neither the circumstance that Nicaragua is
272Ibid., p. 233, para 36.
273 Ibid., p. 235, para 41 and p. 238, para 49.
274Ibid., p. 235, para 42.
275"'Ibid., p. 236, para 45.
276Ibid.
Costa
not aRica
party to the Vienna Convention on the Law of 113
Treaties nor the fact that the treaty which is to be
interpreted here considerably pre-dates the drafting of
the said Convention has the effect of preventing the
Court from referring to the principles of interpretation set
forth in Articles 31 and 32 of the Vienna Convention. 97
The Court considered that the interpretation suggested by

Nicaragua rendered the sentence meaningless, whereas the
interpretation proposed by Costa Rica gave the sentence a
coherent meaning. It therefore concluded that the ‘literal
analysis of the sentence containing the words requiring
interpretation leads to one of the proposed meanings [i.e.,
the meaning proposed by Costa Rica] being preferred over
the other’.98Article VI of the 1858 Treaty referred in the
opinion of the Court to free navigation ‘for the purposes of
commerce’. The Court confirmed its solution by additional
arguments. It found some significance in the use of the same
word (‘con objetos’) in other provisions of the 1858 Treaty, and
in the use of different terms (‘articulos de comercio’) in the text of
an instrument negotiated between Costa Rica and Nicaragua
in 1857, but which never entered into force.99Moreover, the
Court pointed out that both parties had translated the
disputed expression as ‘for the purposes of commerce’ in the
translations prepared by Costa Rica and Nicaragua for the
Cleveland Arbitration. It added:
By itself, this argument is undoubtedly not conclusive,
because the only authoritative version of the instrument
is the Spanish one and at the time the Parties might have
made the same mistake in translation, which cannot be
treated as an implicit amendment of the 1858 Treaty. It
is also no doubt true that Nicaragua might have paid
insufficient heed to the meaning of the term “objetos de
comercio”, which was not at issue in the questions submitted
to the arbitrator; this could be the explanation for a
translation done by it in haste. It nonetheless remains
the case that this concurrence, occurring relatively soon
after the Treaty was concluded, is a significant indication
that at the time both Parties understood “con objetos de comercio”
to mean “for the purposes of commerce”. 100
95
UNTS, Vol. 1155, p. 331.
96
Navigational and Related Rights (Judgment), supra n. 4, p. 231, para 27. See also Maritime
Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment of 2 February
2017, para 63; Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia
114 D. Müller
beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 17 March 2016, para 33; Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Merits, Judgment, ICJ Reports 2007, pp. 109-10, para 160; Territorial Dispute (Libyan Arab
Jamahiriya/Chad), Judgment, ICJ Reports 1994, pp. 21-2, para 41; Oil Platforms (Islamic Republic of
Iran v. United States of America), Preliminary Objections, Judgment, ICJ Reports 1996, p. 812, para
23.
97
Navigational and Related Rights (Judgment), supra n. 4, p. 237, para 47.
98
Ibid., p. 239, para 52.
99
Ibid., pp. 239-240, para 55.
100
Ibid., p. 240, para 56.
Yet, the Court still had to interpret the term ‘comercio’ or
‘commerce’. It neither accepted the rather narrow meaning
limiting the word to the trade of goods as proposed by
Nicaragua, nor the all-encompassing interpretation suggested
by Costa Rica to include ‘movement and contact between
inhabitants of the villages on the Costa Rican bank of the San
Juan River, and the use of the river for purposes of navigation
by Costa Rican public officials providing the local population
with essential services, in areas such as health, education and
security’.277
In respect of the latter, the Court applied the principle of
effet utile: it pointed out that were Costa Rica’s interpretation ‘to
be accepted, the result would be to bring within the ambit of
“navigation for the purposes of commerce” all, or virtually all,
forms of navigation on the river. If that had been the intent of
the parties to the Treaty, it would be difficult to see why they
went to the trouble of specifying that the right of free
navigation was guaranteed “for the purposes of commerce”,
given that this language would have had virtually no effect’. 278
But the Court also did not accept Nicaragua’s narrow
interpretation which was based on the alleged meaning of the
term ‘commerce’ when the 1858 Treaty was negotiated. The
Court favoured an evolutionary interpretation of the generic
term. It found:
It is true that the terms used in a treaty must be
interpreted in light of what is determined to have been
the parties’ common intention, which is, by definition,
contemporaneous with the treaty’s conclusion. [...]
This does not however signify that, where a term’s
277Ibid., p. 241, para 59.
278Ibid., p. 241, para 61.
Costa Rica is no longer the same as it was at the date of 115
meaning
conclusion, no account should ever be taken of its
meaning at the time when the treaty is to be interpreted
for purposes of applying it. [...] [T]here are situations in
which the parties’ intent upon conclusion of the treaty
was, or may be presumed to have been, to give the
terms used — or some of them — a meaning or content
capable of evolving, not one fixed once and for all, so as
to make allowance for, among other things,
developments in international law. In such instances it is
indeed in order to respect the parties’ common intention
at the time the treaty was concluded, not to depart from
it, that account should be taken of the meaning acquired
by the terms in question upon each occasion on which
the treaty is to be applied.279
Given the nature of the regime established by the 1858
Treaty, the Court held that the parties intended in 1858 to
give an evolving meaning to the term ‘comercio’ or ‘commerce’,
such that it needed to be given the meaning as at the time
the treaty was being interpreted. Therefore, in the opinion of
the Court, the free navigation defined under Article VI of the
1858 Treaty was limited to ‘the transport of persons as well
as the transport of goods, as the activity of transporting
persons can be commercial in nature nowadays’. The Court
added that a ‘decisive consideration in this respect is whether
a price (other than a token price) is paid to the carrier — the
boat operator — by the passengers or on their behalf. If so,
then the carrier’s activity
is commercial in nature and the navigation in question must be
regarded as “for the purposes of commerce” within the meaning
of Article VI.’280
On this basis, the Court concluded that navigation,
including the transport of goods for trade or transport of
persons against a price, was subject to the freedom of
navigation under Article VI of the 1858 Treaty. This was
independent of the question whether such transport was
carried out by private or public vessels.281On the other hand,
‘as a general rule, the navigation of Costa Rican vessels for
the purposes of public order activities and public services with
no object of financial gain, in particular police vessels, lies
279Ibid., p. 242, paras 63-64.
280Ibid., p. 244, para 71.
281Ibid., p. 247, para 80.
116 D. Müller
outside the scope of Article VI of the 1858 Treaty, with the
exception of revenue service vessels, the question of which
was settled by the 1888 arbitration’.282
Although the Court found that in principle Article VI of the
1858 Treaty guaranteed only freedom of navigation for
purposes of commerce, the Court sensibly broadened the
scope of Costa Rica’s freedom of navigation. With respect to
the navigation of vessels belonging to the inhabitants of the
villages on the Costa Rican bank of the river in order to meet
the basic requirements of everyday life, i.e., for non-
commercial purposes, the Court found that no provision of the
1858 Treaty guaranteed freedom of non-commercial
navigation. Yet, it considered that such a right to navigate
might nevertheless be implied in other provisions of the treaty
that do not expressly relate to navigation. The Court, taking
the 1858 Treaty as a whole and relying in particular on the
specific river border agreed upon, considered that:
it cannot have been the intention of the authors of the
1858 Treaty to deprive the inhabitants of the Costa Rican
bank of the river, where that bank constitutes the
boundary between the two States, of the right to use the
river to the extent necessary to meet their essential
requirements, even for activities of a non-commercial
nature, given the geography of the area. While choosing,
in Article II of the Treaty, to fix the boundary on the river
bank, the parties must be presumed, in view of the
historical background to the conclusion of this Treaty and
of the Treaty’s object and purpose as defined by the
Preamble and Article I, to have intended to preserve for
the Costa Ricans living on that bank a minimal right of
navigation for the purposes of continuing to live a normal
life in the villages along the river. The Court considers
that while such a right cannot be derived from the
express language of Article VI, it can be inferred from the
provisions of the Treaty as a whole and,283in particular, the
manner in which the boundary is fixed.
The Court established, on the same implied-right argument,
freedom of navigation for public vessels delivering essential
services to the Costa Rican population, i.e., for official vessels
that ‘in specific situations are used solely for the purpose of
providing that population with what it needs in order to meet
282Ibid., para 83.

283Ibid., p. 246, para 79.
Costa Rica 117
the necessities of daily life’.284Therefore, the Court not only
circumscribed the exact scope of free navigation ‘for the
purposes of commerce’, it also created a right of navigation
outside the scope of Article VI of the 1858 Treaty that was
implied from the specific border regime. The very fact that the
boundary ran on the Costa Rican bank of the San Juan, that
was already populated when the boundary was determined in
1858, was sufficient for the Court to create such an implied
right to use the river for everyday necessities irrespective of
the Nicaraguan sovereignty over the River.
3.1.2 Nicaragua’s Regulatory Powers in Respect of the San Juan River
The Court also addressed the question of whether and to

what extent Nicaragua being the sovereign over the San Juan
River could exercise freely its regulatory powers and impose
regulations and restrictions on the use of river. It goes
without saying that in those parts of the San Juan River in
which Costa Rica does not enjoy rights of navigation, and
outside the scope of the rights of navigation, Nicaragua
enjoys its plain and exclusive territorial sovereignty. This
includes the right to regulate. However, in those parts of the
river where Costa Rica enjoys freedom of navigation under
the 1858 Treaty, the situation is more complex. Costa Rica
submitted that ‘Nicaragua’s sovereignty over the San Juan
must be seen as a part — an important part — of the fluvial
regime established in 1858 and that the regulations enacted
by Nicaragua must not infringe Costa Rica’s perpetual right of
free navigation’.285Nicaragua insisted on the existence of its
right to regulate, but agreed that such a right was limited in
its scope by Costa Rica’s right to navigate the San Juan River.
The Court relying largely on the concordant arguments of
the parties, found that ‘Nicaragua has the power to regulate
the exercise by Costa Rica of its right to freedom of
navigation under the 1858 Treaty. That power is not
unlimited, being tempered by the rights and obligations of the
284Ibid, p. 248, para 84.
285Ibid., p. 249, para 86.
118 D. Müller
Parties.’286More specifically, a regulation imposed by
Nicaragua must not render the freedom of navigation impos-
sible; must not be prohibited by the 1858 Treaty; must have a
legitimate purpose; must not be discriminatory or
unreasonable.287The Court also considered that, although no
provision of the 1858 Treaty specifically imposed such an
obligation:
Nicaragua is under an obligation to notify Costa Rica of
the regulations which it makes regarding the navigational
regime on the San Juan River. That obligation does not
however extend to notice or consultation prior to the
adoption by Nicaragua of such regulations.288
On this general basis, the Court addressed the regulations
and measures adopted by Nicaragua and challenged by Costa
Rica. It considered that Nicaragua did not act in conformity
with its obligations in requiring visas and tourist cards 289or the
payment of charges in respect of vessels, operators or
passengers exercising their right of free
navigation.290However, the Court considered it reasonable and
lawful for Nicaragua to impose navigational timetables, 291rules
on the flying of its own flag on the San Juan
River,292requirements to stop and identify vessels and
passengers,293and the issuance of departure clearance
certificates for vessels.294
The Court’s 2009 Judgment in the Navigational and Related Rights
dispute added some important elements to the conventional
regime established by the 1858 Treaty some 150 years
earlier. It not only gave an extensive or evolutionary meaning
to the freedom of navigation granted under Article VI of the
1858 Treaty. The Court also recognized, if not created, an
additional right of navigation that, in the opinion of the Court,
was inherent in the fact that the boundary ran along the
Costa Rican bank of the River.
286Ibid., para 87.

287 Ibid, pp. 249-250, para 87(1)-(5).
288Ibid., p. 252, para 97.
289Ibid., pp. 254-259, paras 111-119.
290Ibid., pp. 259-261, paras 120-124.
291Ibid., pp. 261-262, paras 125-129.
292Ibid, pp. 262-263, paras 130-132.
293 Ibid., pp. 254-255, paras 103-107.
111
294Ibid., pp. 255-256, paras 108-110.

Costa Rica
3.2 The Renewal of the Question of the Course of the Land
119
Boundary: The 2015 Judgment
On 18 November 2010, Costa Rica instituted new proceedings

against Nicaragua before the Court, alleging that Nicaragua
had invaded and occupied Costa Rican territory, dug a
channel (‘canos’) thereon and conducted works in respect of
the San Juan River in violation of its international obligations.
The area in question is situated in the eastern part of the
Nicaragua-Costa Rica boundary as defined by the 1858
Treaty, in the vicinity of Isla Portillos. Costa Rica alleged that
the area was part of its territory under the 1858 Treaty as
interpreted in the Cleveland Award and the Alexander Award.
Therefore, Costa Rica submitted that Nicaragua violated its
territorial integrity.295Costa Rica further submitted that ‘this
violation of sovereignty was exacerbated by Nicaragua’s
establishment of a military presence in the area and by its
excavation in 2013 of two other canoslocated near the northern
tip of Isla Portillos’.296
Nicaragua claimed that these activities were carried out in
its territory because it ‘enjoys full sovereignty over the
canojoining Harbor Head Lagoon with the San Juan River
proper, the right bank of which constitutes the land boundary
as established by the 1858 Treaty as interpreted by the
Cleveland and Alexander Awards’.297
The Court has issued orders indicating provisional measures
at the request of Costa Rica. On 8 March 2011, the Court
ordered that ‘[e]ach Party shall refrain from sending to, or
maintaining in the disputed territory, including the cano, any
personnel, whether civilian, police or security’.298It authorized
Costa Rican civilian personnel to enter into the disputed area
‘in so far as it is necessary to avoid irreparable prejudice
being caused to the part of the wetland where that territory is
295Certain Activities; Construction of a Road (Judgment), supra n. 6, para 65.

296Ibid., para 66.
297Ibid., para 68.
298Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, Order of 8 March 2011, ICJ Reports 2011, p. 27, para 86(1).
120 D. Müller
situated’.299In its Order of 22 November 2013, the Court
reiterated the measures ordered in 2011 and added that
‘Nicaragua shall refrain from any dredging and other activities
in the disputed territory, and shall, in particular, refrain from
work of any kind on the two new canos’.300The Court also
decided that Nicaragua had to fill a trench north of the
eastern cano within a period of 2 weeks,301and had to remove
its personnel from the dispute area and to prevent any further
entry into the area.302
On 22 December 2011, Nicaragua instituted proceedings
against Costa Rica in respect of alleged breach by Costa Rica
of both procedural and substantive obligations in connection
with the construction of a road along the San Juan River.
Although Nicaragua relied in part on the 1858 Treaty, in
particular in order to create an obligation to consult and notify
which the Court later rejected,303most of the claims made by
Nicaragua were based on general international law and
several multilateral conventions concerning the protection of
the environment and the conduct of environmental impact
assessments in transborder projects. At the request of
Nicaragua, the Court decided to join both cases. In two orders
of 17 April 2013,304305the Court recalled that under Article 47
of the Rules of Court, it enjoys
a broad margin of discretion. Where the Court, or its
predecessor, has exercised its power to
join proceedings, it has done so in circumstances where
joinder was consonant not only
with the
butprinciple of the
the need
soundforadministration
also with judicial 129 of justice
economy.
The Court underlined that the two cases involve the same
Parties and relate broadly speaking to the same area, i.e., the
299Ibid., p. 27, para 86(2).

30024Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua);
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Provisional Measures, Order of 22 November 2013, ICJ Reports 2013, p. 369, para 59(2)(A).
301Ibid., para 59(2)(B).
302Ibid, paras 59(2)(C) and 59(2)(D).
303l21Certain Activities; Construction of a Road (Judgment), supra n. 6, paras 169-171.
304Certain Activities (Joinder), supra n. 5 and Construction of a Road (Joinder),
n. 5. See the contribution of Sobenes E below.
supra 129
305 Ibid., respectively p. 170, para 18 and p. 187, para 12.
Costa Rica 121
border area along the San Juan River.306It was satisfied that
both cases concern works in the vicinity of the San Juan River
and involved issues of the environment and the free
navigation on the river, as well as similar substantive legal
provisions, including the 1858 Treaty.307The Court concluded:
A decision to join the proceedings will allow the Court to
address simultaneously the totality of the various
interrelated and contested issues raised by the Parties,
including any questions of fact or law that are common to
the disputes presented. In the view of the Court, hearing
and deciding the two cases together will have significant
advantages. The Court does not expect any308undue delay
in rendering its Judgment in the two cases.
The Road case is however less interesting for the purpose of
the 1858 Treaty. Although invoked by Nicaragua, the 1858
Treaty played almost no role in the decision of the Court. The
Court focused on obligations under general international law
that that would be applicable in any event to transborder
activities, irrespective of the specific legal regime established
under the 1858 Treaty. The Court ruled that ‘Costa Rica has
violated its obligation under general international law by
failing to carry out an environmental impact assessment
concerning the construction of Route 1856’,309and rejected all
other claims made by Nicaragua.310In this respect, the Road
case does not significantly add to the 1858 Treaty saga. At
best, it confirms that this Treaty does not regulate all and
every aspect of the relations between Nicaragua and Costa
Rica along the San Juan River boundary.
The Certain Activities case is different. The Court had to
determine to which of the two States the disputed area
belonged and, in order to do that, it needed to determine the
exact course of the land boundary between both States. This
involved the interpretation of the 1858 Treaty which
determined the land boundary, taking into account the
306130Ibid., respectively p. 170, para 19 and p. 187, para 13.
307Ibid., respectively p. 170, paras 20-22 and p. 187, paras 14-
16.
308Ibid., respectively pp. 170-171, para 23 and pp. 187-188, para
17.
309Certain Activities; Construction of a Road (Judgment), supra n. 6, paras 162 and 229(6).
310Ibid., para 229(7).
122 D. Müller
subsequent interpretations in the Cleveland Award and the
Alexander Awards. After extensively reviewing the 1858
Treaty, the Cleveland Award and the most important of the
Alexander Awards, the Court concluded:
[T]he 1858 Treaty and the awards by President Cleveland
and General Alexander lead to the conclusion that Article
II of the 1858 Treaty, which places the boundary on the
“right bank of the [...] river”, must be interpreted in the
context of Article VI [...], which provides that “the
Republic of Costa Rica shall [...] have a perpetual right of
free navigation on the [...] waters [of the river] between
[its] mouth [...] and a point located three English miles
below Castillo Viejo”. As General Alexander observed in
demarcating the boundary, the 1858 Treaty regards the
river, “in average condition of water”, as an “outlet of
commerce” [...] In the view of the Court, Articles II and
VI, taken together, provide that the right bank of a
channel of the river forms the boundary on the
assumption that this channel is a navigable “outlet of
commerce”. Thus, Costa Rica’s rights of navigation are
linked with sovereignty over the right bank, which has
clearly been311
attributed to Costa Rica as far as the mouth
of the river.
On this basis, the Court examined the arguments of the
parties. Nicaragua argued that, as a result of natural
modifications in the disputed territory, the ‘channel’ to which
General Alexander referred in his first Award is now the cam
that Nicaragua dredged in 2010 to improve its navigability.
Costa Rica alleged that this cano is an artificial one. In the
opinion of the Court, the evidence submitted did not sustain
Nicaragua’s contention of the previous existence of the cano
that it had dredged.312Moreover, the Court noted that ‘[i]f
Nicaragua’s claim were accepted, Costa Rica would be
prevented from enjoying territorial sovereignty over the right
bank of the San Juan River as far as its mouth, contrary to what is
stated in the 1858 Treaty and in the Cleveland Award’. 313
For these reasons, the Court found that ‘the right bank of
the cam which Nicaragua dredged in 2010 is not part of the
boundary between Costa Rica and Nicaragua, and that the
territory under Costa Rica’s sovereignty extends to the right
bank of the Lower San Juan River as far as its mouth in the
311Ibid., para 76.
312Ibid., para 81.
313 Ibid., para 91—emphasis added.
131
Costa Rica 123
Caribbean Sea. Sovereignty over the disputed territory thus
belongs to Costa Rica.’314Consequently, Nicaragua’s activities
were carried out in Costa Rica’s territory and constituted a
violation of the territorial sovereignty of Costa Rica.
The Court’s 2015 Judgment in Certain Activities constitutes a
valuable addition and precision of the course of the boundary
between Costa Rica and Nicaragua fixed more than 150 years
ago in the 1858 Treaty. Nevertheless, the Judgment is not the
end of the long lasting judicial and arbitral saga. Indeed, the
Court did not dwell with ‘precise location of the mouth of the
[San Juan River]’ and ‘[n]either Party requested the Court to
define the boundary more precisely with regard to this
coast’.315The end-point of the common land boundary which is
likely to be the starting point of the maritime delimitation
between Costa Rica and Nicaragua is currently pending in The
Hague316and is still an open issue. Costa Rica instituted new
proceedings before the Court in 2017 in order to decide this
issue once for all. This case was joined to the pending
maritime delimitation dispute, although the latter was already
in a rather advanced stage. The joint cases are currently
pending.
*
The Saga of the 1858 Treaty is a perfect example of a

treaty negotiated in order to solve an existing dispute that
created, throughout time, more and more disputes and
controversies between its Parties. The solution of a boundary
fixed on the bank of a river rather than in the middle of the
river might have been a suitable solution in 1858 satisfying
the respective aspiration of Costa Rica and Nicaragua. But
aspirations and claims change over time. Until now, the 1858
Treaty proved to provide solutions, as far as possible and
within its scope of application, even if, at times, the Court had
to re-actualise the terms of the treaty to adapt to the present-
day necessities and circumstances. The 1858 Treaty as a
robust legal regime and the firm commitment of Costa Rica
and Nicaragua to solve their disputes through peaceful,
314Ibid., para 92.

315Ibid., para 70.
316Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua).
124 D. Müller
judicial settlement constitute a sound combination to find
suitable solution for both States controversies.
Daniel Müller has

worked as counsel and advocate for a variety of
States, including Nicaragua, before the International Court of
Justice, the International Tribunal for the Law of the Sea and
arbitral tribunals. Daniel holds a PhD from the University Paris
Nanterre and the HumboldtUniversität zu Berlin. He is
admitted at the Paris bar and practices in public international
law and international arbitration at Freshfields Bruckhaus
Deringer. He also teaches public international law and
European Union law at the University Paris Nanterre and is a
member of the Centre de Droit international in Nanterre.
The Territorial and Maritime Dispute (Nicaragua
v. Colombia) and Its Implications for Future
Maritime Delimitations in the Caribbean
Sea and Elsewhere
Lawrence H. Martin and Yuri B. Parkhomenko
Abstract The Caribbean Sea is a geographically complex area

with rich natural resources and important navigation routes.
The coastal States have already achieved considerable
progress in delimiting their maritime boundaries in this region.
And yet many maritime boundaries still remain outstanding.
As Caribbean States seek to resolve their ongoing maritime
disputes, this chapter shows that they may find instructive
guidance on how to reach equitable solutions in the
unanimous judgment by the International Court of Justice in
Territorial and Maritime Dispute (Nicaragua v. Colombia). This chapter
analyzes the methodologies and reasoning the Court
employed to draw the maritime boundary between the two
Parties that allowed the coasts of both State to produce their
effects in terms of maritime entitlements in a reasonable and
mutually balanced way. Based on that analysis,
Lawrence H. Martin was part of the legal team representing the Republic of Nicaragua in the
following cases: Territorial and Maritime Dispute (Nicaragua v. Colombia); Dispute regarding
Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along
the San Juan River (Nicaragua v. Costa Rica); Question of the Delimitation of the Continental Shelf
between Nicaragua and Colombia (Nicaragua v. Colombia); Alleged Violations of Sovereign Rights
and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia); Delimitation in the Caribbean
Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla
Portillos (Costa Rica v. Nicaragua). The views and opinions expressed in this chapter are those of the
authors and do not necessarily reflect the views and opinions of the Republic of Nicaragua.
Yuri B. Parkhomenko was part of the legal team
representing the Republic of Nicaragua in the following cases:
Territorial and Maritime Dispute (Nicaragua v. Colombia); Question of the Delimitation of the
Continental Shelf between Nicaragua and Colombia (Nicaragua v. Colombia); Alleged Violations
of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia);
Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land
Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua). The views and
opinions expressed in this chapter are those of the authors
and do not necessarily reflect the views and opinions of the 1
Republic of Nicaragua. The authors are grateful to Robin
Cleverly from Marbdy Consulting Limited for the maps he 2
5
126 L.H. Martin and Y.B. Parkhomenko
prepared for this chapter.
L.H. Martin (*) • Y.B. Parkhomenko (*)
Foley Hoag LLP, Washington, DC, USA
e-mail: LHM@foleyhoag.com;yparkhomenko@foleyhoag.com©
Springer International Publishing AG 2018
International Court of Justice, DOI 10.1007/978-3-319-62962-9_6
the chapter draws out conclusions on applicable law, methods
of delimitation, relevant circumstances and treatment of
islands that may become pertinent to future maritime
delimitations in the Caribbean Sea and elsewhere.
Contents
1 Introduction.................................................................................................................................... 114
2 The Geographical Circumstances.................................................................................................. 117
3 The Delimitationof the Maritime Boundary.................................................................................. 119
3.1 Determining Relevant Coasts and Relevant Area............................................................. 119
3.2............................................................................................................................................... The
Application of Delimitation Methodology........................................................................................ 123
4 Conclusions.................................................................................................................................... 138
References......................................................................................................................................... 139
1 Introduction
Located between the landmasses of North and South America,

the Caribbean Sea is an arm of the Atlantic Ocean partially
enclosed to the north and east by the islands of the West
Indies, and bounded to the south and west by South and
Central America. The Caribbean Sea is one of the largest seas
in the world, measuring approximately 2,754,000 km 317318
(1,063,000 square miles). It is also one of the most
geographically complex areas with rich natural resources and
important navigation routes.
Within the Caribbean Sea region lie 9 continental States, 112
island States,27 of which claim archipelagic status,319and 16
317Mexico, Belize, Guatemala, Honduras, Nicaragua, Costa Rica,

Panama, Colombia, and Venezuela.
318Antigua and Barbuda, Barbados, Cuba, Dominica, Dominican
Republic, Grenada, Haiti, Jamaica, St Kitts and Nevis, St Vincent
and Grenadines, St Lucia, and Trinidad and Tobago.
319Antigua and Barbuda, Dominican Republic, Grenada, St Kitts
and Nevis, St Vincent and Grenadines, and Trinidad and Tobago.
The Territorial and Maritime Dispute (Nicaragua v. Colombia )... 127
islands linked to France,320the Netherlands,321United
Kingdom,322and United States.323The continental coasts of
Venezuela, Colombia, and Panama frame the Caribbean Sea
to the south and Costa Rica, Nicaragua, Honduras,
Guatemala, Belize, and the Yucatan Peninsula of Mexico
bound it to the west. To the north and east it is bounded by
the Greater Antilles islands of Cuba, Hispaniola, Jamaica, and
Puerto Rico and by the Lesser Antilles, consisting of the island
arc that extends from the Virgin Islands in the north-east to
the islands of Trinidad and Tobago, off the Venezuelan coast,
in the south-east. The littoral states and islands are located in
relation to each other in such a way that leaves no high seas
areas (those beyond 200 nm) within the Caribbean Sea.
All coastal States in the Caribbean region, with the
exception of Colombia and Venezuela, are parties to the 1982
United Nations Convention on the Law of the Sea.324As
regards claims to maritime jurisdiction, it was observed that
the Caribbean region ‘boasts a near complete set of claims to
320Guadeloupe, Martinique, and St. Barthélemy. The French

Islands of Guadeloupe and Martinique are Overseas
Departments. St. Barthelemy and the northern part of the
French/Dutch island of St-Martin/Sint Maarten are French
overseas collectivites.
321Aruba, Bonaire, Curacao, Saba, St. Eustatius, and Sint
Maarten. Aruba, Curacao, and Sint Maarten are constituent
countries forming the Kingdom of the Netherlands. Bonaire,
St. Eustatius, and Saba are special municipalities of the
Netherlands.
322Anguilla and British Virgin Islands, Cayman Islands,
Montserrat, and Turks and Cacaos Islands. The islands are
United Kingdom overseas territories.
323United States Virgin Islands and Puerto Rico. They are
unincorporated United States territories.
324The International Court of Justice held that the UNCLOS
provisions governing delimitation of the exclusive economic
zones and continental shelf, and the provisions setting forth
the regime of islands are declaratory of customary
international law. Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits,
Judgment, ICJ Reports 2012, p. 624, paras 138-139 (hereinafter ‘Nicaragua
v. Colombia (Merits)’).
12 nautical miles territorial sea and 200 nautical miles
exclusive economic zones limits measured from baselines
along the coast.’325A number of Caribbean States also made
submissions to the United Nations Commission on the Limits
of the Continental Shelf.326
In the Caribbean region, considerable progress has already
been achieved in delimiting maritime boundaries either
through negotiations327or by recourse to third-party
compulsory procedures.328However, many maritime
boundaries in this region still remain to be delimited (see Fig.
1 depicting delimited maritime boundaries and calculated
equidistance lines of outstanding delimitations).329As States
seek to resolve remaining maritime boundary disputes in this
region, they may find
325Freestone and Schofield (2015), p. 681 and pp. 677-679,

Table 30.1 ‘Maritime claims in the Caribbean Sea and Gulf of
Mexico’. Belize claims a territorial sea of 3 nautical miles in the
Gulf of Honduras.
326These States include Bahamas, Barbados, France (on
behalf of the French Antilles and French Guiana), Nicaragua,
Suriname, and Trinidad and Tobago. See Submissions,
through the Secretary- General of the United Nations, to the
Commission on the Limits of the Continental Shelf, pursuant
to article 76, paragraph 8, of the UNCLOS of 10 December
1982. Available at
http://www.un.org/Depts/los/clcs_new/commission_submissio
ns.htm.
327For comprehensive reports on completed and outstanding
maritime delimitations in the Caribbean sea, see Nweihed (1996),
Dundas (2005) and Freestone and Schofield (2015).
328See Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the
delimitation of the exclusive economic zone and the continental shelf between them, Award, 11 April
2006, RIAA, Vol. XXVII, pp. 147-251 (hereinafter ‘Barbados/Trinidad and Tobago (Award)’);
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua
v. Honduras), Judgment, ICJ Reports 2007, p. 659 (hereinafter ‘Nicaragua v. Honduras (Judgment)’);
Nicaragua v. Colombia (Merits), supra n. 8.
329See Nweihed (1996) and Dundas (2005).
116
L.H. Martin and Y.B. Parkhomenko
Fig. 1 The Caribbean: maritime boundaries
instructive guidance on how to reach equitable solutions in the

unanimous Judgment of the International Court of Justice
(hereinafter ‘ICJ’ or ‘the Court’) in Territorial and Maritime Dispute
(Nicaragua v. Colombia)}4
The Judgment, in which the two distinguished ad hoc Judges
appointed by the Parties joined with 14 sitting Judges to
produce a rare 16-0 decision, in many ways constitutes the
most interesting ruling to date by the Court on the delimitation
of maritime boundaries. What makes the Judgment so notable
is the Court’s ingenuity in applying different methods of
maritime delimitation to achieve an equitable solution.
To appreciate the equitable nature of the delimitation
solution unanimously fashioned by the Court, Sect. 2describes
the unique geographical circumstances of the case, and Sect. 3
discusses the methodologies and reasoning the Court
employed to draw the maritime boundary between the Parties
in the area within 200 nautical miles of Nicaragua’s coast.
2 The Geographical Circumstances
The area within which this delimitation was carried out lies in
the western Caribbean Sea (see Fig. 2).330331The complexity of
the geographic circumstances speaks for itself. The
delimitation was not between the mainland coasts of two
States; it was between Nicaragua’s long mainland coast—the
dominant geographic feature in the area—and several small
Colombian islands lying in front of the Nicaraguan coast, and
far removed from Colombia’ s mainland.
The largest of the islands, and the only ones that were
populated, were San Andres, Providencia and Santa Catalina.
San Andres is approximately 105 nautical miles from
Nicaragua. Providencia and Santa Catalina are located some
47 nautical miles north-east of San Andres and approximately
125 nautical miles from Nicaragua. All three islands are
330Nicaragua v. Colombia (Merits), supra n. 8.

331This figure corresponds to sketch-map No. 1 depicted in
the Court’s Judgment at p. 16.
approximately 380 nautical miles from the mainland of

Colombia.
All of the other insular features were tiny and uninhabitable.
Starting from the south-west and moving to the north-east,
there were the cays of Alburquerque, East- Southeast,
Roncador and Serrana, and the bank of Quitasueno.
Colombia considered the west-facing coasts of its islands
and cays equivalent to a continuous coast stretching for over
100 nautical miles. In Colombia’s view, they blocked all access
for Nicaragua to the substantial areas lying to the east of the
islands and the 200 nautical-mile limit from Nicaragua’s coasts.
Nicaragua, on the other hand, argued that its extensive
mainland coast generated entitlements to an exclusive
economic zone (‘EEZ’) and continental shelf out to
1
118
«
^ Joint Re9_ime
J1_
Y Area
N (CoưJam
Honduras N
N
Nicaragua
L.H. Martin and Y.B. Parkhomenko

Venezuela
Fig. 2 Nicaragua/Colombia: the area to be delimited

200 nautical-mile line, which should not be cut off by
Colombia’s small, widely dispersed islands.332
3 The Delimitation of the Maritime Boundary
The task of the Court was to equitably delimit the maritime

area within 200 nautical miles of Nicaragua’s coast, where
both Nicaragua and Colombia had overlapping EEZ and
continental shelf entitlements.333As its first step, the Court
332The case was governed by customary international law
rather than the 1982 UNCLOS because, while Nicaragua is a
party to UNCLOS, Colombia is not. However, as the Court has
made clear in prior cases, UNCLOS and customary law are
similar in regard to the entitlements of coastal States and the
delimitation of maritime boundaries within 200 nautical miles
of the coast (see e.g., Maritime Delimitation and Territorial Questions between Qatar
and Bahrain (Qatar v. Bahrain), Merits, Judgment, ICJ Reports 2001, p. 91, paras 167 et
seq. (hereinafter ‘Qatar v. Bahrain (Merits)’) and Maritime Delimitation in the
Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, pp. 101-103, para 120
(hereinafter ‘Romania v. Ukraine (Judgment)’)) Under both the
Convention and customary law, coastal States are entitled to
declare a territorial sea of up to 12 nautical miles from their
coastal baselines, and an exclusive economic zone and
continental shelf of up to 200 nautical miles; and, where the
entitlements of opposite or adjacent coastal States overlap,
delimitation is to be effected either by agreement of the
parties, or in a manner that produces an equitable solution
(Articles 3, 57, 74, 76 and 83 of the 1982 UNCLOS).
333In addition to delimiting the continental shelf within 200
nautical miles between the Nicaraguan mainland coast and
Colombian islands, Nicaragua also requested the Court to
delimit the continental shelf between the mainland coasts of
both States, arguing that Nicaragua’s continental margin
extends beyond 200 nautical miles and overlaps with
Colombia’s 200-nautical mile entitlement to the continental
shelf as measured from Colombia’s mainland coast. Because at
the time of those proceedings Nicaragua had yet to make its
identified the Parties’ ‘relevant coasts;’ that is, the coasts that
generated maritime entitlements in the area to be delimited,
as well as the ‘relevant area’ where these entitlements
overlapped and delimitation was required. The Court then
proceeded to apply its now-customary three-step delimitation
methodology.
3.1 Determining Relevant Coasts and Relevant Area
The maritime entitlements of a coastal State are based on the

principle that the land dominates the sea through the
projection of its coast seaward.334It is therefore necessary in
each delimitation case to identify the coasts that are relevant
to the
final submission to the CLCS in respect of the continental shelf

beyond 200 nautical miles, the Court declined Nicaragua’s
request. The delimitation of that area is now the subject of a
separate case over which the Court recently ruled it has
jurisdiction. See Question of the Delimitation of the Continental Shelf between Nicaragua
and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia),
Preliminary Objections, Judgment of 17 March 2016.
334See Romania v. Ukraine (Judgment), supra n. 16, p. 89, para 77;
Nicaragua v. Colombia (Merits), supra n. 8, p. 674, para 140.
delimitation; namely, ‘those coasts the projections of which
overlap, because the task of delimitation consists in resolving
the overlapping claims by drawing a line of separation of the
maritime areas concerned.’335
As the Court explained, identification of the relevant coasts
is necessary for two different but closely related legal reasons:
first, to determine where overlapping entitlements exist and,
second, to check in the final stage of delimitation whether any
disproportionality exists when the ratios of the coastal lengths
of each State are compared with the ratios of the maritime
areas falling on either side of the delimitation line. 336
For Nicaragua, the Court found that the relevant coast was
its entire Caribbean coast, with the exception of the short
stretch of coast near Punta de Perlas that faces due south and
thus does not project into the area of overlapping
entitlements. The Court also considered that Nicaragua’s
entitlement to a 200 nautical-mile EEZ and continental shelf
had to be measured from the islands fringing the Nicaraguan
coast, the Corn Islands in the south and the Miskitos Cays in
the north, because ‘fringing islands’ are an integral part of a
mainland coast. At the same time, the Court found that those
islands did not add to the length of Nicaragua’s relevant coast,
because their east-facing coasts are parallel to the mainland. 337
To identify Colombia’s relevant coast, the Court looked only
to the insular features facing Nicaragua’s coast, since only
those islands generated maritime entitlements that overlapped
with Nicaragua’s.338The relevant Colombian coast thus
consisted of the coasts of San Andres, Providencia and Santa
Catalina Islands, and Alburquerque, East-Southeast, Roncador
and Serrana Cays.
335Nicaragua v. Colombia (Merits), supra n. 8, pp. 674-675, para 141.

336Romania v. Ukraine (Judgment), supra n. 16, para 78; Nicaragua v.
Colombia (Merits), supra n. 8, pp. 674-675, para 141.
337Nicaragua v. Colombia (Merits), supra n. 8, p. 678, para 145.
338Because Colombia’s mainland coast is located more than
400 nautical miles away from Nicaragua’s coast, maritime
entitlements it generates could not overlap with Nicaragua’s,
and thus the Colombian mainland coast was not a relevant
coastline for the delimitation in that case.
The Court accepted Colombia’s argument that the entire
coastline of each of these features, not merely the coasts
facing Nicaragua, had to be taken into account because islands
generate radial projections, which also extended to the east of
those islands. The Court disregarded Quitasueno, a small rock,
in determining Colombia’s relevant coast because its size is so
small that it ‘cannot make any difference to the length of
Colombia’s coast.’339
The Court found that the lengths of the relevant coasts
were 531 km for Nicaragua and 65 km for Colombia, a ratio of
approximately 8.2:1 in favor of Nicaragua.340
Once the relevant coasts were established, the next step
was to determine the relevant area, which is the area to be
delimited, consisting of that part of the maritime space in
which the potential maritime entitlements generated by the
relevant coastlines of the Parties overlap.341
Nicaragua and Colombia disagreed on the extent of the
relevant area. For Nicaragua, the relevant area necessarily
included all of the maritime space lying between its mainland
coast and Colombia’s islands, as well as the area east of the
islands all the way out to the 200 nm limits from Nicaragua’s
coast.
Colombia, for its part, tried to limit the relevant area to only
the space located between Nicaragua’s coast and Colombia’s
islands. In this way, Colombia hoped to reserve all of the
space east of its islands (but still within 200 nm of Nicaragua’s
coast) for itself. In Colombia’s view, its mid-sea islands
effectively constituted a wall that should prevent Nicaragua
from extending its maritime jurisdiction to their east. (See Fig.
3).
342
Colombia’s argument contradicted a long line of case law,

which included not only the Court’s jurisprudence,343but also

340Ibid., p. 678, para 145 and p. 680, para 153.
341Ibid., p. 683, paras 158-159.
the
Fig.Court’s Judgment
3 The relevant at p. 54.
area
343See e.g. Delimitation of the Maritime Boundary in the Gulf of Main Area (Canada/United States of
according
America), to Colombia
Judgment, ICJ Reports 1984, pp. 329-330, para 201 (hereinafter ‘Gulf of Maine
(Judgment)’); Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, ICJ Reports 1985, p. 46,
precedent from other international courts and arbitral
tribunals, to the effect that small islands should not block the
seaward projection of mainland coasts or otherwise cut off the
maritime entitlements generated by those coasts.344As the
Court explained, Nicaragua’s coast, including fringing islands,
projects maritime entitlements out at least to 200 nautical
miles. This entitlement extends east of Colombia’s islands,
where it overlaps with Colombia’s competing entitlements
derived from those islands. The Court thus determined that
‘the relevant area extends from the Nicaraguan coast to a line
in the east 200 nautical miles from the baselines from which
the breadth of Nicaragua’s territorial sea is measured.’ 345
To avoid affecting the interests of third States to the north
and to the south, the Court excluded from the relevant area
maritime areas where Nicaragua’s and
para 64 (hereinafter ‘Libya/Malta (Judgment)’); Continental Shelf (Tunisia/Libyan Arab Jamahiriya),

Judgment, ICJ Reports 1982, pp. 88-89, paras 128-129 (hereinafter ‘Tunisia/Libya (Judgment)’);
Romania v. Ukraine (Judgment), supra n. 16, pp. 109-110, para 149.
344See e.g. Delimitation of the Continental Shelf between France and the United Kingdom, Decision,
30 June 1977, RIAA, Vol. XVIII, p. 93, para 196 and p. 94, para 199 (hereinafter ‘Anglo-French
Continental Shelf (1977 Award)’); Dubai/Sharjah Border Arbitration, Award, 19 October 1981, ILR,
Vol. 91, pp. 676-677, paras 263 and 265 (hereinafter ‘Dubai/Sharjah (Merits)’); Delimitation of
Maritime Areas between Canada and France (St. Pierre et Miquelon), Decision, 10 June 1992, ILM,
Vol. 31, pp. 1169-1170, paras 67, 69 and 70 (hereinafter ‘St. Pierre and Miquelon (Award)’); Limits of
the Offshore Areas between Newfoundland and Labrador and Nova Scotia, Second Phase, Award, 26
March 2002, ILR, Vol. 128, paras 5.14-5.15 (hereinafter ‘Newfoundland/Nova Scotia (Award)’) and
Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the
Bay of Bengal, Judgment, 14 March 2012, paras 317-319 (hereinafter ‘Bangladesh/Myanmar
(Judgment)’). See also Bowett (1993), p. 151.
100 M
Serranilla
Jo nt
Regime
Af
ea
(Col/Jam)
5N HONDURAS
COLOMBIA
Miskito Cays
Quitasueño Serran a Cays
Roncador
Providencia
RELEVANT
AREA
an Andrés
Punta ESE Cays

de
Pedas Alộurquerque
Cíjys
COLOMBIA
PANAMA
COLOMBIA.
COSTARICA
DN
COSTARICA
PANAMA
Fig. 3 The relevant area

according to Colombia
Colombia’s entitlements overlapped areas claimed by Jamaica,
Panama and Costa Rica in agreements those States had
previously reached with Colombia. Thus defined, the relevant
area measured approximately 209,280 km230(see Fig. 4,
depicting the relevant area according to the Court). 346
3.2 The Application of Delimitation Methodology
In its prior decisions, the Court established a three-step

method to delimit overlapping entitlements in the EEZ and
continental shelf.347
In the first stage, a provisional delimitation line is
constructed using techniques that are geometrically objective
and appropriate for the geography of the area. This task
consists of plotting a provisional equidistance line, unless the
use of an equidistance line is not feasible or is otherwise
34630More specifically, the Court concluded that the limit of the

relevant area in the north follows the maritime boundary
between Nicaragua and Honduras, laid down in the Court’s
Judgment of 8 October 2007, until it reaches latitude 16°
north. It then continues due east until it reaches the boundary
of the Colombia-Jamaica ‘Joint Regime Area’. From that point,
it follows the boundary of that Area, skirting a line 12 nm from
Serranilla, until it intersects with the line 200 nm from
Nicaragua. In the south, the boundary of the relevant area
begins in the east at the point where the line 200 nm from
Nicaragua intersects with the boundary line agreed between
Colombia and Panama. It then follows the Colombia-Panama
line to the west until it reaches the line agreed between
Colombia and Costa Rica. It follows that line westwards and
then northwards, until it intersects with a hypothetical
equidistance line between the Costa Rican and Nicaraguan
coasts. Nicaragua v. Colombia (Merits), supra n. 8, p. 686, paras 164-
165.
31
This figure corresponds to sketch-map No. 7 depicted in the
Romania v.
Court’s
35
Ukraine (Judgment),
Judgment at p. 64. supra n. 16, pp. 101-103,
347
paras 119-121;
Libya/Malta (Judgment),
Nicaragua supra n. 27, p. 46, para 60; Romania v.
v. Honduras (Judgment), supra16,
Ukraine (Judgment), supra n. pp. p.
n. 12, 101-103, paras
745, para 115-122.
281;
Delimitation of the maritime boundary
between Guinea and Guinea-Bissau, Decision, 14 February 1985, ILR,
Vol. 77, p. 635.
inappropriate.348
In the second stage, the Court considers whether there are
any ‘relevant circumstances’ that may call for an adjustment or
shifting of the provisional equidistance line so as to achieve an
equitable delimitation. If the Court concludes that such
circumstances are present, it may adjust or shift the
equidistance line as necessary to take account of those
circumstances.349
Where the relevant circumstances so require, the
provisional equidistance line may be abandoned altogether,
and other techniques, such as the use of an angle bisector or
the drawing of enclaves around isolated islands, may be
employed to effect an equitable delimitation.350
34833Romania v. Ukraine (Judgment), supra n. 16, p. 101, para 116;

Nicaragua v. Honduras (Judgment), supra n. 12, p. 745, para 281.
Fig.Libya/Malta
34934 4 The (Judgment),
relevantsupra
area
n. 27, p. 47, para 63; Maritime Delimitation in the Area between
according to the Court v. Norway) Judgment, ICJ Reports 1993, pp. 79-81, paras 91-
350Greenland and Jan Mayen (Denmark
92 (hereinafter ‘Jan Mayen (Judgment)’).
100 M
-- > See ranilla
Joint
Regime
Ar.-I
\ (Col/Jam)
HONDURAS
COLOMBIA
Miskito Cays
Quitasueño Serrana Cays
Roncador
Sta Catalina
Providencia
V San Andrés
lESE Cays
' V Punta %
IdePertss„Com Islands
Al burquerque
Ca
ví
COLOMBIA
PANAMA
ẬCOLOMBIA
10
N
COSTARICA
PANAMA
In the third and final stage, a ‘disproportionality’ test is
conducted to verify that the line the results from the
application of the first two steps does not lead to any marked
disproportion, as determined by comparing the ratio of the
Parties’ relevant coastal lengths and the resulting ratio of their
maritime areas. In the absence of a substantial
disproportionality between these two ratios, the delimitation
will be deemed equitable.351
The three-stage process, as the Court has repeatedly
emphasized, ‘is not, of course, to be applied in a mechanical
fashion and [ . . . ] it will not be appropriate in every case to
begin with a provisional equidistance/median line.’ 352The
question of whether it was appropriate to start with an
equidistance line in the geographical circumstances of this
case took center stage. Colombia insisted on the application of
a strict, unmodified equidistance line between the west-facing
coasts of its islands and the Nicaraguan coastline, including
the fringing islands.353Its proposed boundary line is depicted in
Fig. 5.354
Nicaragua saw that approach as inherently inequitable: the
line so drawn would cut off the eastward projection of
Nicaragua’s extensive mainland coast and deprive it of any
maritime entitlements east of the hypothetical ‘line’ formed by
Colombia’s small islands, thus allocating some three quarters
of the relevant area to Colombia, and confining Nicaragua to a
narrow band of sea extending only some 55 nautical miles
from its mainland (and even less from its fringing islands)
despite its much longer coastline. Given these circumstances,
Nicaragua argued that the appropriate provisional delimitation
line should be enclaves drawn around all of Colombia’s islands
(12 nautical miles for the larger islands, 3 nm for the small
cays).
The Court decided not to abandon the standard
351Romania v. Ukraine (Judgment), supra n. 16, p. 103, para 122.
35237Nicaragua v. Colombia (Merits), supra n. 8, p. 696, para 194;
Nicaragua v. Honduras (Judgment), supra n. 12, p. 741, para 272 and
Fig. 4 v.
Romania The relevant
Ukraine area supra n. 16, p. 101, para 116.
(Judgment),
353 38
according v. (Merits), supra n. 8, p. 700, para 206.
to thecorresponds
Nicaragua Court
Colombia
354 39
This figure to sketch-map No. 3 depicted in
methodology it regularly employed in prior cases, and

commenced the delimitation process, as has become
customary, by constructing a provisional equidistance line
between Nicaragua’s coast and Colombia’s islands (as
Colombia had proposed).
This approach was criticized by some Judges, including
Judge Xue, who in her separate Declaration stated that she did
not believe the Court should have wedded itself to a
provisional equidistance line, which (as discussed below) it
then had to modify substantially to achieve an equitable
delimitation. Nevertheless, Judge Xue and the other Judges
uncomfortable with the Court’s reliance on this approach
agreed that the result ultimately reached by the Court was an
equitable one. In particular, all of the judges agreed that the
Parties had overlapping entitlements to the east of Colombia’s
islands, from which area Nicaragua could not be excluded, and
that the considerable disparity of coastal lengths had to be
taken into account in determining the course of the maritime
boundary. As reflected in the Judgment, however, a majority
concluded that those factors were to be considered in the
100 M
Serranía
JD
M
Regime
(COMMA
15*N sX. HONDURAS

COLOMBIA
Miskito Cays Quitasueño Serrana Cays
Roncador
sta Catalina
Providencia
is an Andres
ESE Cays
ae Penas^ Com Island
Alburquerque
CM
Colombia's proposed
boundary line
PANAMA
A COLOMBIA
COSTARICA
COSTARICA
PANAMA
Fig. 5 The boundary

according to Colombia
second stage of the delimitation process, and ‘do not justify
discarding the entire methodology and substituting an
approach in which the starting-point is the construction of
enclaves for each island, rather than the construction of a
provisional median line.’355
At the same time, the Judgment emphasizes that following
the three-step approach and starting with a provisional
equidistance line ‘does not preclude very substantial
adjustment to, or shifting of, the provisional line in an
appropriate case, nor does it preclude the use of enclaving in
those areas where the use of such a technique is needed to
achieve an equitable result.’356The Court thus proceeded in
accordance with its standard three-step method as described
in detail below.
3.2.1 Construction of the Provisional Median Line
Consistent with its prior decisions, the Court constructed a

provisional equidistance line between the Nicaragua’s mainland
(including fringing islands) and Colombia’s islands, by
reference to the base points it considered appropriate. 357
For the Nicaraguan coast, the Court used base points
located on Edinburgh Reef, Muerto Cay, the Miskito Cays, Ned
Thomas Cay, Roca Tyra, Little Corn Island and Great Corn
Island. For the Colombian coast, it placed base points on Santa
Catalina, Providencia and San Andres Islands and on
Alburquerque Cay. At the same time, it decided that
Quitasueno, Serrana and Low Cay (where Colombia had
proposed the placement of base points) were too insignificant
to be used in the construction of the provisional equidistance
line.
The ICJ’s unwillingness to place base points on tiny insular

356Ibid.
357Ibid., p. 698, para 200 (the Court reaffirmed that it ‘should
not base itself solely on the choice of base points made’ by
one of the disputing parties; it ‘must [...] select base points by
reference to the physical geography of the relevant coasts’).
features goes back at least as far as the Gulf of Maine case,
decided more than 30 years ago. In that Judgment, a
Chamber of the Court warned of ‘the potential disadvantages
inherent in any method which takes tiny islands, uninhabited
rocks or low-tide elevations, sometimes lying at a considerable
distance from terra firma, as a basepoint for the drawing of a
line intended to effect an equal division of a given area.’ 358The
Chamber expressly objected to ‘making a series of such minor
features the very basis for the determination of the dividing
line, or for transforming them into a succession of basepoints
for the geometrical construction of the entire line.’359
Similarly, in Libya/Malta, the Court ruled that ‘the
equitableness of an equidistance line depends on whether the
precaution is taken of eliminating the disproportionate effect of
certain “islets, rocks and minor coastal projections.”’ 360
The Court thus found it equitable not to take account of a
small Maltese islet, Filfla, in the construction of the provisional
median line.
The Court similarly held in Romania v. Ukraine that it was
inappropriate to place any base point on Ukraine’s tiny
Serpents’ Island because it lay alone and at a distance of some
20 nautical miles from the mainland coast of Ukraine, and its
use in constructing the equidistance line ‘would amount to
grafting an extraneous element onto Ukraine’s coastline; the
consequence would be a judicial refashioning of geography,
which neither the law nor practice of maritime delimitation
authorizes.’361
Building upon its prior decisions, the Court reasoned that
the same considerations applied to Colombia’s Quitasueno,
Serrana and Low Cay. For example, Quitasueno, in addition to
being a tiny feature, lies considerably north of Santa Catalina,
and its use in the construction of the provisional median line
would have pushed that line significantly closer to Nicaragua
and blocked the seaward projection of Nicaragua’s coast north
358Gulf of Maine (Judgment), supra n. 27, pp. 329-330, para 201.
359Ibid.
360Libya/Malta (Judgment), supra n. 27, p. 48, para 64.
361Romania v. Ukraine (Judgment), supra n. 16, pp. 109-110, para
149.
of the main islands.
Serrana, another tiny feature, was also discounted because
it lies at a considerable distance from any of the other
Colombian islands, and placing a base point on it would have
produced a marked effect upon the course of the provisional
equidistance line out of all proportion to its size and
significance.
The same conclusion was reached in regard to Low Cay, a
small, uninhabited feature near Santa Catalina. While the
Court disregarded these minor features in constructing the
provisional equidistance line, it ruled that each was still
entitled to a 12-nm territorial sea.
The provisional equidistance line constructed from the
selected base points is depicted in Fig. 6.362
3.2.2 Consideration of the Relevant Circumstances
The Parties invoked different considerations they deemed

relevant to the achievement of an equitable solution: the
marked disparity in the lengths of the relevant coasts, the cut-
off effects of Colombia’s islands, and other considerations such
as the conduct of the parties, security and law enforcement
interests, equitable access to natural resources, and
delimitations already effected in the area with third States.
They drew opposite conclusions from their analyses of those
considerations, however. Colombia argued that the provisional
equidistance line afforded an equitable solution and therefore
required no adjustment whatsoever. Nicaragua responded that
the inequity resulting from that line called for an entirely
different approach; namely the enclaving of all of Colombia’s
islands. The Court evaluated all of these factors to determine
whether they called for adjustment (or abandonment) of the
provisional equidistance line.

100 M
Serranilla
Jo nr
Regime
(Col/Jam)
15 N HONDURAS
! din burgh Reef COLOMBIA
Roncador
Providencia
San Andres
Punta ESE Cays

de
Perlas I burq u erque
cm
COLOMBIA
PANAMA
COLOMBIA
10*N
COSTA RICA
PANAMA
Fig. 6 The construction of the provisional equidistance line by the Court

3.2.2.1 Disparity in the Lengths of the Relevant Coasts
Nicaragua argued that the significant disparity in the length of

the Parties’ relevant coasts must be taken into account in
order to arrive at an equitable solution. Colombia naturally
sought to downplay this factor.
The Court’s jurisprudence establishes that, while ‘the
respective length of coasts can play no role in identifying the
equidistance line which has been provisionally established,’ 363it
is nevertheless true that ‘a substantial difference in the lengths of
the parties’ respective coastlines may be a factor to be taken
into consideration in order to adjust or shift the provisional
delimitation line.’364Indeed, in all prior cases where disparities
in the lengths of coasts were particularly marked, the Court
treated that fact as a relevant circumstance requiring an
adjustment to the provisional equidistance line.
In the Jan Mayen case, for example, the Court found that the
disparity between the lengths of the coasts of Norway’s Jan
Mayen Island and Greenland (approximately 9:1) constituted a
‘special circumstance’ requiring modification of the provisional
equidistance line in favor of Greenland (Denmark), by moving
it closer to the coast of Jan Mayen, to avoid inequitable
results.365In Libya/Malta, the Court similarly found that the
difference in the lengths of the relevant coasts of Malta and
Libya (by a ratio 8:1) ‘is so great as to justify the adjustment of
the median line.’366
Drawing on these decisions, the Court found that the
coastal length ratio of 8.2:1 in favor of Nicaragua ‘is
undoubtedly a substantial disparity’ that ‘requires an
364Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equato-
rial Guinea intervening), Judgment, ICJ Reports 2002, pp. 446-447, para 301
(hereinafter ‘Cameroon v. Nigeria (Merits)’); Jan Mayen (Judgment), supra
n. 34, p. 65, para 61; Libya/Malta (Judgment), supra n. 27, pp. 53-
54, paras 74-75; Gulf of Maine (Judgment), supra n. 27, p. 323, para
185 and Romania v. Ukraine (Judgment), supra n. 16, p. 116, para
164.
365Jan Mayen (Judgment), supra n. 34, p. 65, para 61.
366Libya/Malta (Judgment), supra n. 27, p. 50, para 68 and pp. 53-
54, paras 74-75—emphasis added.
adjustment or shifting of the provisional line, especially given
the overlapping maritime areas to the east of the Colombian
islands.’367The Court noted that a maritime boundary following
the provisional equidistance line, as Colombia proposed, would
have left Colombia in possession of ‘a markedly larger portion
of the relevant area than that accorded to Nicaragua,
notwithstanding the fact that Nicaragua has a far longer
relevant coast.’368To avoid that inequitable result, the Court
reasoned that the ultimate boundary ‘should be such that the
portion of the relevant area accorded to each State takes
account of the disparity between the lengths of their relevant
coasts.’369
3.2.2.2 The Cut-Off Effect
It is a basic principle of maritime delimitation that a State

should not be wholly cut off, or blocked, from the maritime
areas into which its coast projects.370The Court was therefore
troubled that the effect of the provisional equidistance line was
to cut Nicaragua off from some three quarters of the area into
which its coast naturally projects, especially since. that cut-off
effect was produced by a few small islands many nautical
miles apart from each other.
In the Court’s view, ‘the achievement of an equitable
solution requires that, so far as possible, the line of
delimitation should allow the coasts of the Parties to produce
their effects in terms of maritime entitlements in a reasonable
368Ibid., pp. 707-708, para 229.
369Ibid.
370 Gulf of Maine (Judgment), supra n. 27, pp. 329-330, para 201;
Libya/Malta (Judgment), supra n. 27, p. 48, para 64; Tunisia/Libya
(Judgment), supra n. 27, pp. 88-89, paras 128-129; Romania v.
Ukraine (Judgment), supra n. 16, p. 109, para 149; Bangladesh/Myanmar
(Judgment), supra n. 28, paras 317-319; Dubai/Sharjah (Award), supra
n. 28, pp. 676-677, paras 263 and 265; Newfoundland/Nova Scotia
(Award), supra n. 28, paras 5.14-5.15; Anglo-French Continental Shelf (1977
Award), supra n. 28, paras 196 and 199; St. Pierre and Miquelon
(Award), supra n. 28, pp. 1169-1170, paras 67, 69 and 70. See
also Bowett (1993), p. 151.
and mutually balanced way.’371It thus concluded that the cut-
off produced by Colombia’s islands was a relevant
circumstance calling for adjustment of the provisional
equidistance line in Nicaragua’s favor in order to produce an
equitable result. At the same time, its conclusion was not one-
sided. The Court also stated that ‘any adjustment or shifting of
the provisional median line must not have the effect of cutting
off Colombia from the entitlements generated by its islands in
the area to the east of those islands.’372Rather, the solution
should be one ‘in which neither Party is cut off from the
entirety of any areas into which its coasts project.’ 373Otherwise,
the effect would have been ‘to remedy one instance of cut-off
by creating another.’374
3.2.2.3 Other Circumstances
The Court considered other circumstances that Nicaragua or

Colombia argued were relevant to the delimitation, including
the conduct of the parties, security and law enforcement
requirements, equitable access to natural resources, and
delimitations already effected in the area. Each was evaluated
by the Court and rejected as irrelevant.
The conduct of the parties may constitute a relevant
circumstance in an appropriate case. The jurisprudence of the
ICJ and other tribunals shows that such conduct will not
normally have an effect on delimitation, unless it is of an
exceptional character.375On the facts of the case, the Court did
not consider that the conduct of the Parties was ‘so
exceptional as to amount to a relevant circumstance which
itself requires it to adjust or shift the provisional median
line.’376
373Ibid., pp. 707-708, para 229.
374Ibid., p. 704, para 216.
375Jan Mayen (Judgment), supra n. 34, para 86; Cameroon v. Nigeria
(Merits), supra n. 49, pp. 447-448, para 304; Romania v. Ukraine
(Judgment), supra n. 16, pp. 125-126, para 198.
Legitimate security concerns may constitute a relevant
circumstance if the maritime delimitation is effected close to
the coast of a State.377The Court stated that it was mindful of
that consideration in determining what adjustment to make to
the provisional median line in this case and deliberately
avoided shifting it too close to Colombia’s main islands.
Access to natural resources ‘ [has] been treated more
cautiously by the decisions of international courts and
tribunals, which have not generally applied this factor as a
relevant circumstance.’378Consistent with that proposition, and
taking into account that neither Party offered evidence that
access (or denial of access) to natural resources was a
particularly significant factor in this case, the Court considered
that there was no basis to warrant treating it as a relevant
circumstance.379
As for delimitations already effected in the area, the Court
accepted that Panama’s agreement with Colombia amounted
to recognition by Panama of Colombian claims to the area
north and west of the boundary line laid down in that
agreement. Similarly, the unratified treaty between Colombia
and Costa Rica entailed at least potential recognition by Costa
Rica of Colombian claims to the area north and east of the
boundary line which it establishes. And the Colombia-Jamaica
agreement constituted recognition by Jamaica of Colombian
claims to the area south-west of the boundary of the
Colombia-Jamaica ‘Joint Regime Area’. That said, the Court did
not agree that these recognitions amounted to a relevant
circumstance that should be taken into account in effecting a
maritime delimitation between Colombia and Nicaragua.
The Court’s decision was based on the basic precept that a
treaty between two States cannot, by itself, affect the rights of
a third State.380On that basis, the Court concluded that the
377Nicaragua v. Colombia (Merits), supra n. 8, p. 706, para 222; Romania

v. Ukraine (Judgment), supra n. 8, p. 128, para 204; Libya/Malta
(Judgment), supra n. 27, p. 42, para 51.
37863Barbados/Trinidad and Tobago (Award), supra n. 12, p. 214, para 241;
Romania v. Ukraine (Judgment), supra n. 16, pp. 125-126, para 198.
37964 Nicaragua v. Colombia (Merits), supra n. 8, p. 706, para 223.
380 As it was held in the Island of Palmas: ‘it is evident that
65
whatever may be the right construction of a treaty, it cannot

treaties which Colombia concluded with Jamaica and Panama,
and the treaty which it signed with Costa Rica did not confer
upon Colombia rights against Nicaragua and, in particular, did
not entitle it, vis-a-vis Nicaragua, to a greater share of the
area in which its maritime entitlements overlap with those of
Nicaragua.381
Having thus identified relevant circumstances, and concluded
that a maritime boundary following the course of the
provisional equidistance line would not
produce an equitable result, the Court proceeded to adjust the
line very substantially in Nicaragua’s favor.
3.2.3 Adjustment of the Provisional Median Line in Light of

the Relevant Circumstances
The extent and the manner of adjusting the provisional

equidistance line were determined in light of the marked
disparity of the coastal lengths and the need to avoid cut-off
effects for either Party. With those matters in mind, the Court
drew a distinction between the part of the relevant area that
lies between Nicaragua’s mainland and Colombia’s islands,
where the relevant coasts are opposite one another, and the
part of the relevant area that lies east of those islands, where
the relationship is more complex—a combination of adjacency
and oppositeness.
In the western part of the relevant area, the Court found
that the disparity in the lengths of the relevant coasts called
for the provisional median line to be shifted eastward toward
Colombia’s islands. According to the Court, the disparity in
coastal lengths was ‘so marked as to justify a significant shift.’382At
the same time, the Court ruled that ‘the line [ . . . ] cannot be
shifted so far that it cuts across the 12-nautical-mile territorial
sea around any of the Colombian islands.’383
Noting that there are various techniques that allow for
relevant circumstances to be taken into consideration in order
be interpreted as disposing of the rights of independent third
Powers’ (RIAA, Vol. II, p. 842).
382 Ibid., p. 709, para 233—emphasis added.
61
383Ibid.
to reach an equitable solution, the Court considered that to
arrive at such a solution in this case, the base points attributed
to Nicaragua and Colombia, respectively, should be accorded
different weights. This was done by constructing an adjusted
equidistance line each point on which was three times as far
from the controlling base point on the Nicaraguan coast as it
was from the controlling base point on the Colombian coast
(rather than being equidistant from the controlling base
points).
Because the resulting weighted line had a curved shape
with a large number of turning points, the Court further
adjusted it to avoid difficulties in its practical application. That
produced a simplified weighted line, as depicted on Fig.
7. The simplified weighted line is roughly equivalent to an
384
adjusted equidistance line giving full effect to Nicaragua’s

mainland coast and one-half effect to Colombia’s islands.
While the simplified weighted line in the western sector
represented a shifting of the provisional equidistance line that
in some way compensated for the disparity in coastal lengths,
it would have, if extended northward and southward, still left
Colombia with a significantly larger share of the relevant area
than Nicaragua, despite Nicaragua’s much longer relevant
coast. In the Court’s view, it would have given insufficient
weight to the first relevant circumstance: the significant
disparity
384This figure corresponds to the sketch-map No. 10 depicted

in the Court’s Judgment at p. 87.
100 M
' Serranilla
Joint
Regime
(Col/Jam)
18 N HONDURAS
COLOMBA
dm burgh Reef
Muerto Reef
V ÁMiskito Cays
ed Thomas
Roncador
Providencia
ỷ*• Roca Tyra
■' VSan Andrés

Punta . ESE Cays
/ * Pertas„ Com Islands
Al bu rq u
erque
C
M
COLOMBIA
PANAMA
A COLOMBIA
COSTARICA
10 N
COSTA RICA
PANAMA
Fig. 7 The adjusted equidistance line

in coastal lengths. The Court further reasoned that by cutting
off Nicaragua from the areas east of the principal Colombian
islands into which the Nicaraguan coast projects, such a
boundary would fail to take into account the second relevant
consideration: avoidance of a cut-off effect.
Taking proper account both of the disparity in coastal
lengths and the need to avoid cutting either State off from the
maritime spaces into which its coasts project, the ICJ
determined that an equitable result which ‘gives proper weight
to those relevant considerations is achieved by continuing the
boundary line out to the line 200 nautical miles from the
Nicaraguan baselines along lines of latitude.’ 385
As illustrated on Fig. 8,386the delimitation lines thus
established run as follows. First, from the northernmost point of
the simplified weighted line (point 1), which is located on the
parallel passing through the northernmost point on a 12-
nautical mile arc around Roncador Cay, the delimitation line
follows the parallel of eastward latitude until it reaches the 200
nautical-mile limit from Nicaragua’s coastal baselines (endpoint
A).
Second, from the southernmost point of the simplified
weighted line (point 5), the line of delimitation runs in a south-
east direction until it intersects with the 12 nautical-mile arc
around Alburquerque Cay (point 6). It then follows that arc
until it reaches the point of intersection with the parallel
passing through the southernmost point on the arc (point 7).
The boundary then follows that parallel eastward until it
reaches the southernmost point of the 12 nautical-mile arc
around East-Southeast Cay (point 8) and continues along that
arc until its most eastward point (point 9). From that point, the
boundary follows the parallel of latitude until it reaches the
200 nautical-mile limit from Nicaragua’s coast (endpoint B).
The way the Court drew the boundary left Quitasueno and
Serrana outside the corridor between two parallels of latitude
that it established for Colombia. To have expanded the
385 Nicaragua v. Colombia (Merits), supra n. 8, p. 710, para 236.

10
386This figure corresponds to the sketch-map No. 11 depicted

in the Court’s Judgment at p. 89.
Colombian corridor northward, so as to encompass these

features, would have been to allow small, isolated features to
disproportionately affect the boundary. Accordingly, the Court
concluded that the most equitable solution with respect to
these features was to enclave them within a 12 nautical-mile
territorial sea.
The resulting delimitation—consisting (in summary) of (1)
an adjusted equidistance line in the west, whose endpoints in
the north and south are connected by straight lines running
along parallels of latitude to another north-south line 200
nautical miles from Nicaragua’s coast, and (2) 12 nautical-mile
enclaves around Quitasueno and Serrana—represents a
complex (and creative) solution to a complex (and unique)
geographical situation. It can be viewed as an adjusted
equidistance line (with several different adjustments in
different parts of the relevant area), or as a combination of
different methodologies: modified equidistance in the west, a
corridor created by parallels of latitude in the north
100 M
Serranilla
Joint
Reame
Ar,
-o
(Col/Jam)
IS N
COLOMBIA
din burgh Reef
Muerto Reef
í V ¿ Miskito Cays
Thomas
Roncador
s,a Catalina
Providenda
#• Roca Tyra
V San Andrés
Punta %
do Portas ^ Corn Islands SE Cays
Alburquerque
Cays
COLOMBIA
PANAMA
COLOMBIA
10 N
COSTARICA
PANAMA
Fig. 8 The final delimitation

and south, and enclavement of small islands determined to be
too insignificant to otherwise affect the delimitation.
Regardless of how it is viewed methodologically, there is
little doubt that the Court strove to achieve a solution that was
equitable to both Parties, and that in the opinion of all 16
judges, including the distinguished ad hoc Judge appointed by
Colombia itself, it succeeded in doing so.
3.2.4 Conducting a Disproportionality Test
In testing for disproportionality, the Court has consistently

stated that ‘it is not applying a principle of strict
proportionality’387because ‘maritime delimitation is not
designed to produce a correlation between the lengths of the
Parties’ relevant coasts and their respective shares of the
relevant area.’388Instead, the task is ‘to check for a significant
disproportionality’ in order to ‘to ensure that there is not a
disproportion so gross as to “taint” the result and render it
inequitable.’389
The case law reflects that the ICJ and other tribunals have
displayed considerable caution in the application of the
disproportionality test. In Libya/Malta the ratio of relevant coasts
was approximately 8:1, a figure almost identical to that in the
present case (8.2:1). At the second stage of its analysis in that
case, the Court found that this disparity required an
adjustment of the provisional equidistance line in Libya’s favor.
Although the Court did not calculate the precise division of
shares of the relevant area resulting from its delimitation
(arguably because of the difficulty of determining the limits of
the relevant area due to the overlapping interests of third
States), nonetheless it is clear that the resulting maritime
areas of Libya and Malta did not approach a ratio of 8:1;
although Libya’s share of the area delimited was substantially
increased from what it would have been had the boundary
followed the provisional equidistance line, it was considerably

388Ibid.
less than eight times as large as the area received by Malta. 390
Similarly in Jan Mayen, where the ratio of relevant coasts was
approximately 9:1 in Denmark’s favor and led the Court to
shift the provisional equidistance line, the delimitation
produced by the Court divided the relevant area in a manner
that gave Denmark an advantage of approximately 2.7:1; that
is, although Greenland’s relevant coast was nine times longer
than Jan Mayen’s, Greenland (Denmark) received only
between two and three times more of the relevant area as Jan
Mayen (Norway).391
As regards Nicaragua and Colombia, the Court calculated
that the delimitation it produced divided the relevant area as
between the Parties in a ratio of approximately 3.44:1 in
Nicaragua’s favor. This division was not as favorable to
Nicaragua as the ratio of lengths of the parties’ relevant coasts
but was close enough, in the Court’s opinion, so as not to be
markedly disproportionate, and to thereby pass the
disproportionality test. This conclusion was consistent with the
Court’s prior rulings, especially in Libya/Malta and Jan Mayen. As a
consequence, neither Party could justifiably complain about
the result. It was an equitable solution, in conformity with the
long line of maritime delimitation cases decided by the Court
and other international tribunals.
4 Conclusions
The maritime boundary the ICJ unanimously established was a

creative solution to a complex geographic situation. The result
390Ibid., p. 717, para 245.

391OAS Treaty Series, No. 17 and 61. The Pact was signed at Bogota
on 30 May 1948 during the Ninth Inter-American Conference,
and entered in force on 6 May 1949.
2
The Pact had been discussed in the Arbitral Award Made by the King of Spain on 23 December 1906
(Honduras v. Nicaragua) case, especially its relation with the special agreement concluded in
Washington on 21 July 1957. However, it played no role in the establishment of the Court’s jurisdiction,
ultimately founded on the Agreement and the declarations under Article 36, paragraphIbid.
allowed the coasts of both States to produce their effects in
terms of maritime entitlements in a reasonable and mutually
balanced way. This is the equitable solution required by
international law.
The Court’s legal pronouncements and delimitation
methodology provide a valuable guidance for States as they
seek to settle maritime boundary disputes in the Caribbean
Sea and elsewhere. First, the Court reaffirmed that the UNCLOS
provisions on delimitation of the EEZ and continental shelf
reflect customary international law. These provisions will thus
apply in delimitation among the all States, even those that are
not parties to the Convention.
Second, the Court made clear that the three-step delimitation
methodology is not to be applied mechanically; it is not a rigid
exercise. It may not be appropriate in every case to begin with
a provisional equidistance line. Moreover, starting with a
provisional equidistance line does not preclude very substantial
adjustment to, or shifting of, the provisional line when the
circumstances so dictate. Nor does it preclude the use of other
delimitation methods or a combination of such methods as
long as it is necessary to achieve an equitable result.
Third, the decision in Nicaragua v. Colombia further underscored
the dispositive role objective geographic factors play in
delimitation. It was a substantial difference in the lengths of
the parties’ respective coastlines and an inequitable cut-off
effect created by small islands that justified the Court’s
adjustments of the provisional delimitation line to achieve an
equitable solution. This is consistent with the modern trend
discernable in all recent maritime delimitation cases in which
the only factors found relevant to the maritime boundary
delimitation were geographic in nature: the geomorphological
instability of a coastline (Nicaragua v. Honduras), an inequitable
cut-off effect caused by small off-shore insular features
(Romania v. Ukraine) and a markedly concave coastline (the Bay of
Bengal cases).
Although the Court has not entirely ruled out the possibility
that non-geographic factors, such as the conduct of the parties
or equitable access to natural resources, might be relevant, it
nonetheless made clear that such factors could be taken into
account, if at all, only in highly exceptional circumstances. The
Court also made clear that delimitations already effected in the
area with third States do not constitute a relevant
circumstance; such delimitations are res inter alios acta.
Fourth, the Court solidified the fundamental rule that
emerged from the case law: if equidistance methodology is
used, an island must be given full weight unless it has the
effect of pushing the provisional equidistance line across, and
in front of, another State’s coastal front, resulting in a cutoff of
that State’s seaward projection. If the provisional equidistance
line is distorted in this manner, the island may be discounted,
given less than full weight in the delimitation or enclaved to
avoid or abate an inequitable cut-off effect.
References
Bowett D (1993) Islands, rocks, reefs and low-tide elevations
in maritime boundary delimitations.
In: Charney J, Alexander LM (eds) International maritime
boundaries, vol I. Brill/Nijhoff Dundas C (2005) Regional
reports: Middle America/The Caribbean. In: Colson DA, Smith
RW (eds) International maritime boundaries, vol V. Brill/Nijhoff
Freestone D, Schofield C (2015) The Caribbean Sea and Gulf
of Mexico. In: Rothwell DR, Oude Elferink AG, Scott KN,
Stephens T (eds) The Oxford handbook of the law of the sea.
Oxford Nweihed KG (1996) Regional reports: Middle American
and Caribbean maritime boundaries. In: Charney J, Alexander
LM (eds) International maritime boundaries, vol I. Brill/Nijhoff
Lawrence H. Martin is a Partner and the Deputy Chair of

Hoag LLP.
Yuri B. Parkhomenko is an international dispute resolution lawyer in
Hoag LLP. The views and opinions expressed in this chapter
are those of the authors and do not necessarily reflect the
views and opinions of Foley Hoag LLP.
Part IV
Jurisdictional Issues in the Nicaraguan
Cases
The Pact of Bogotá in the Jurisprudence
of the International Court of Justice
Antonio Remiro Brotons
Abstract The American Treaty on Pacific Settlement or ‘Pact of

Bogota’ was invoked for the first time as a basis of jurisdiction
of the Court in 1986 in the context of proceedings introduced
by Nicaragua against Costa Rica and Honduras. Since then, the
Pact has been invoked in most of the disputes involving Latin
American States. What it is proposed in the following pages is
a dissection of the provisions of the Pact that shape the
procedures before the Court to analyze how they operate and
in which manner the Court has contributed to define them. The
analysis first looks at the judicial system under the Pact; the
study delves into the grounds invoked to contest the
jurisdiction of the Court and the admissibility of the claims
brought before it; thereafter, it is the application of the
denunciation clause of the Pact which deserves a particular
attention. The Pact and the Court have resulted to be an
effective combination to the pacific settlement of disputes
between Latin American States Parties. Therefore, it would be
highly regrettable that the endeavor and longstanding
commitments on which they rest could be questioned for the
wrong reasons.
Antonio Remiro Brotons was part of the legal team representing the Republic of Nicaragua in the
following cases: Border and Transborder Armed Actions (Nicaragua v. Honduras); Border and
Transborder Armed Actions (Nicaragua v. Costa Rica); Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras); Territorial and Maritime
Dispute (Nicaragua v. Colombia); Dispute regarding Navigational and Related Rights (Costa Rica v.
Nicaragua); Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia
(Nicaragua v. Colombia); Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean
Sea (Nicaragua v. Colombia); Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v.
Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua). The
views and opinions expressed in this Chapter are those of the author and do not necessarily reflect1the
views and opinions of the Republic of Nicaragua. The author would like to thank Gimena Gonzalez4for
3
144 A.R. Brotons
her comments and suggestions.
A.R. Brotons (*)
Public International Law and International Relations,
Universidad Autonoma de Madrid,
Madrid, Spain
e-mail: antonio.remiro@gmail.com© Springer International
Publishing AG 2018
the International Court of Justice, DOI 10.1007/978-3-319-62962-
9_7
The Pact of Bogota in the Jurisprudence of the International
Court of Justice 145
of Nicaragua................................................................................................................................... 144
was invoked for the first time as a basis of jurisdiction of the
Court on 28 July 1986,392in the context of the proceedings
instituted by Nicaragua against Costa Rica393and
Honduras,394following the Judgment on the merits concerning
the so-called Nicaragua case.395As well known, the Court decided
in this case, inter alia, that the intervention of United States in
Nicaragua had violated fundamental principles of customary
international and humanitarian law.396Nicaragua, in filling these
two Applications with the Court,
392 (see Judgment, ICJ Reports 1960, p. 194).

3933Border and Transborder Armed Actions (Nicaragua v. Costa Rica), Application instituting
proceedings, 28 July 1986.
3944Border and Transborder Armed Actions (Nicaragua v. Honduras), Application
instituting proceedings, 28 July 1986.
395Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, ICJ Reports 1986, p. 14 (hereinafter ‘Nicaragua v. United States
(Merits)’).
396Ibid., p. 175, para 290.
146 A.R. Brotons
was seeking to determine the degree of responsibility of Costa
Rica and Honduras in these wrongful acts. Both claims were
submitted simultaneously and concluded in a similar manner,
namely with their withdrawal as result of the complex political
negotiations leading to the so-called Esquipulas II Accord.397
The parallelisms, however, ended there, for each case was
marked by its own timing and circumstances; while the case
against Costa Rica was formally discontinued few days after
the signature of Esquipulas II,398the case of Honduras, more
intensively involved in the conflict, dragged on until 27 May
1992.399Unlike Costa Rica, Honduras rushed to contest the
jurisdiction and admissibility of the claim and, at the time of
the conclusion of Esquipulas II, the written proceedings were
already closed.400
Honduras, anticipating the detrimental scenario of an exam
on the merits, based its defense on the most restricted
interpretation of the Pact. Such effort was, however, fruitless,
for none of its objections were retained. The Court, by
Judgment of 20 December 1988, unanimously asserted its
jurisdiction on the basis of Article XXXI, and declared
admissible the claim.401Finally, as mentioned above, the
discontinuance of the case in 1992 as result of Esquipulas II,
brought the procedure to an early end, and no additional
pronouncements were required. Nicaragua made sure though
that this did not occur before having filed its Memorial on the
merits on 8 December 1989. It wished to keep a judicial record
3977Procedure for the Establishment of a Firm and Lasting

Peace in Central America, Guatemala City, 7 August 1987. The
Accord was signed by the presidents of Costa Rica, El Salvador,
Guatemala, Honduras and Nicaragua. The document contains
the principles guiding the resolution of the conflict and the
organization of its aftermath; see Annex incorporating the
Accord in Doc. UNGA A/42/521, S/19085.
3988Border and Transborder Armed Actions (Nicaragua v. Costa Rica), Order of 19 August 1987, ICJ
Reports 1987, p. 182. Nicaragua had deposited its Memorial 10 August 1987.
399Border and Transborder Armed Actions (Nicaragua v. Honduras), Order of 27 May 1992, ICJ
Reports
101992, p. 222.
400 Hearings were held from 6 to 15 June 1988.
401 Border and Transborder Armed Actions (Nicaragua v. Honduras), Preliminary Objections,
Judgment, ICJ Reports 1988, p. 107, paras 98-99 (hereinafter Armed Actions (Nicaragua v. Honduras)
(Judgment)’).
of the facts and of the Honduran responsibility.
Since the filing of these Applications, numbers speak for
themselves illustrating Nicaragua’s impact, and the crucial
relevance acquired by both the instrument and the Court in the
settlement of disputes between its parties. The Pact has been
invoked in 14, out of a total of 17 disputes involving Latin
American States in the last 30 years.402Nicaragua has been a
party in 10 out of 14 cases.403It should be incidentally noted
that Nicaragua has never objected the jurisdiction of the Court
nor has ever sought to obstruct the admissibility of claims
brought against it. Indeed, the Pact has been applied without
obstacles in the disputes involving it with Costa Rica, or with
Honduras in the case concerning Territorial and Maritime Dispute in the
Caribbean Sea.
The recourse to preliminary objections has been, however,
the general rule in the disputes involving Colombia, which has
raised them in every dispute opposing it to Nicaragua. In the
first of them, Territorial and Maritime Dispute case,404Colombia
contended that the treaty signed on 24 March 1928 (known as
Barcenas-Esguerra) and the protocol concluded on 5 May 1930 had
already settled the sovereignty over the Archipelago of San
40212The three exceptions are: first,the case concerning the Land,
The
Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening).
jurisdiction in this case was based on a compromis concluded by
the Parties on 24 May 1986, notified to the Court on 11
December 1986. The second exception is the Application for Revision of the
Judgment of 11 September 1992 in the case concerning the Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)
(El Salvador v. Honduras). In this case Article 61 of the Statute and
Articles 99 and 100 of the Rules of the Court acted as basis of
jurisdiction. The third exception is found in the case Pulp Mills on the
River Uruguay (Argentina v. Uruguay). In this case the jurisdiction was
based on Article 60 of the Statute of the Uruguay River—a
treaty concluded by the two States on 26 February 1975.
Argentina had signed the Pact in 1948 but, unlike Uruguay,
had not become a State Party.
403See the Chronological List of Cases of Nicaragua before the
ICJ at the beginning of this book.
404Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, ICJ
Reports 2007, p. 832 (hereinafter ‘Nicaragua v. Colombia (Jurisdiction)’).
148 A.R. Brotons
Andres and other maritime features off the continental coast of
Nicaragua, and the delimitation of maritime spaces. For
Nicaragua, these instruments were void and, in any case,
terminated in 1969. Nicaragua further argued that even
assuming its validity, this instrument was silent on the islands
forming the archipelago beyond San Andres, Providencia, and
Santa Catalina, and excluded expressly some formations,
namely Serrana, Roncador and Quitasueno, from its scope.
Besides, the reference to meridian 82° in the protocol of 1930
could in no way be interpreted as amounting to a dividing line
of maritime spaces. It was confined to merely note that the
archipelago of San Andres could not go beyond the formations
lying west of this meridian.405Unlike Honduras in the eighties, it
was only after the submission of the Nicaraguan Memorial on
28 April 2003 that Colombia contested the basis of jurisdiction
invoked by Nicaragua.
The Court accepted in its Judgment of 13 December 2007
(13 to 4) the preliminary objection with respect of the
sovereignty over San Andres, Providencia, and Santa Catalina,
on basis of Article VI and Article XXXIV of the Pact, but
rejected unanimously the objection regarding the other
maritime features and the maritime delimitation. As to the
declarations under the optional clause, the Court (14 to 3) retained
the objection based on lack of jurisdiction concerning the
islands mentioned eo nomine, and considered unnecessary (16 to
1) to examine the objection regarding the other questions once
Article XXXI was admitted as basis to establish
jurisdiction.406After two rounds of writings and oral hearings,
and two intervention
405Ibid., pp. 841-847, paras 15-32, where the historical context

of the case is described.
406Ibid. pp. 875-876, para 142.
requests by Costa Rica and Honduras (which were rejected by
the Court),407the Court issued its decision on the merits on 19
November 2012.408
In addition to the Territorial and Maritime Dispute case, Colombia
has also raised preliminary objection in other two cases
opposing it to Nicaragua, namely in the Question of the Delimitation of
the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from
the Nicaraguan Coast and in the Alleged Violations of Sovereign Rights and
Maritime Spaces in the Caribbean Sea, brought in 2013. In these two
cases, the timing of the Nicaraguan Applications was
determined by the Colombia’s denunciation of the Pact of
Bogota on 27 November
2012. Although Colombia claimed immediate effects of its
denunciation, Nicaragua contended that, pursuant Article LVI
of the Pact, the denunciation could produce those effects only
after 1 year following its notification. The first Application was
filed with the Court on 16 September and the second on 26
November
2013, that is, 1 day before, according to Nicaraguan
interpretation, the Pact would cease its effects vis-à-vis
Colombia.
In these cases, Colombia raised five preliminary objections
to the jurisdiction and admissibility: in the case concerning the
Question of the Delimitation of the Continental Shelf beyond 200 nm it did it on 14
August 2014—before Nicaragua presented its Memorial;
instead, in the Alleged Violations case, Colombia opted for waiting
for the Nicaraguan Memorial to raise its objections on 19
December 2014. Only the first of the five objections was
common to both cases, and it concerned the jurisdiction ratione
temporis under the Pact of Bogota. The third objection in the
case of the Alleged Violations was also based on the Pact.
Colombia sustained the non-compliance of the condition set
forth in Article II.
40717See Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Costa Rica for
permission to Intervene, Judgment, ICJ Reports 2011, p. 348 and Territorial and Maritime Dispute
(Nicaragua v. Colombia), Application by Honduras for permission to Intervene, Judgment, ICJ Reports
2011, p. 420.
40818Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, Judgment, ICJ Reports 2012,
p. 624 (hereinafter ‘Nicaragua v. Colombia (Merits)’).
150 A.R. Brotons
In the Judgments of 17 March 2016, the Court rejected
unanimously the first objection concerning its jurisdiction ratione
temporis under the Pact. In the decision on the Alleged Violations,
409
the Court also rejected (15 to 1) the third objection about the
interpretation of article II. The rest of objections had different
fate. Be that as it may be, the Court confirmed its jurisdiction
in both affairs over the core of the Nicaraguan petitum on the
basis of Article XXXI and Article LVI. The Court decided
unanimously in the Question of the Delimitation of the Continental Shelf beyond
200 nm case, and with ample majority (14 to 2) in the Alleged
Violations case. Nevertheless, in the former case, an objection
based on the res judicata of the petitum resulted in a tied vote (8 to
8) which had to be decided by the casting vote of the
President.20
Aside the cases above, preliminary objections contesting the
jurisdiction of the Court under the Pact were filed only in one
further instance, namely in the dispute concerning the Obligation
to Negotiate Access to the Pacific Ocean (Bolivia v. Chile).21In this case Chile
followed the example of Colombia and submitted on the edge
of the time-limit fixed by the Rules, i.e. 3 months after the
deposit of the Bolivian Memorial,22a preliminary objection to the
jurisdiction based on Article VI of the Pact, claiming that the
Treaty of Peace and Amity between Bolivia and Chile
concluded in 1904 has settled and governed the subject-matter
of the dispute. The objection was rejected (14 to 2) and the
Court’s jurisdiction confirmed under Article XXXI on 24
September 2015.23
As the Pact has been intensively invoked and subjected to
subsequent scrutiny, what is proposed in the pages that follow
is a dissection of those provisions that shape the judicial
procedure before the Court to analyze how they operate and in
which manner or under what conditions the Court has
contributed to define them. Methodologically, the analysis first
409 Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200
nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment
of 17 March 2016 (hereinafter ‘Question of the Delimitation of the Continental Shelf beyond 200 nm
(Jurisdiction)’) and Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016 (hereinafter ‘Alleged
Violations (Jurisdiction)’).
Courtat
looks ofthe
Justice 151
judicial system of the Court under the Pact (Sect.
2);then, the study delves into the grounds invoked by States
parties to the instrument to contest the jurisdiction of the
Court (Sect.3), and the inadmissibility of the claims brought
before it (Sect. 4); thereafter, the denunciation clause of the
Pact is analyzed with special attention placed on its effects
(Sect. 5); the exercise concludes with a series of highlights of
the application of the Pact (Sect. 6).
2 Basis and Characterization of the Jurisdiction

of the Court Under the Pact
The consent and conferral of jurisdiction to the Court are

governed by Article XXXI of the Pact. This provision reads in
full
In conformity with Article 36, paragraph 2, of the Statute of
the International Court of Justice, the High Contracting
Parties declare that they recognize, in relation to any other
410411412413414
410See Article 55(2) of the Statute of the Court. This situation

did not arise since the vote in the advisory opinion concerning
the Legality of the Threat or Use of Nuclear Weapons (ICJ Reports 1996, p. 266, para
105(2)(E)).
4111The other cases with no preliminary objections were:
Maritime Dispute (Peru v. Chile) (2008-2014); Aerial Herbicide Spraying (Ecuador v.
Colombia) (2008-2013) and Certain Questions concerning Diplomatic Relations (Honduras
v. Brazil) (2009-2010). Only the first one resulted in a judgment
on the merits, being the other two discontinued.
412See Article 79(1) of the Rules of the Court.
413Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgment of
25
414 See the Declaration
September 2015, of 6 June
para. 1986 modifying
56 (hereinafter theto Negotiate Access
‘Obligation
Declaration made on 20 February 1960
to the Pacific Ocean (Jurisdiction)’).
concerning Article 36 (2) of the Statute.
152 A.R. Brotons
American State, the jurisdiction of the Court as
compulsory ipso facto, without the necessity of any
special agreement so long as the present Treaty is in
force, in all disputes of a juridical nature that arise among
them concerning: a) The interpretation of a treaty; b) Any
question of international law; c) The existence of any fact
which, if established, would constitute the breach of an
international obligation; d) The nature or extent of the
reparation to be made for the breach of an international
obligation.
The interpretation and application of Article XXXI have been
subject of considerable attention before the Court, with
particular attention placed on the question of its autonomy as
basis of jurisdiction, which has been examined from two
different standpoints: first, with respect of declarations under
the optional clause of the Statute of the Court (Sect. 2.1) and,
second, in the light of Article XXXII of the Pact, which refers to
conciliation and arbitration procedures (Sect. 2.2).
2.1 Article XXXI and Declarations Under the

Optional Clause
The interpretation of Article XXXI of the Pact and its relation

with the declarations of acceptance of the jurisdiction of the
Court under Article 36, paragraph 2, of the Statute arose in the
case concerning Border and Transborder Armed Actions (Nicaragua v.
Honduras) (hereinafter ‘Armed Actions (Nicaragua v. Honduras)'). Relying
on Article XXXI's wording, Honduras claimed that the
acceptance of compulsory jurisdiction required as a condition
to be operational the formulation of corresponding unilateral
declarations under the optional clause—reservations joined to
them equally applicable. According to this Article XXXI reigned
the jurisdiction, but was unable to govern it, being its effects
subjected to the mood of the Parties that could alter or adjust at
any time or unilaterally the scope of their consent.24The
expediency underlying Honduras's contention is perhaps better
grasped having in perspective the modification of its
declaration shortly after the filing of Nicaragua's Application to
introduce new reserves aimed at excluding the jurisdiction
over matters related to the claim.415416
415Honduras even claimed that the conclusion of the

agreement on 21 July 1957, which acted as basis of the
jurisdiction in the Arbitral Award Made by the King of Spain on 23 December 1906
(Honduras v. Nicaragua) case, implied that the reservation entered by
Nicaragua with respect of
416Article VI had been deemed applicable to its declaration
and, in consequence, Nicaragua had recognized the existence
of a link between the Pact and the declaration. This argument
fell short to explain the facts, as the Court then found in the
Judgment of 20 December 1988 stating that ‘[t]he conclusion
of the Washington Agreement could be explained much more
simply by the parties' desire to avoid any controversy over
jurisdiction, by preventing any objection being raised before
the Court either on the basis of Nicaragua’s reservation to the
25
Seeorthe
Pact Declaration
concerning theofvalidity
6 Juneof1986 modifying the
its declaration of acceptance
Declaration
of compulsory made on 20 February
jurisdiction' 1960
(supra n. 11, pp. 87-88, para 40).
154 A.R. Brotons
Be that as it may, Honduras was forced to adjust its

interpretation of Article XXXI as the procedure developed and,
confronted with a question put by one of the judges during the
hearings, it had to admit that Article XXXI could well constitute
a collective mechanism of acceptance of jurisdiction without
any additional declaration being required to trigger it—
although it insisted that where those declarations exist, it is
the latter, reservations and modifications included, that should
determine the limits of the jurisdiction.417
The Court rejected the argument that the effects of Article
XXXI were determined by the existence of declarations under
Article 36, paragraph 2; Article XXXI provides expressly that
the parties ‘declare that they recognize’ the Court’s jurisdiction
‘as compulsory ipso facto’; in this respect, the Court added:
Article XXXI does not subject that recognition to the
making of a new declaration to be deposited with the
United Nations Secretary-General in accordance with
Article 36, paragraphs 2 and 4, of the Statute. It is
drafted in the present indicative tense, and thus of itself
constitutes acceptance of the Court’s jurisdiction. 418
Ultimately, it was of little practical relevance whether Article
XXXI was considered a conventional provision conferring
jurisdiction to the Court in conformity with Article 36,
paragraph 1, of the Statute, or a collective declaration of
acceptance under Article 36, paragraph 2. The Court settled
the discussion drawing the attention to the fact that the
declaration had been incorporated to the Pact as Article XXXI;
in consequence, it was the Pact itself that governed the
modification. The Court reasoned that:
[Article XXXI] nowhere envisages that the undertaking
entered into by the parties to the Pact might be amended
by means of a unilateral declaration made subsequently
under the Statute, and the reference to Article 36,
paragraph 2, of the Statute is insufficient in itself to have
that effect.
The Court went on:
The fact that the Pact defines with precision the
obligations of the parties lends particular significance to
the absence of any indication of that kind. The
417Armed Actions (Nicaragua v. Honduras) (Judgment), supra n. 11, pp. 83-
84, paras 30-33.
418 Ibid., p. 84, para 32.
21
Court of Justicein Article XXXI applies ratione materiae to the
commitment 155
disputes enumerated in that text; it relates ratione personae to
the American States parties to the Pact; it remains valid
ratione temporis for as long as that instrument itself remains in
force between those States.419
Moreover, after referring to a series of provisions aimed at
restricting the scope of the consent given to the
jurisdiction,420and evoking the faculty to enter
419Ibid., paras 33-34.

420Ibid., pp. 84-85, para 35. The provisions cited referred to
matters that fall exclusively within domestic jurisdiction (Article
V), or which have been already settled or are governed by
other instruments (Article VI), as well as specific rules relating
to diplomatic protection where access to justice has not been
25
See the
made Declaration
available beforeof 6 June 1986
domestic courtsmodifying the
of the respective State
Declaration
(Article VII).made on 20 February 1960
Court of Justice
reservations in conformity with the law of treaties and Article 156
LV of the Pact, the Court concluded with a reasoning that has
421
turned into some sort of canon of interpretation repeated

every time the question arises, noting that:
[Article XXXI] is an autonomous commitment, independent of any
other which the parties may have undertaken or may
undertake by depositing with the United Nations
Secretary- General a declaration of acceptance of
compulsory jurisdiction under Article 36, paragraphs 2
and 4, of the Statute. Not only does Article XXXI not
require any such declaration, but also when such a
declaration 422
is made, it has no effect on the commitment resulting from
that Article.
The Court looked with caution at the travaux préparatoiresof the
Pact423and the practice of the Parties after its entry into
force424so as to confirm that the commitment under Article
XXXI was independent of the declarations.425Having concluded
on the autonomy of Article XXXI, there was no possible way to
restrict or circumvent the commitment of Honduras on this
basis,426making unnecessary for the Court to turn itself to the
declarations as second basis invoked by Nicaragua.
In analyzing the autonomy of Article XXXI with respect of
the unilateral declarations of acceptance of the jurisdiction of
the Court, a case of particular interest is the Territorial and Maritime
Dispute case. In this instance, the relation between the two
bases of jurisdiction was mediated by Article XXXIV, invoked
by Colombia in combination with Article VI. Article XXXIV
provides that:
If the Court, for the reasons set forth in Articles V, VI and
VII of this Treaty, declares itself to be without jurisdiction
421Ibid., Article LV of the Pact refers to reservations providing
that the latter ‘shall, with respect to the State that makes
them, apply to all signatory States on the basis of reciprocity’.
422Ibid., pp. 84-85, paras 35-36 (emphasis added). See also
Nicaragua v. Colombia (Jurisdiction), supra n. 14, p. 873, para 134.
42332‘as not all the stages of the drafting of the texts at the
Bogota Conference were the subject of detailed records’ (Armed
Actions (Nicaragua v. Honduras) (Judgment), supra n. 11, pp. 85-86, para
37; see also pp. 86-87, paras 38-39).
424Ibid., pp. 87-88, para 40.
425Ibid., p. 88, para 41. See also the Separate Opinion of Judge
Shahabuddeen (ibid., pp. 133-144).
Nicaragua v. Colombia (Jurisdiction), supra n. 14, pp. 870-
36
426Ibid., p. 90, para 48.

871, paras 123-126.
Court of Justice
to hear the controversy, such controversy shall be 157
declared ended.
According to Colombia, to the extent that Article XXXIV
required the Court to declare a controversy ‘ended’ when it
lacks jurisdiction on grounds set forth in Article VI, Article XXXI
turned into the only basis of jurisdiction applicable between
the Parties. The Pact was not only lex specialis, but also lex posterior
to their declarations under the optional clause once considered the
date of its entry into force with respect of the dates of those
declarations. Colombia went so far as to force the
interpretation of some passages of the Judgment of 1988 in
Armed Actions (Nicaragua v. Honduras) case to support its
construction.36
For Nicaragua, the scope of Article XXXIV was, on the
contrary, clearly circumscribed to and by the Pact itself. One
thing was that the dispute could end
158 A.R. Brotons
as consequence of a lack of jurisdiction under Article XXXI;
quite another that this would suffice to automatically exclude
the assessment of the declarations. The priority of Article XXXI
did not perforce amount, or translate into, exclusivity.
Moreover, the objective of the Pact was not to restrict the
scope of the obligations, but to extend the scope of the
jurisdiction of the Court. In addition, the Judgment of 1988
that Colombia was seeking to repurpose had established the
autonomy and intrinsic value of the two basis of jurisdiction;
and the sole reason to not subject the declarations under the
optional clause to further scrutiny in that case was the clarity with
which Article XXXI established the jurisdiction over the object
of the dispute.427
The Court adopted a substantial part of the thesis put
forward by Nicaragua, and denied the selective eye shown by
Colombia in reading into the Armed Actions (Nicaragua v. Honduras)
decision. The Court explained that the analysis of Article XXXI
as a separate or autonomous commitment in that case was
confined to address, and reject, the argument made by
Honduras in the circumstances of the case.428The Court
considered that.
the provisions of the pact of Bogota and the declarations
made under the optional clause
represent two 429 distinct bases of the Court’s jurisdiction which are
not mutually exclusive.
In Armed Actions (Nicaragua v. Honduras) case, the Court had

decided to consider first its jurisdiction under Article XXXI so as
to proceed from the particular to the general, without ascribing
additional or hierarchical meanings; in the Court’s words, the
choice was made ‘without thereby implying that the Pact of
Bogota prevailed over and excluded the second title of
427Ibid., pp. 871-872, paras 128-130.

428‘In particular, by stating that the commitment under Article
XXXI is an autonomous commitment, independent from an
optional clause declaration, the Court explained why “the
commitment in Article XXXI can only be limited by means of
reservations to the Pact itself’ (ibid.)’ (ibid., p. 873, para 134).
429Ibid., p. 873, para 136—emphasis added.
Court of Justice
jurisdiction, namely the optional clause declarations.’ 430 159
It is however worth stressing the illustrative value of this
case when it comes to the particular scenario where, in the
absence of clear or no basis under Article XXXI, declarations
can still provide with an alternativa title of jurisdiction. This
arose in the context of the question of the sovereignty over
the San Andres, Providencia and Santa Catalina. The Court had
upheld Colombia’s preliminary objection concerning their
sovereignty, and the outstanding issue was whether the
declarations, not subjected to Article VI effects, could still offer
the jurisdictional basis to sustain this part of the claim. 431
The Court reached a negative conclusion. Having decided
that the sovereignty over the three islands had been solved by
the 1928 treaty, how could it sustain its jurisdiction over a
question already solved—the Court dixit—at the date of the
entry into force of the Pact? Concerned about coherence, the
Court opted for denying the existence of a ‘legal dispute’—a
premise that nevertheless fell within the scope of its remit
pursuant Article 36, paragraph 2.432
The dispute, no doubt, existed. As consequence, some
judges in the minority voiced their criticism.433Judge Bennouna
asked:
if the Court is not indirectly concurring with Colombia’s
argument that jurisdiction by virtue of the Pact of Bogota
is exclusive of all other bases of jurisdiction and, in this
case, of that based on the optional declarations [.. .] 434
In his view, the contradiction could have been avoided by
leaving aside unclear bases under the Pact. i.e. Article XXXI,
430Ibid., pp. 872-873, para 133.

431Ibid., pp. 872-873, paras 132 and 137.
432Ibid., pp. 873-874, para 138.
433See the Dissenting Opinion of Vice-President Al-Khasawneh
(ibid., pp. 884-885, paras 18-19), the Separate Opinion of Judge
Ranjeva (ibid., pp. 890-891, paras 12-14) and the Dissenting
Opinion of Judge Bennouna (ibid., pp. 929-933, para 2). The
objective existence of the dispute is also explicit in the
declarations appended by Judge Simma (ibid., pp. 896-897) and
Judge ad hoc Gaja (ibid., p. 934).
434Ibid., p. 930, para 2.
160 A.R. Brotons
and adopting the title providing the Court with more
uncontroversial jurisdiction, i.e. the declarations under the
435
optional clause.
Two judges voting with the majority on this point seemed,
in any case, to sympathize with the reasoning by
Colombia.436In particular, Judge Abraham, who confessed that
the motivation of the Court left him ‘utterly perplexed,
’437pointed out that in its Judgment of 1988:
[the Court] did not reject the contention that optional
declarations under Article 36 could form a separate,
sufficient basis for jurisdiction in disputes between States
parties to the Pact [...] But this is no argument in support
of the contention which the Court in 1988 did not reject
[...] Here then is a point of law on which the earlier
decision is silent (because the matter was reserved) and
it would therefore be necessary to explain why this issue438
should today be decided one way rather than the other.
This is what, according to Judge Abraham, the Judgment did
not do. Judge Abraham was of the view that the Pact set up
between the Parties a mechanism of judicial settlement before
the Court that, being exclusive with respect of any other,
leaves inoperative the declarations under the optional clause
between them.439
435Ibid., p. 931, para 2.
436See the Declaration of Judge Parra-Aranguren (ibid., p. 892)
and the Separate Opinion of Judge Abraham (ibid., p. 904, para
4 and pp. 918-920, paras 53-63).
437 Ibid., p. 919, para 57. The affirmation that there existed no
41
dispute between the Parties over the three islands seemed to

fly, Judge Abraham said, against the most basic common
sense and rested ‘on a total, and alarming, distortion of the
concept itself of “dispute”’ (ibid., para 58).
438Ibid., pp. 917-918, para 52, referring to paragraph 133 of the
Judgment in particular.
439‘In particular, the language specific to Article XXXIV of the
Pact, stating that, if the Court declares itself to be without
jurisdiction to hear a controversy for one of the reasons set out
in Articles V, VI or VII, the controversy “shall be declared
ended”, seems to me clearly to preclude submission of the
same dispute to the Court on the basis of a different title of
jurisdiction after the
Court has handed down a judgment declining jurisdiction
161 A.R. Brotóns
2.2 Article XXXI and Prior Procedures Under Article XXXII
A further characterization of the judicial regime of the Court

under Article XXXI resulted from the invocation and analysis of
Article XXXII of the Pact, which provided with the opportunity
to observe an additional autonomy of the bases of jurisdiction
under the Pact. This provision entitles the parties to seize the
Court, but makes it contingent on the exhaustion of prior
procedures, i.e. conciliation and arbitration, in the following
terms:
When the conciliation procedure previously established in
the present Treaty or by agreement of the parties does
not lead to a solution, and the said parties have not
agreed upon an arbitral procedure, either of them shall
be entitled to have recourse to the International Court of
Justice in the manner prescribed in Article 40 of the
Statute thereof. The Court shall have compulsory
jurisdiction in accordance with Article 36, paragraph 1, of
the said Statute.
The question that arises is how the jurisdiction and
procedures under Article XXXII operate vis-à-vis Article XXXI.
Can they qualify the manner in which Article XXXI creates and
confers jurisdiction to the Court? Do they interfere with Article
XXXI? These issues emerged and were dealt with in the Armed
Actions (Nicaragua v. Honduras) dispute.
In this case, Honduras had sought to create a sort of legal
bond between Article XXXI and Article XXXII arguing that they
formed an indivisible unit calling for a joint interpretation.
According to Honduras, pursuant to Article XXXII, a claim
under Article XXXI required a previous, and unsuccessful,
attempt by the parties to, first, seek a conciliation and, then,
submit the dispute to arbitration.440An interpretation and
under the Pact of Bogota’ (ibid., p. 918, paras 53-56). For a

contrary view, see the Declaration of Judge Simma (ibid., pp.
896-897).
162 A.R. Brotons
understanding of the provision that could not be shared by
Nicaragua. In its view, Article XXXI and Article XXXII,
autonomous and independent provisions, far from constituting
such a tandem, should be taken separately as they constituted
distinct bases under the Pact.
This was also the understanding of the Court441which, in
arguing the independence of Article XXXI, noted three
fundamental reasons to support it. First, the reading of Article
XXXII proposed by Honduras was contrary to the terms of the
provision, and Article XXXI contained no reference to Article
XXXII.442Second, it was only Article XXXII that referred to the
jurisdiction based on Article 36, first paragraph, of the Statute
and, in this respect, the Court further noted that:
[that reference] would be difficult to understand if, as
Honduras contends, the sole purpose of Article XXXII
were to specify the procedural conditions for bringing
before the Court disputes for which jurisdiction had
already been conferred upon it by virtue of the
declaration made in Article XXXI, pursuant to Article 36,
paragraph 2.443
Finally, the Court, drawing support from the presumed
intention of the drafters and the travaux préparatoires,found that if
the reasoning of Honduras were to be followed
[it] would however imply that the commitment, at first
sight firm and unconditional, set forth in Article XXXI
would, in fact, be emptied of al1 content if, for any
reason, the dispute were not subjected to prior
conciliation. Such a solution would be clearly444 contrary to
both the object and the purpose of the Pact.

90, paras 42-47.
442Ibid., p. 89, para. 45. It is true that, as the Court observed,
the French version of the text, in referring to ‘droit de porter la question
devant la Cour’ in Article XXXII instead of using the term ‘differend’ as
Article XXXI does, ‘leaves room for uncertainty’, however, the
‘Spanish, English, and Portuguese versions speak, in general
terms, of an entitlement to have recourse to the Court and do
not justify the conclusion that there is a link between Article
XXXI and Article XXXII’.
443Ibid.
Court
The of Justice was further explained by clarifying first that
distinction 163
both constitute ways providing legal basis to seize the Court.
However, the distinctive feature between them lies in how the
Court is or can be seized. While Article XXXI facilitates this
access in a direct manner, Article XXXII requires a recourse to
conciliation as a previous step. Unlike Article XXXII, Article
XXXI embodies a fast-track access of sorts in that it runs in
parallel and unaltered by the exhaustion of the procedures
prescribed by Article XXXII. In applying this to the case at
hand, the Court concluded that, to the extent that Nicaragua
had exclusively relied on Article XXXI, whether the dispute had
been submitted to those procedures was irrelevant for the
purposes of jurisdiction under Article XXXI:
It is accordingly not pertinent whether the dispute
submitted to the Court has previously been the subject of
an attempted conciliation, nor what interpretation is given
to Article XXXII in other respects, in particular as regards
the nature and the subject-matter of the disputes to
which that text applies.
Consequently,
It is sufficient for the Court to find that the second
objection put forward by Honduras is based upon an
incorrect interpretation of that Article and, for that
reason, cannot be accepted.445
3 Grounds Excluding the Jurisdiction of the Court
The acceptance and conferral of jurisdiction to the Court on

the part of States parties to the Pat of Bogota are not
unfettered, and grounds limiting its purview have been
discussed in the context of preliminary objections based on
Article VI of the Pact. This provision prescribes that the
procedures envisaged in the Pact, i.e. good offices and
mediation, investigation and conciliation, judicial and arbitra-
tion procedures:
may not be applied to matters already settled by
arrangement between the parties, or by arbitral award or
by decision of an international court, or which are
governed by agreements or treaties in force on the date

90, para 47.
164 A.R. Brotons
of the conclusion of the present Treaty.
The rationale underpinning Article VI is essentially aimed at
ensuring that the mechanisms of settlement of disputes spelt
out in the Pact are not used, and misused, to reopen
agreements or past decisions; in other words, this provision
enshrines the protection of the principle of pacta sunt servanda, and
the observance of res iudicata in the Pact, both of paramount
importance for the stability of legal relations and the finality of
proceedings.446
Article VI of the Pact received major attention before the
Court with respect of its pacta sunt servanda facet, being the
existence of treaties that allegedly covered the subject-matter
of the dispute (Sect.3.1) and the effects of exclusion pursuant
to article XXXIV (Sect.3.2), the main reasons for its invocation
and scrutiny before the Court.
3.1 Article VI: Pacta Sunt Servanda
Article VI received major attention in two cases, namely Territorial and

Maritime Dispute (Nicaragua v. Colombia), and Obligation to
negotiate access to Pacific Ocean (Bolivia v. Chile).
As for the former, Article VI constituted the legal basis of
the first preliminary objection raised by Colombia. In this case,
the interpretation and application of this provision required to
deal with two preliminary points. The first one concerned the
object of the dispute and, more in particular, whether or not
the 1928 treaty—and 1930 protocol—have indeed settled
and/or govern the object of the dispute. The second was
whether or not the 1928 treaty was an instrument in force at
the time of the signature of the Pact, 30 April 1948. 447
446For the drafting history of Article VI of the Pact from Peru’s

proposal to the Plenary’s approval, of the final text, see Ninth
International Conference of American States, Bogota, 30 March
1948-2 May 1948, Records and Documents, 1953, Vol. I, p. 234, Vol. II,
pp. 435-591 and Vol. IV, pp.134-136.
447Nicaragua v. Colombia (Jurisdiction), supra n. 14, p. 857, para 73
Court
The of Justice
Court, reversing this order,448dealt first with the 165
question of whether Barcenas-Esguerra treaty was in force at the
relevant time—assuming that a treaty in force must be validly
concluded.449Two fundamental reasons motivated its
affirmative response. On the one hand, the behaviour of
Nicaragua, which had invoked the nullity of the treaty only in
1980 and, on the other, the fact that at the time of the
signature and ratification of the Pact Nicaragua had entered no
reservation to Article VI in relation with the status of the 1928
treaty.450As it has been observed, this argument (the time
elapsed and acquiescence), could be pertinent to call into
question the right of Nicaragua to contest the validity of the
treaty where the cause of nullity invoked was a violation of the
Nicaraguan Constitution in force at the time; however, it
presented serious porosities where the cause of nullity alleged
was not remediable, as occurred with the case of coercion. 451
and p. 859, para 82. In his Separate Opinion, Judge Abraham
pointed out that ‘Article VI must be read as a bar to the Court’s
jurisdiction where the disputed matter is governed by a Treaty
which was in force in 1948 (as is written), provided that the
Treaty is still in force at the date the proceedings are instituted
(as is implied)’ (ibid., p. 912, para 26). See also that of Judge
Ranjeva (ibid., p. 890, para 10).
448As rightly pointed out by Judge Abraham, once decided
that a dispute or a part of it was not settled or governed by
the treaty, there was no need to look at whether 1928 Treaty
was in force at the time of the conclusion of the Pact (ibid., pp.
907-908, para 15).
449See the Separate Opinions of Judge Ranjeva (ibid., p. 890,
para 10) and Judge Abraham (ibid., p. 913, para 30), Jugde
Bennouna (Ibid., p. 924).
450Nicaragua v. Colombia (Jurisdiction), supra n. 14, pp. 858-859,
paras 77-81. The Court adopted the arguments advanced by
Colombia as to the absence of reservations in the case, noting
that Nicaragua had took good care to enter one reservation
concerning the arbitral awards (ibid., p. 858, para 76).
451See the Separate Opinion of Judge Abraham (ibid., pp. 913-
166 A.R. Brotons
Having thus concluded that the Barcenas-Esguerra treaty was
valid and in force, the Court addressed the second question,
namely whether the different parts of the object of the dispute
had been settled or were governed by this treaty. In this
respect, the Court considered that:
in the specific circumstances of the present case, there is
no difference in legal effect, for the purpose of applying
Article VI of the Pact, between a given matter being
“settled” by the 1928 Treaty and being “governed” by
that Treaty”. In light of the foregoing, the Court will
hereafter use the word “settled”.452
As noted above, the Court had found that the 1928 treaty
established the Colombian sovereignty over the islands of San
Andres, Providencia, and Santa Catalina, while other aspects of
the territorial and maritime dispute were all open to
discussion.453
A second case in point is the Obligation to Negotiate Access to the
Pacific Ocean (Bolivia v. Chile) case. In reality, the interpretation of
Article VI in this case had a very limited interest, for the
debate was primarily dominated by the definition of the object
of the dispute. Thus once resolved this question, its impact on
the issue of the applicability of Article VI was entirely
predictable. Chile essentially alleged that the Application filled
by Bolivia masked an intention to review the Treaty of Peace
and Amity signed at Santiago on 20 October 1904. According
to Chile, this treaty had settled and governed the object of the
dispute in the sense of the terms of Article VI and,
consequently, the Court had to declare the claim inadmissible.
916, paras 33-34 and 41-46) and the Dissenting Opinion of
Judge Bennouna (ibid., pp. 924-925). This opinion is also shared
by Judge Simma: ‘To say that Nicaragua, by its behaviour
concerning the 1928 Treaty somehow forfeited the right to
invoke its invalidity, is one thing; to go on from there to find
that, for the same reasons, the Treaty was actually valid and in
force on the date of the conclusion of the Pact of Bogota in
1948, is quite another. In my view, the second conclusion does
not follow from the first’ (ibid., pp. 894-895).
452Nicaragua v. Colombia (Jurisdiction), supra n. 14, p. 848, para 39.
453Ibid., pp. 860-869, paras 83-120.
Court of Justice
However, 167
the Court rejected this argument and, endorsing
the Bolivian contentions, which at no time of the procedure
referred to a dispute linked to the treaty in question, concluded
that the obligation to negotiate a sovereign access to the
Pacific Ocean, if existing—a question to be determined on the
merits—stemmed from legal basis other than the 1904
treaty.454
Thus, the attempt to modify the object of the dispute
unveiled, the fate of the objection was inescapable. After
reviewing summarily the content of the 1904 treaty, and the
position of the Parties with respect of Article VI,455the Court
concluded that the provisions of this treaty:
do not expressly or impliedly address the question of
Chile’s alleged obligation to negotiate Bolivia’s sovereign
access to the Pacific Ocean. In the Court’s view,
therefore, the matters in dispute are matters neither
“settled by arrangement between the parties, or by
arbitral award or by decision of an international court”
nor “governed by agreements or treaties in force on the
date of the conclusion of the [Pact of Bogota]” within the
meaning of Article VI of the Pact of Bogota. This
conclusion holds regardless of whether, as Chile
maintains, the two limbs of Article VI have a different
scope [...] The Court does not, therefore, find it
necessary in the circumstances of the present case to
determine whether or not there is a456distinction between
the legal effect of those two limbs.
To conclude, it is interesting to briefly note that the question
of the non-exclusive preliminary character of the objection
seemingly arose in the deliberation room. Chile did not seek to
join the objection to the merits as alternative in the event of
rejection; it was only Bolivia that, out of caution, had
contemplated the possibility on a subsidiary basis, premised on
a scenario discarded by the Court as consequence of the
rejection of Chile’s objection.457However, the issue made its
454Obligation to Negotiate Access to the Pacific Ocean (Jurisdiction), supra n. 23, paras 25-36.
456Ibid., para 50. For a distinction of the two limbs, see the
Declaration by Jugde Gaja, paras 2-3.
457Bolivia had contended that, if the Court addressed the
objection on the basis of Chile’s characterization of the dispute,
this would amount to a confirmation of Bolivia’s case on the
merits, and would therefore not possess an exclusive
168 A.R. Brotons
way in the Judgment and two paragraphs were dedicated to
affirm that the Court possessed the elements required to rule
on the objection without jeopardizing, wholly or in part, the
merits of the case458—a criterion worth analyzing in further
detail in the context of the effects of Article VI.
3.2 Meaning of Article XXXTV
Arguably, one of the most intriguing aspects of the exclusion of

jurisdiction under the Pact concerns the effects pursuant to
Article XXXIV. As noted elsewhere, Article XXXIV had made its
appearance in the context of Colombia’s strategy aimed at
isolating Article XXXI to declare the dispute ended to avoid an
assessment of the declarations for determining the bases of
jurisdiction in the Territorial and Maritime Dispute; and it was the joint
invocation of Article VI and XXXIV that offer the opportunity to
observe the controversial character of this provision on full
display. The Court’s finding that the 1928 Treaty had settled
the question of the jurisdiction over the three islands San
Andres, Providencia, and Santa Catalina, led the Court to
uphold the objection on the basis of Article VI, and Article
preliminary character. Chile’s characterization rejected, the
argument played no subsequent role, see Obligation to Negotiate Access to
the Pacific Ocean (Jurisdiction), supra n. 23, para 50.
458See ibid., paras 52-53. For further reflections on this specific
issue, see the Declaration of Judge Gaja, para 4 and the
Dissenting Opinion of Judge ad hoc Arbour, paras 18-30. In
Jugde Bennouna’s opinion, these paragraphs turned out to be
‘redundant and misconceived’ because ‘[t]he Court had already
defined the subject-matter of the dispute submitted to it [...],
and had dismissed Chile’s objection based on Article VI of the
Pact of Bogota [...] That argument [Bolivia’s] had become
moot once the Court had rejected the definition proposed by
Chile. It is therefore difficult to see why, just before setting out
the Judgment’s final conclusion, the Court enters into pointless
discussions on the issue of the objection’s exclusively
preliminary character’ (para 2).
Court of
XXXIV Justice
came 169
into play raising red flags worth noticing in detail.
The implications of this part of the decision are most clearly
illustrated by referring first to the particular character of Article
XXXIV, and the end of the dispute that it imposes:
If the Court, for the reasons set forth in Articles V, VI and
VII of this Treaty, declares itself to be without jurisdiction
to hear the controversy, such controversy shall be declared ended.
(emphasis added).
In this respect, it would seem that the drafters of the Pact,
intentionally or not, required the Court to precipitate a decision
on the merits at a preliminary stage.
Indeed, the logic of Article XXXIV cannot be fully grasped
unless it is assumed that a decision based on Article VI affects
the merits of the case. Judge Abraham captured well its
specifics by referring to the transmutable nature of the provision:
the fact that the provisions of a treaty in force defeat the
claims made by a State before the Court is a ground,
under Article XXXIV of the Pact, for the Court’s lack of
jurisdiction, whereas under the general regime this fact would
justify rejecting the claims on the merits.
In other words, in the special system established by the
Pact, what would be strictly a question on the merits under the
general459 regime [...] is transmuted into a question of
jurisdiction.
The short-circuit that Article XXXIV implies becomes more

apparent when it is observed against the content and primacy
of the Court’s procedure. Article 1 of the Court’s Statute
provides that the Court ‘shall function in accordance with the
provisions of the present Statute’; in addition, it is the Pact
itself that in Article XXXVII refers to the Court’s Statute as the
applicable procedure stating clearly that the latter ‘shall be that
established in the Statute thereof’.
459Nicaragua v. Colombia (Jurisdiction), supra n. 14, Separate Opinion

of Judge Abraham, p. 906, para 8—emphasis in the original.
According to the Judge Abraham, ‘ [i]n particular, the language
specific to Article XXXIV of the Pact, [...], seems to me clearly
to preclude submission of the same dispute to the Court on the
basis of a different title of jurisdiction after the Court has
handed down a judgment declining jurisdiction under the Pact
of Bogota’ (ibid., p. 918, para 55). For a different view, see the
Declaration of Judge Simma, Declaration (ibid., pp. 896-897).
170 A.R. Brotons
It is against this backdrop that is worth stressing how
drastically different the fate of the dispute was with respect to
its different parts. While the Court’s findings regarding the
jurisdiction over the other parts of the claim left the merits
unaffected—with the possibility for the parties to come back
and present their respective positions in detail,460the fact that
the Court decided to uphold, in the jurisdictional phase, the
objection concerning the sovereignty over the islands based on
Article VI put a final stop to the question. No doubt, this
should ring alarm bells when it comes to cases like this one
where it was clear that the ruling was, partly pushed by
Colombia’s peculiar formulation of the objection, the con-
sequence of delicate navigations through jurisdiction and
merits that resulted in an adjudication touching on the
substance of the case, and closing it for good.461
Arguably, the rough waters could have been avoided by
qualifying the objection as having a non-exclusive preliminary
character and, in accordance with Article 79 (9) of the Court’s
Rules, join it to the merits.462Indeed, in Nicaragua’s opinion, it
was difficult to find a better example of an objection that,
according to the rule, ‘does not possess, in the circumstances
of the case, an exclusively preliminary character.’ This was,
however, not the opinion of the Court, which considered the
option ‘not in the interest of the good administration of
justice’; the motivations were explained in the following terms:
In principle, a party raising preliminary objections is
460As the Judgment of 19 November 2012 would clearly

illustrate 5 years later. For interesting remarks on this, see ibid.,
Separate Opinion of Judge Abraham, pp. 908-910, paras 16-
21.
461See ibid., p. 906, para 8.
462Article 79(9) of the Rules of the Court reads: ‘After hearing
the parties, the Court shall give its decision in the form of a
judgment, by which it shall either uphold the objection, reject
it, or declare that the objection does not possess, in the
circumstances of the case, an exclusively preliminary
character’.
Court of Justice
entitled to have these objections answered at the 171
preliminary stage of the proceedings unless the Court
does not have before it all facts necessary to decide the
questions raised or if answering the preliminary objection
would determine the dispute, or some elements thereof,
on the merits.
The lack of sufficient elements or the possibility to
jeopardize the integrity of the merits singled out, the Court
concluded, however, that this would not be an issue here:
The Court finds itself in neither of these situations [...]
The determination by the Court of its jurisdiction may
touch upon certain aspects of the merits of the case
(Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925,
P.C.I.J., Series A,
No. 6, p. 15).
And, to the extent that the matters settled by the 1928

Treaty and 1930 Protocol ‘does not constitute the subject-
matter of the dispute on the merits’, it was added that ‘[i]t is
rather a preliminary question to be decided in order to
ascertain whether the Court has jurisdiction.’ 463
A question, the Court said, preliminary. Perhaps it was right,
and the objection was preliminary, but the next and more
natural inquire given the implications was whether it was
exclusively preliminary. This option ruled out, Article 79 (9)
narrowed down the possibilities: either reject the objection or
join it to the merits. Anything else would have implied the
banality of the claim or the possibility to provide a response in
limine simple. Was this the opinion, barely voiced, of the Court?
In speculating with plausible explanations, one is inclined to
think that the reason behind this decision was an overriding
desire of the majority to get rid of the question of the validity
of 1928 Treaty, with the issue of coercion pinching the
nerves.464The modification of the subject of the dispute
463Nicaragua v. Colombia (Jurisdiction), supra n. 14, p. 852, para 51.
464See the Declaration of Judge Keith (ibid., p. 921, para 1).
Jugde Tomka, more explicitly, after expressing that the Court
had ‘sound legal grounds to rule on the objection’, examined
and rejected the causes invoked by Nicaragua highlighting that
‘the Court would not have been able to reach a decision about
the alleged coercion without examining the lawfulness of the
United States conduct, when that State is not a party to these
proceedings’ (Declaration, ibid., pp. 899-901, paras 8-13). Judge
Abraham critically pointed out that ‘[s]ince the explanation for
172 A.R. Brotons
bypassing this aspect,465or the treatment of its termination—
which also gave a good picture of the merits cards
this apparent contradiction cannot be a lack of consistency on

the part of my colleagues, I can only suppose that the Court
simply wished here to decide the merits of the dispute. In
doing so, it has over-stepped the role assigned to it at this
stage in the proceedings’ (Separate Opinion, ibid., p. 912, para
27).
465Nicaragua v. Colombia (Jurisdiction), supra n. 14, p. 849, para 40;
see the Dissenting Opinion of Judge Al-Khasawneh (ibid., p. 882,
paras 15-16), particularly critic with the demarche.
173 A.R. Brotons
on the table,466are elements lending support to this
impression. In any event, the cost of the ruling was not
missed, and judges voting with the dissenting minority insisted
not only on the sharp contrast between the stage of the
proceedings and the depth of the elements prematurely
addressed,467but also on the far-reaching consequences directly
affecting the Court.468
466While affirming that the question whether the 1928 Treaty

was subject of a cause of termination as result of a substantial
breach in 1969 aspect was irrelevant for the purposes of
determining the jurisdiction, and that ‘that issue will not be
addressed by the Court at this stage’, the Court continued:
‘Even if the Court were to find that the 1928 Treaty has been
terminated, as claimed by Nicaragua, this would not affect the
sovereignty of Colombia over the islands of San Andres,
Providencia and Santa Catalina. The Court recalls that it is a
principle of international law that a territorial regime
established by treaty “achieves a permanence which the treaty
itself does not necessarily enjoy” and the continued existence
of that regime is not dependent upon the continuing life of the
treaty under which the regime is agreed (Territorial Dispute (Libyan Arab
Jamahiriya/ Chad), Judgment, I.C.J. Reports 1994, p. 37, paras 72-73)’ (Territorial and
Maritime Dispute (Jurisdiction), supra n. 14, p. 861, para 89). Judge ad
hoc Gaja went so far as to state that ‘the adoption by Colombia
of a wide interpretation of the scope of the 1928 Treaty as
including a maritime delimitation, even if incorrect, cannot
conceivably constitute a material breach’ (Declaration, ibid., p.
934).
467See Dissenting Opinion of Judge Al-Khasawneh (ibid., pp.
878-883, paras 2, 4-6, 9, 11-12 and 15-16); Separate Opinion
of Judge Ranjeva (ibid., pp. 886-890, paras 2, 5-6, 8 and 10-11);
Separate Opinion of Judge Abraham (ibid., pp. 904, 908-910,
914-917, paras 4, 16-20 and 34-49) and Dissenting Opinion of
Judge Bennouna (ibid., pp. 923-929, para 1).
174 A.R. Brotóns
4 Causes of Inadmissibility of Claims
Causes of inadmissibility of claims brought before the Court

under the Pact of Bogota have been discussed in the light of
two provisions, namely Article II, which concerns the existence
of diplomatic negotiations (Sect. 4.1) and Article IV, which
refers to ongoing procedures (Sect. 4.2).
4.1 Article II and Diplomatic Negotiations
Article II of the Pact received considerable attention in the

dispute concerning Armed Actions (Nicaragua v. Honduras), closely
analyzed against the backdrop of the so-called Contadora
process.469Honduras invoked Article II, which provides:
The High Contracting Parties recognize the obligation to
settle international controversies by regional procedures
before referring them to the Security Council of the
United Nations.
Consequently, in the event that a controversy arises
between two or more signatory states which, in the
opinion of the parties, cannot be settled by direct
negotiations through the usual diplomatic channels, the
parties bind themselves to use the procedures established
in the present Treaty, in the manner and under the
conditions provided for in the following Articles, or,
alternatively, such special procedures as, in their opinion,
will permit them to arrive at a solution.
Honduras claimed that, pursuant to Article II, there existed
a pre-condition to the application of the procedures envisaged
468In Judge Bennouna’s words: ‘Beyond the dispute between

Nicaragua and Colombia, such a decision to rule on the validity
of a treaty in the jurisdictional phase, and as a result to settle
the issue of sovereignty over the three islands in question,
constitutes an unfortunate precedent, because it prejudices the
outside world’s perception of the role and function of the
Court. Those who thought they were banishing in this way any
doubts over territorial treaties, which might have a
destabilizing effect, did not consider for a moment what would
be the scope of the damage caused to the Court by a hasty
decision in this jurisdictional phase’ (ibid., p. 929, para 1).
469For a background and description of the process, see Armed
86
Ibid.,
Actions para v.
(Nicaragua Judge(Judgment),
76.Honduras) Shahabuddeen n. 11,
supra was pp. 96-98, paras
particularly
70-74 and pp. 100-103, paras 80-88.
skeptical with Honduras’s behavior and
noted some internal contradiction; in his opinion, the
conclusion of the Court ‘is strengthened by
Court
in of Justice
the Pact according to which the parties were required to 175
agree on the impossibility to resolve the dispute by direct
diplomatic negotiations. A requisite that, in its opinion, had not
been fulfilled, for the framework of the Contadora process had
not been exhausted. Nicaragua had failed to show that, in the
opinion of the parties, the dispute could not be settled by
direct negotiations. In addition, in Honduras’s view, Article II
also entailed the requirement to manifest it.470Nicaragua, in
submitting the dispute to the Court, did not comply with Article
II: the parties did not share the opinion that the possibility of
settlement by direct negotiations has been exhausted, and the
dispute could still have been settled through diplomatic
channels.
For Nicaragua, it was highly disputable that the recourse to
the procedures was available only where the parties
considered that the dispute could not be settled by direct
negotiations. According to Nicaragua, Article II envisaged one
circumstance among others in which the parties bind
themselves to use those procedures. In addition, Nicaragua
drew the Court’ s attention to the right to veto that Honduras’s
interpretation would create as a recalcitrant party could suffice
to erode the compulsory jurisdiction. In Nicaragua’s view, the
relevant question was not so much whether one of the parties,
or both, think that the dispute cannot be settled by those
means, but whether the dispute could in fact be settled by
them. Accordingly, Article II required the Court to make
abstraction of the opinions, and assess objectively the real
prospects of a settlement by direct negotiation.
In interpreting Article II, the point of departure was that this
provision did indeed establish ‘a condition precedent to
recourse to the pacific procedures of the Pact in all cases’, and
the relevant question for the Court was how it applied here.
Rejecting abstractions, the Court pointed out that Article II
referred expressly to the opinion
470Ibid., p. 93, para 60.

176 A.R. Brotóns
of the parties and it was this opinion that should be proved by
looking not so much at what they say but rather at what they
do, to assess the behavior and intention on 28 July 1986 as the
critical date.471
To this end, the Court proceeded on the basis of the
strictest interpretation— ‘whether the “opinion” of both Parties
was that it was not possible to settle the dispute by
negotiation’—a criterion that should not, however, be assumed
as a final as it was closely connected to the discrepancies
between the parties as to the different versions of Article II,
which the Court did not intend to resolve.472Then, its approach
to the condition was further defined by clarifying its freedom
to assess it, irrespective of any assertion made by the parties
—a prevalence explained on the strength of its judicial function
and the evidence submitted; in this respect, it was noted:
For this purpose, the Court does not consider that it is
bound by the mere assertion of the one Party or the
other that its opinion is to a particular effect: it must, in
the exercise of its judicial function, be free to make its
own determination of that question on the basis of such
evidence as is available to it.473
Having set out the criteria, the Court proceeded to delve
into the sequence of events in the diplomatic relations
between the parties since 1980, with special attention drawn
to January 1983, date of the establishment of the Contadora
471Ibid., p. 94, paras 61-63.

472Ibid., p. 94, para 64. While the French text referred to ‘de
l’avis de l’une des parties’, i.e. in the opinion of one of the parties, the
English, Portuguese and Spanish versions the corresponding
text was ‘in the opinion of the parties’. And, in opting for a
more demanding requirement, the criterion was not mean to
be final; in this connection, it was observed that ‘[f]or reasons
which will appear, the Court’s reasoning does not require the
resolution of the problem posed by this textual discrepancy,
and it will therefore not rehearse all the arguments that have
been put forward by the Parties to explain it or to justify the
86
Ibid., para
preferring of 76.
oneJudge versionShahabuddeen was particularly
to another’ (ibid.).
skeptical with
473Ibid., p. 95,Honduras’s
para 65. behavior and
Group.474A perusal permitting the Court to conclude that,
despite multiple consultations and negotiations during this
period, the process invoked for the purposes of Article II was
in reality ‘markedly different’ from the ‘direct negotiation
through the usual diplomatic channels’ wording, and no
negotiation within the meaning and requirements under Article
II existed on 28 July 1986; in consequence:
Honduras could not plausibly maintain at that date that
the dispute between itself and Nicaragua, as defined in
the Nicaraguan Application, was at that time capable of
being settled by direct negotiation through the usual
diplomatic channels.475
The Court was led to the conclusion that ‘the provisions of
Article II of the Pact of Bogota relied on by Honduras do not
constitute a bar to the admissibility of Nicaragua’s
Application.’476
474Ibid., pp. 95-99, paras 67-75.

475Ibid., p. 99, para 75.
476giving some prominence to the circumstance that, as it
seems to me, Honduras effectively refused to embark on direct
bilateral negotiations’ (Separate opinion, ibid., pp. 151-152).
178 A.R. Brotóns
The interpretation of Article II of the Pact was also object of
analysis in Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea case. The question arose as whether on 26
November 2013, date of the filing of Nicaragua’s Application,
possibilities existed that the controversy could still be settled by
diplomatic negotiations. Building on declarations by presidents
and representatives of both States, Colombia argued that, at
the relevant date, nothing showed that the dispute could not be
settled by diplomatic negotiations. For Colombia, the recourse
to the Court was only warranted when, acting in good faith,
efforts to reach an agreement had failed and negotiations come
to a deadlocked making impossible to conceive a diplomatic
solution.* 477Article II turned into an opportunity to explain the
unfortunate declarations of Colombia’s representatives
following the Judgement of 2012, declaring that these
manifestations, far from disrespecting the Court’s Judgment,
should be interpreted as a defense of historical fishing rights, of
crucial importance for the Archipelago of San Andres. 478
Nicaragua objected this interpretation of Article II. According
to this provision, the Court’s fundamental task was to
determine objectively whether the opinion of one of the parties
was justified,479and having regard to the factual background
and declarations of the parties, it was clear that, at that date,
Colombia had already rejected the negotiation. 480Moreover,
Nicaragua drew the Court’s attention to the fact that the
subject-matter of the negotiations that Colombia was seeking
to revive for the purposes of Article II was unrelated to the
subject-matter of the dispute; in addition, while Nicaragua was
open to discuss a treaty to execute the Judgment of 19
November 2012, and reach agreements on fisheries,
environmental protection, and drugs trafficking, Colombia
systematically ignored the Court’s decision seeking instead to
negotiate maritime delimitations from the scratch, an attitude
477Alleged Violations (Jurisdiction), supra n. 19, para 82.

478
86 Ibid., paras 86-87.
Ibid., para 76. Judge Shahabuddeen was particularly
479Ibid., para 88.
skeptical
480 with Honduras’s behavior and
Ibid., para 90.
that, not unsurprisingly, was deemed unacceptable.481
The Court essentially followed its approach in the Armed Actions
(Nicaragua v. Honduras) case. In this respect, it started by recalling
its discretion to draw its own conclusions based on its judicial
function and the evidentiary material482and, then, it
acknowledged the discrepancies existing between the parties as
to the versions of the texts—again without the intention to
resolve them. Having set out the framework, the Court moved
to the assessment asking whether the evidence could
demonstrate that ‘neither of the Parties could plausibly
maintain that the dispute between them could be settled by
direct negotiations through the usual diplomatic channels.’ 483
481 Ibid., para 91.

482Ibid., para 92.
483Ibid., para 95.
180 A.R. Brotons
The Court concluded that at the critical date, i.e. when the
Application was filed, neither of the parties had shown that
diplomatic means were still a workable option. Relying on
declarations by representatives of both States, the Court
confirmed Nicaragua’s contention that the subject-matter of the
negotiations evoked bore no relation to the subject-matter of
the dispute; in this connection:
According to Nicaragua, negotiations between the Parties
should have been conducted on the basis that the
prospective treaty would not affect the maritime zones as
declared by the 2012 Judgment. In other words, for
Nicaragua, such negotiations had to be restricted to the
modalities or mechanisms for the implementation of the
said Judgment.
Colombia did not define the subject-matter of the
negotiations in the same way. In the words of its Foreign
Minister, it intended to “sign a treaty that establishes the boundaries and a
legal regime that contributes to the security and stability
in the region” (emphasis added).484
This case also offered guidance as to the interpretation of
the position and conduct for the purposes of Article II. For
instance, it was rejected that that the openness to dialogue ‘at
least’ on the date of the filing of the Application could be a ‘a
decisive factor’, preferring instead the existence of a possibility,
however minimal, to negotiate, as direction:
what is essential for the Court to decide is whether, on
that date, given the position and conduct of the Parties in respect
of Colombia’s alleged violations of Nicaragua’s sovereign
rights and maritime zones delimited by the Court in 2012,
the Parties considered485
in good faith a certain possibility of a negotiated
settlement to exist or not to exist?
Moreover, the fact that the situation was ‘calm’ and ‘stable’
during that time did not necessarily constitute, in the Court’s
view, an indicator—specially taking into consideration the
opposition of the parties at key moments:
From the inception of the events following the delivery of
the 2012 Judgment, Nicaragua was firmly opposed to
Colombia’s conduct in the areas that the 2012 Judgment
declared appertain to Nicaragua. Colombia’s position on
the negotiation of a treaty was equally firm during the
entire course of its communications with Nicaragua.486
484Ibid., para 98.

485Ibid., para 99—emphasis added.
486Ibid., para 100.
Court of Justice
Applying its discretion to the material submitted, the Court 181
concluded:
No evidence submitted to the Court indicates that, on the
date of Nicaragua’s filing of the Application, the Parties
had contemplated, or were in a position, to hold negotiations to settle the dispute
concerning the alleged violations by Colombia of
Nicaragua’s rights in the maritime zones which, according
to Nicaragua, the Court 487 declared in its 2012 Judgment
appertain to Nicaragua.
Consequently, the Court found that, on the date of the filing
of Nicaragua’s Application, the condition laid down in Article II
had been fulfilled, and the objection was rejected.
A singularity worth noticing in this case lies in the
concurrence of two factors, the construction of Article II in
terms of admissibility and Colombia’s denunciation of the
Pact.488If Article II is construed in terms of admissibility, nothing
stands in the way of successive applications based on new
circumstances once the first is dismissed on this ground.
However, this option was severely restricted in the case at
hand by the second factor, Colombia’s denunciation. 489Taking
into account this fact, to admit the Colombian objection had
blocked any subsequent action by Nicaragua before the Court.
It is in this context that the Nicaraguan contention that
Colombia was trying to make the best of linguistic skills ‘to elide
the critical differences’ between the object of the dispute and
the object of the negotiation could not only be ignored but also
acquired additional meaning.490Once the Court asserted its
jurisdiction on basis of Article XXXI and Article LVI of the Pact,
it was hardly conceivable to reject it per omnia secula seculorum
attending the Colombian argument on the possibility to reach a
settlement through diplomatic negotiations whose object was in
contradiction with the object of the Nicaraguan Application.
Before concluding this point, it is interesting to note that the
487 Ibid.—emphasis added.

91
48898Indeed, this aspect was also noticed to certain extent by

Colombia itself when it drew the attention to the timing of the
Application: ‘[it] was due not to allegedly futile negotiations,
but to the fact that the Pact of Bogota would soon cease to be
in force between the Parties’ (ibid., para 87).
48999 See Sect. 5 below.
490 'Alleged Violations (Jurisdiction), supra n. 19, para 91.
100
182 A.R. Brotóns
interpretation of Article II also arose in both 2016 Judgments
when the Court tried to determine whether Colombia’s
interpretation of Article LVI was consistent with the object and
purpose of the Pact. Article II became an element of analysis
leading the Court to a negative conclusion.491
4.2 Article IV and Ongoing Procedures
A further ground invoked to contest the admissibility of the

claims brought before the Court has been found in Article IV of
the Pact which provides:
Once any pacific procedure has been initiated, whether by
agreement between the parties or in fulfillment of the
present Treaty or a previous pact, no other procedure
may be commenced until that procedure is concluded.
The interpretation of this provision arose in the case
concerning Armed Actions (Nicaragua v. Honduras)—again narrowly
connected with the Contadora process and Honduras’s strategy
491 ‘The object and purpose of the Pact’—the Court notes—‘is

to further the peaceful settlement of disputes through the
procedures provided for in the Pact. Although Colombia argues
that the reference to “regional.. .procedures” in the first
paragraph of Article II is not confined to the procedures set out
in the Pact, Article II has to be interpreted as a whole. It is
clear from the use of the word “consequently” at the beginning
of the second paragraph of Article II that the obligation to
resort to regional procedures, which the parties “recognize” in
the first paragraph, is to be given effect by employing the
procedures laid down in Chapters two to five of the Pact.
Colombia maintains that its interpretation of the second
paragraph of Article LVI would leave Article II - which contains
one of the core obligations in the Pact - in effect during the
one-year period. The Court observes, however, that Colombia’s
interpretation would deprive both the denouncing State and, to
the extent that they have a controversy with the denouncing
State, all other parties of access to the very procedures
designed to give effect to that obligation to resort to regional
procedures’ (Question of the Delimitation of the Continental Shelf beyond 200 nm
(Jurisdiction), supra n. 19, paras 39-40 and Alleged Violations
(Jurisdiction), supra n. 19, paras 41-42).
seeking to infer from this framework the bases to contest the
admissibility of the claim. According to Honduras, once
Nicaragua had accepted the Contadora process as ‘special
procedure’ in the sense of Article II, then Article IV, and good
faith elementary considerations, prevented it from initiating
other procedures while this process was still alive. For
Nicaragua, the latter could not, however, qualify as ‘special
procedure’ as understood in Article II and Article IV because,
among other reasons, its subject-matter did not concern the
dispute before the Court.492
The Court, avoiding the cumbersome task of defining the
Contadora process, proceeded guided by a pragmatic working
method that can be summarized as follows: first, if the process
was exhausted on the date of the Application’s submission, that
is, on 28 July 1986, then its qualification would no longer be
necessary; second, if this was the case, then it would be
unnecessary to determine the existence of overlaps between
the subject-matter of the process and the subject- matter of
the dispute. In this respect, the Court observed that, for the
purposes of Article IV, formal conclusions before a pacific
procedure can be said to be ‘concluded’, or failures before a
new procedure can be commenced, were not requirements;
according to the Court’s reasoning, it seems that a stalemate
situation and the lack of prospects are the two keys guiding the
analysis:
It is sufficient if, at the date on which a new procedure is
commenced, the initial procedure has come to a standstill
in such circumstances that there appears to493 be no
prospect of its being continued or resumed.
The vexed issue of the object of the process aside, the Court
resumed its assessment of the Contadora process and
concluded that on the date of the filing of the Application the
latter had already become deadlocked. In this connection, the
Court noted that the Contadora-Esquipulas II process could not
be considered a continuation of the Contadora process due to

100, paras 77-78.
493Ibid., p. 100, paras 79-80.
184 A.R. Brotóns
their different raison d’etre. While the former constituted a
mediation in which the Contadora Group and Support Group
had a decisive part, in the latter, the Contadora Group had
played a ‘fundamentally different role’:
The five countries of Central America set up an
independent mechanism of multilateral negotiation, in
which the role of the Contadora Group was confined to
the tasks laid down in
Court of Justice
Sections 7 and 10 (a) of the Esquipulas II Declaration, 185
and has effectively shrunk still further subsequently. 494
In addition, the Court observed that the Contadora Group

considered its mission completed ‘at least so far as the
negotiation of any subsequent accord is concerned’ when the
Act of Contadora was presented to the Central American
States on 6-7 June 1986. In this connection, the Court pointed
out that, while its signature ‘would have crowned’ the
mediation, its absence had the opposite effect.495Finally,
drawing the attention to the interval between the end of the
Contadora process and the beginning of the Contadora-
Esquipulas II process, the Court pinpointed the relevant time
for determining the admissibility as ‘it was during this gap that
Nicaragua filed its Application to the Court.’ 496
Having determined that this process was ‘concluded’ at the
relevant date, i.e. the filing of the Application, the Court found
that Honduras’s contentions could not be upheld; a conclusion
that culminated the Court’s plan avoiding further or deeper
assessments and definitions concerning the process:
it is unnecessary for the Court to determine whether the
Contadora process was a “special procedure” or a “pacific
procedure” for the purpose of Articles II and IV of the
Pact, and whether that procedure had 497 the same object as
that now in progress before the Court.
494Ibid., p. 105, para 91. Section seven referred to

negotiations in security, verification, and arms matters, and
Section 10.a) envisaged the creation of an international
verification and follow-up commission.
495Ibid., pp. 104-105, paras 91-92.
496Ibid., p. 105, para 92.
497Ibid., p. 105, para 93. Notwithstanding this, the Court
pointed out that it: ‘does not mean that the Court is unaware
that, subsequent to that date, efforts to resolve the difficulties
existing in Central America took a new lease of life with the
agreement known as Esquipulas II. Nor should it be thought
that the Court is unaware that the Application raises juridical
questions which are only elements of a larger political
109
Note from
situation. the wider
Those Minister for Foreign
issues Affairsoutside
are however of Colombia
the to
the SecretaryofGeneral
competence of the
the Court, OAS,
which is obliged to confine itself to
27 November 2012.
186 A.R. Brotons
5 The Denunciation of the Pact
In nearly 70 years of existence the Pact of Bogota has been

denounced only by two States Parties: El Salvador in
1973498and, more recently, Colombia in 2012.499As to the
former, the denunciation had a preventive character aimed at
these juridical questions [...] the Contadora Group did not

claim any exclusive role for the process it set in train’ (ibid., p.
106, paras 96-97). For interesting elaborations on this, see
Separate Opinion of Judge Shahabuddeen (ibid., pp. 152-156),
arguing that the Contadora process was not a procedure
within the meaning of Articles II and IV nor was it possible to
subsume the object of the dispute into the object of the claim.
498Note from the Minister for Foreign Affairs of El Salvador to
the Secretary General of the OAS,
49924 November 1973.
avoiding Honduras to invoke Article XXXI as jurisdictional basis
for a unilateral action concerning the territorial, insular, and
maritime dispute opposing the two States, which was finally
submitted to the Court by compromis.500As for the latter, the
denouncing State expressed, for reasons mainly of domestic
policy, its discontent with the Judgment of 19 November 2012.
The denunciation in this case was aimed at preventing future
cases, which actually occurred once Nicaragua: (1) accused
Colombia of violating its sovereign rights and maritime spaces
in the Caribbean Sea,501and (2) it requested the delimitation of
the continental shelf beyond the 200 nautical miles from its
coast.502These Applications brought for the first time the
operation of Article LVI of the Pact to the fore.
5.1 Article LVI and the Rejection of Immediate Effects
The denunciation clause of the Pact is found in Article LVI,

which governs the procedure in the following terms:
The present Treaty shall remain in force indefinitely, but
may be denounced upon one year’s notice, at the end of
which period it shall cease to be in force with respect to
the state denouncing it, but shall continue in force for the
remaining signatories. The denunciation shall be
addressed to the Pan American Union, which shall
transmit it to the other Contracting Parties.
The denunciation shall have no effect with respect to
pending procedures initiated prior to the transmission of
the particular notification.
Colombia had announced the immediate effects (‘as of
today’) of its denunciation of the Pact ‘with regard to
procedures that are initiated after the present notice, in
conformity with the second paragraph of Article LVI’ and,
therefore, objected the jurisdiction of the Court in both cases,
500Special Agreement concluded on 24 May 1986 (jointly

notified to the Court on 11 December 1986), UNTS, Vol. 1437-I,
No. 24358, pp. 160-163.
501 Alleged Violations, Application instituting proceedings, 16
11
September 2013.
502Question of the Delimitation of the Continental Shelf beyond 200 nm, Application instituting
proceedings, 26 November 2013.
188 A.R. Brotons
making an interpretation a contrario of the second paragraph of
Article LVI. If the denunciation did not have effects on the
pending procedures at the time of notification, then it should
not be possible to initiate new ones under the Pact once
notified its denunciation. No other interpretation would keep
the effet utile of Article LVI. According to Colombia, Article LVI,
first paragraph, was applicable to provisions (19 out of 60) out
of the chapters (Two to Five) concerning the procedures of
settlement. Whether the Parties to the Pact had wanted to
provide that denunciation would not affect any procedures
initiated during the 1-year period of notice, they could easily
have said so expressly by adopting a wording similar to
provisions in other treaties. The function and language of
Article XXXI were very similar to those of Article 36, paragraph
2, of the Statute of the Court and the States generally
reserved the right to withdraw their declarations under the
optional clause without notice. Besides, Colombian interpretation
was ‘also consistent with the State practice of the Parties to
the Pact and
the travaux préparatoires.’113
For its part, Nicaragua observed that Article XXXI of the
Pact determined the jurisdiction of the Court ‘so long as the
present Treaty is in force’, and how long the Pact remained in
force was determined by the first paragraph of Article LVI.
Colombian interpretation eviscerated the general rule laid
down in these dispositions depriving them of all meaning, and
no inference should be drawn from the silence of second
paragraph of Article LVI regarding procedures commenced
during the 1-year period of notice of the denunciation; in any
event, such inference could not prevail over the express
language of Articles XXXI and LVI, first paragraph. The object
and purpose of the Pact, its backbone, was the settlement
procedures, resulting untenable to claim that the general rule
applied to the periphery while the substance was subjected to
a particular and very restrictive rule. In addition, several of the
19 articles to which the general rule allegedly applied
according Colombia had entirely served their purpose once the
Pact in force and would fulfill no function during the 1 year
period of notice, while others—such Articles III to VI—were
inextricably linked to the procedures of settlement. Moreover,
it would be strange to interpret that Chapter One (entitled
‘General Obligation to Settle Disputes by Pacific Means’)
maintained its force, but not the Chapters containing the very
means to which Chapter One refers. Finally, neither the
practice of the parties to the Pact or the travaux
préparatoiressupported Colombia’s interpretation. The second
paragraph of Article LVI was most likely a redundancy to the
extent that its effects were already implied in the first
paragraph. Its utility was residual in that it envisaged a
particular scenario where the general rule applies. 114
The Court carried out an exhaustive interpretation of Article
LVI, premised on three main elements of analysis. First, the
date at which its jurisdiction had to be established was the
date on which the application was filed.115Second, the recognition
of compulsory jurisdiction pursuant Article XXXI, ‘so long as
the present Treaty is in force’ between the Parties, and the
first paragraph of Article LVI, prescribing a 1-year period
following the notification of the denunciation, confirmed that
the Pact was still in force between Colombia and Nicaragua on
the date that the Application was filed. The only question
pending was whether the second paragraph of Article LVI
could alter what would otherwise have been the effect of
503504505
the first paragraph.506And third, the Court relied on the
application of the rules of interpretation laid down in Articles
31-33 of the Vienna Convention, as they reflected customary
international law and the Parties agreed in its application, in
particular Article 31 that ‘states the general rule of
interpretation.’507
503 Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), supra n.
19, paras 23-26 and Alleged Violations (Jurisdiction), supra n. 19, paras 25-28.
504 Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid.,
paras 27-30 and Alleged Violations (Jurisdiction), ibid., paras 29-32.
para 31 and Alleged Violations (Jurisdiction), ibid., para 33.
506Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para
32 and Alleged Violations (Jurisdiction), ibid., para 34.
507111 Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para
190 A.R. Brotons
Relying on this threefold bases, the Court started
deconstructing the interpretation proposed by Colombia508and
reached the conclusion that the latter could not be accepted:
Taking Article LVI as a whole, and in light of its context
and the object and purpose of the Pact its subsequent
termination as between Nicaragua and Colombia did not
alter the jurisdiction which existed on the date the
proceedings were instituted. Thus, Colombia’s objection
was rejected.509
5.2 Meaning of the Second Paragraph of Article LVI
It is interesting though to dwell on the analysis of the Court

when it comes to some key elements of the interpretative
process. This is, for instance, the case of the argument a
contrario of Article LVI, the axis around which the defense of
Colombia revolved.510While recalling that an a contrario reading of
a treaty provision was known to this Court and its predecessor,
the Court clarified that:
Such an interpretation is only warranted, however, when
it is appropriate in light of the text of all the provisions
concerned, their context and the object and purpose of
the treaty. Moreover, even where an a contrario
interpretation is justified, it is important to determine
precisely what inference its application requires in a given
case.511
Considering first the text of Articles XXXI and LVI, the Court
observed that Colombia’s argument ‘runs counter to the
language of Article XXXI’ and ‘from the ordinary meaning of
the words used in Article LVI’:
it is not the denunciation per se that is capable of having an
effect upon the jurisdiction of the Court under Article
XXXI of the Pact, but the termination of the treaty (as
between the denouncing State and the other parties)
which results from the denunciation [...] The first
508 Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid,
paras 34-45 and Alleged Violations (Jurisdiction), ibid., paras 36-47.
para 46 and Alleged Violations (Jurisdiction), ibid., para 48.
510Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid, paras 34-
40 and Alleged Violations (Jurisdiction), ibid., paras 36-42.
511 Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para 35
and Alleged Violations (Jurisdiction), ibid., para 37.
Court of Justice
paragraph of Article LVI provides that the treaty may be 191
terminated by denunciation, but
Court
thatoftermination
Justice will occur only after a period of one year192
from the notification of the denunciation. It is, therefore,
this first paragraph which determines the effects of
denunciation. The second paragraph of Article LVI
confirms that procedures instituted before the
transmission of the notification of denunciation can
continue irrespective of the denunciation and thus that
their continuation is ensured irrespective of the provisions
of the first paragraph on the effects of denunciation as a
whole.
Thus, the second paragraph of Article LVI was open to an
interpretation compatible with the language of Article XXXI. 512
Then, turning the discussion to the context of the provision,
the Court underlined the ‘central role’ played by Chapters Two
to Five within the overall structure of obligations in the Pact.
These chapters dealt with the different procedures for the
peaceful settlement of disputes and, after considering them,
the Court noted the disruptive outcome resulting from
Colombia’s interpretation observing that:
would be that, during the year following notification of
denunciation most of the Articles of the Pact, containing
its most important provisions, would not apply between
the denouncing State and the other parties. Such a result
is difficult to reconcile with the express terms of the first
paragraph of Article LVI.513
Finally, the Court examined whether Colombia’s
interpretation was consistent with the object and purpose of
the Pact. To that end the Court looked at the full title of the
Pact (American Treaty on Pacific Settlement), its adoption in
fulfillment of Article XXIII of the Charter of the OAS, now
Article XXVII; the title of Chapter One of the Pact (General
Obligation to Settle Disputes by Pacific Means); the text of
Articles I and II included in this Chapter514; and a quote of its
1988 Judgment in the Armed Actions (Nicaragua v. Honduras) case
where it was held that the purpose of the American States in
drafting the Pact was to reinforce their mutual commitments
512Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., paras 36-
125
Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), supra n.
19,
paras 39-40 and Alleged Violations (Jurisdiction), supra n. 19, paras 41-
42.
Courtregard
with of Justice
to judicial settlement. The Court concluded that193
Colombia’s interpretation ‘would not be consistent with the
object and purpose of the Pact.’515
A further element worth of some consideration is the
argument based on the effet utile proposed by Colombia to
allegedly ensure the effectiveness of the second paragraph of
Article LVI. The Court recognized that, in general, the
interpretation of a treaty should seek to give effect to every
term in that treaty, and that no provision should be interpreted
in a way that renders it devoid of purport or effect. There are
occasions, however, when the parties to a treaty adopt a
provision to avoid doubts even if the said provision is not
strictly necessary, ex abundantia cautela. The Court cited as example
Articles LVIII and LIX of the Pact, the latter unnecessary if
Colombia’s approach to Article LVI were to be followed. In
addition, the Court had already inferred from the second
paragraph an interpretation compatible with both the first
paragraph and Article XXXI. The argument of Colombia turned
upside down, the Court noted that if it were to be accepted,
the first paragraph of Article LVI would be deprived of its
purport or effect, for its application would be reduced to only a
handful of provisions.516
At this point, with the most problematic points of contention
resolved, it was relatively obvious for the Court to pierce the
veil of those remaining. This was, for instance, the case of
Colombia’s argument based on the absence of express lan-
guage, which the Court limited to reverse observing that, had
the parties to the Pact wished to provide that proceedings
instituted at any time before the expiry of the 1-year period
would be unaffected, they could easily have made express
provision to that effect; yet the second paragraph opted for
silence. Similarly, the comparison with other treaties was not
persuasive, as neither was the comparison attempted with the
515124See Sect. 4.1 above.
516 Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., paras 41-
l30
Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid.,
para
194 A.R. Brotons
declarations under Article 36, paragraph 2, of the Statute of
the Court. Article XXXI of the Pact embodied a treaty-based
commitment, not dependent on unilateral declarations for its
implementation and, as discussed elsewhere, the conditions
under which a State party could withdraw its commitment
were found in the relevant provisions of the Pact itself.517
With respect of the absence of reactions to both
notifications (EI Salvador and Colombia) of denunciation, the
Court observed that the terms of the Salvadorian notification
could not be equated to those of the denunciation by
Colombia. In any event, the Court was unable to read into the
absence of objections on the part of the other parties to the
Pact to that notification an agreement regarding Colombia’s
interpretation of Article LVI. Nor did the Court consider that
the absence of comments by Nicaragua could amount to
acquiescence. This conclusion was only further reinforced by
the fact that Nicaragua instituted the proceedings against
Colombia within 1 year of the transmission of Colombia’s
notification.518
By last, reliance on the travaux préparatoireswas so fruitless with
respect to Article LVI as with every other provision of the Pact.
In the Question of the Delimitation of the Continental Shelf beyond 200 nm case,
Judge ad hoc Brower referred to ‘the astronomical “black hole”
of the virtually complete absence of useful guidance from any
travaux preéparatoires’ in respect of the second paragraph of Article
LVI as the reason why the Court preferred to interpret it as
having the, albeit superfluous, effet utile of an abundance of
caution rather than more difficult a contrarioinferences argued by
Colombia.519Be that as it may be, the Court observed in both
Judgments that, while the first paragraph of Article LVI of the
Pact was inspired by Article 9 of the 1929 General Treaty of
Inter-American Arbitration and Article 16 of the 1929 General
Convention of Inter-American Conciliation, ‘the travaux
517121 Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para
519and Alleged Violations (Jurisdiction), ibid., para 46.
129
(Jurisdiction),
Question of the Delimitation of the Continental Shelf beyond 200 nm ibid,
Declaration of Judge ad hoc Brower, paras 1-1.
Court of Justice
préparatoires 195
give no indication as to the precise purpose behind
the addition of what became the second paragraph of Article
LVI.’
The Court further noted that:
if Colombia’s view as to the significance of the second
paragraph were correct, then the insertion of the new
paragraph would have operated to restrict the effect of
the provision which [...] the parties were contemplating
carrying over from the 1929 treaties. Yet there is no
indication anywhere in the travaux préparatoiresthat anyone
considered that incorporating this new paragraph would
bring about such an important change. 130
6 The Interpretation and Application of the Pact in Review
If one were to picture the commitment of Latin American

States to the judicial settlement of disputes, the Court would in
all likelihood be a still and neat reflection—Nicaragua
appearing as a pioneer, but also among those most convinced
States of the valuable association created by the Pact and the
Court in the settlement of disputes between its parties.
In the past three decades, Article XXXI has been the most
frequent basis of jurisdiction, contested only on four occasions.
The grounds invoked have been two, namely the alleged
existence of previous treaties covering the subject-matter of
the dispute under Article VI, and purported immediate effects
of the denunciation under Article LVI. While the Court upheld
partially the lack of jurisdiction based on Article VI only once,
the other objections founded on the existence of diplomatic
negotiations under Article II, and ongoing procedures under
Article IV, have been rejected. The application of the general rule
of interpretation, and the sensitivity on the reinforcement of
mutual commitments with judicial settlements as the object
and purpose of the Pact, have contributed to this balance
sheet.
The jurisdictional regime under Article XXXI of the Pact has
been characterized in a twofold manner. On the one hand,
Article XXXI has been confirmed as an autonomous
l30
Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid.,
para
196 A.R. Brotons
commitment with respect of the declarations under Article 36,
paragraph 2, of the Statute. In this respect, the Court has
determined that these constitute two separate bases that are
not mutually exclusive. However, despite the support given to
the alternative character of declarations, some difficulties
persist. This has been most clearly illustrated by their exclusion
where Article XXXI applies, an aspect still open to discussion.
On the other hand, Article XXXI has been depicted as a direct
legal way to seize the Court. Unlike Article XXXII, contingent
on the recourse to a prior conciliation procedure, no
requirement interferes or qualifies the commitment and
conferral that Article XXXI encapsulates.
129
(Jurisdiction),
Question of the Delimitation of the Continental Shelf beyond 200 nm ibid,
Declaration of Judge ad hoc Brower, paras 1-1.
197 A.R. Brotons
The jurisdiction has been contested primarily on the basis of
Article VI of the Pact, which enshrines the protection of the
pacta sunt servanda and res judicata. The identification of the subject-
matter and the date of the filing of the applications have
turned into key elements of the litmus test to assess the
relevance of previous arrangements. However, the effects that
result from the admission of Article VI has posed some
concerns. The unique legal chain formed by Article VI and
Article XXXIV has shown their potential to stretch the Pact and
the Court’s Statute, especially where lines between jurisdiction
and merits are difficult to disentangle; a comprehensive
diagnosis of the exclusive preliminary character of the
objection in conformity with Article 79(9) of the Court’s Rules
proves essential to balance the right to have the objection
answered and the preservation of the merits of the cases.
Valuable light has been also shed on the proper
interpretation of the causes of inadmissibility invoking
diplomatic settlements under Article II or ongoing procedures
under Article IV. As for the former, the Court has confirmed
that this provision establishes a condition and clarified that
guidance to its proper interpretation is fundamentally found in
the opinion of the parties by looking not so much at what they
say but at what they do. There is, however, an aspect not
entirely settled that concerns the different versions of the
texts, and the Court’s reliance on the stricter interpretation
should not be taken as final. As for the latter, the existence of
a stalemate in the negotiations and realistic prospects to reach
a negotiated solution have constituted two fundamental
aspects for determining the conclusion of ongoing procedures
within the meaning of Article IV.
Finally, when confronted with the denunciation of the Pact
under Article LVI, relying on a combined reading of Article
XXXI and Article LVI, paragraph 1, the Court has confirmed the
continued existence and opposability of the obligations set
forth in the Pact. While the first paragraph determines the
198 A.R. Brotóns
effects of denunciation, the second, in envisaging more
specific scenarios, constitutes a corroboration of this continuity
from which no immediate or retroactive effects can be, directly
or indirectly, inferred.
A final word is however to insist that, while the denunciation
is an option recognized in the instrument, to denounce the
Pact only denotes a regressive and poor misconception of
sovereignty and settlement of disputes. It might be tempting
for some to think of the denunciation as a distinguished
gesture granting the state a symbolic key to the room of those
powerful states only well-disposed towards tailor-made justice
mechanisms where judges are expected to cater for particular
interests. Arguably succumbing to this temptation may reveal a
rather reactionary vision rooted in an old-fashioned idea of
sovereignty. As the Pact and the Court have proved to be an
effective and instrumental alliance, it would be highly
regrettable that the endeavor and long-standing commitments
on which they rest can be put under the spotlight for the
wrong reasons.
Further Reading
Abello Galvis R (2005) Analyse de la competence de la Cour
internationale de Justice selon le Pacte de Bogota.
International Law: revista colombiana de derecho internacional
2005(6):403- 441.
http://revistas.javeriana.edu.co/index.php/internationallaw/arti
cle/view/14045Bederman DJ (1989) International Court of
Justice — jurisdiction and admissibility — Pact of Bogota. AJIL
83(2):353-357
Bekker PHF (1998) Commentaries on world court decisions
(1987—1996). Kluwer Law International, The Hague, pp 63-
68
Buffet-Tchakaloff M-L (1989) La Competence de la Cour
internationale de Justice dans l’Affaire des ‘Actions frontalières
et transfrontalières Nicaragua—Honduras’. RGDIP 93(3):623-
654 Caicedo Demoulin JJ (2003) ¿Debe Colombia presentar
excepciones preliminares en el asunto sobre el diferendo
territorial y marítimo (Nicaragua c. Colombia)? International
Law: Revista colombiana de derecho internacional
2003(1):157-282.
http://revistas.javeriana.edu.co/index.php/internationallaw/arti
cle/view/14170
Calatayud Orihuela E (1990) El Pacto de Bogota y la Corte
International de Justicia. Rev Esp Der Int 42(2):415-441
Casado Raigón R (1990) La sentencia de la CIJ de 20 de
diciembre de 1988 (competencias y admisibilidad de la
demanda) en el asunto relativo acciones armadas fronterizas y
transfronterizas (Nicaragua c. Honduras). Rev Esp Der Int
41(2):399-421 De la Fayette LA. Territorial and Maritime
Dispute Case (Nicaragua v Colombia). MPEPIL, vol IX. pp 844—
850.
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690
/law-9780199231690-e217?
rskey=PMt2H7&result=1&prd=EPILDecaux E (1988) L’arret de
la C.I.J. dans l’affaire des actions armées frontalieres et
transfrontalieres (Nicaragua c. Honduras), competence et
recevabilite, 20 decembre 1988. AFDI 34:147-164
Diemer C, Separovic A (2006) Territorial questions and
maritime delimitation with regard to Nicaragua’s claims to the
San Andres Archipelago. ZaoRV 66(1):167-185 Gomez-Robledo
A (1997) El ‘Pacto de Bogota’ sobre solucion de controversias,
a la luz del caso relativo a las acciones armadas, fronterizas y
transfronterizas, entre Nicaragua y Honduras (C.I. J.) In: El
papel del derecho internacional en America: la soberanía
nacional en la era de la integration regional. Universidad
Nacional Autónoma de Mexico, Mexico, pp 179-204 Gomez-
Robledo A (1995) Le traite americain de reglement pacifique et
la Cour internationale de Justice. AFDI 41:365-381
Herdocia Sacasa M (2009) El resurgimiento del Pacto de
Bogotaí. Agenda Internacional XVI (27):45-68.
http://revistas.pucp.edu.pe/index.php/agendainternacional/arti
cle/view/3659/3639Jimeínez de Areíchaga E (1989) The
compulsory jurisdiction of the International Court of Justice
200 A.R. Brotóns
under the Pact of Bogota and the optional clause. In: Dinstein
Y (ed) International law at a time of perplexity: essays in
honour of Shabtai Rosenne. Nijhoff, Dordrecht, pp 355-360
Kwiatkowska B (2008) The 2007 Nicaragua v. Colombia
territorial and maritime dispute (preliminary objections)
judgment: a landmark in the sound administration of
international justice. In: International law between
universalism and fragmentation: Festschrift in honour of
Gerhard Hafner. Martinus Nijhoff, Leiden, pp 909-942
Nieto Navia R (2009) La decision de la Corte Internacional de
Justicia sobre excepciones preliminares en el caso de
Nicaragua v. Colombia. Anuario colombiano de derecho
internacional 2:11-57.
https://revistas.urosario.edu.co/index.php/acdi/article/view/10
99Pastor Ridruejo JA (2010) Sentencia de la Corte
Internacional de Justicia de 13 de diciembre de 2007
(excepciones preliminares) en el asunto de la controversia
territorial y marítima (Nicaragua c. Colombia). In: Sanchez
Rodríguez LI, Quel FJ, Lopez Martín AG (eds) El poder de los
jueces y el estado actual del Derecho Internacional. Análisis
crítico de la jurisprudencia internacional (2000-2007).
Universidad del País Vasco, pp 639-648 Quintana JJ (1992)
The Latin American contribution to international adjudication:
the case of the International Court of Justice. NILR 39(1):127-
154
Schuster G (1992) Border and Transborder Armed Actions
Case (Nicaragua v. Honduras). MPEPIL, vol I. pp 438-440
Sepulveda Amor B, Villarino Villa C (2011) La practica
latinoamericana ante la Corte Internacional de Justicia.
Cursos de Derecho Internacional y Relaciones
Internacionales de Vitoria-Gasteiz 1:29-89
Stern B (1998) 20 ans de jurisprudence de la Cour
Internationale de Justice: 1975-1995. Kluwer Law
International, The Hague. pp 463 -484
Tomka P. The role of the International Court of Justice in
world affairs: successes and challenges with special
reference to OAS Member States and the Pact of Bogota.
OAS 54th Lecture of the Americas, April 2014.
http://www.icj-cij.org/files/press-releases/4/18324.pdf
Trooboff PD (1989) Border and transborder armed actions
(Nicaragua v. Honduras), jurisdiction and admissibility, 1988
ICJ Rep. 69, 28 ILM 335 (1989). AJIL 83(2):353-357
Valencia Ospina E (2000) The role of the International Court of
Justice in the Pact of Bogota. In: Liber amicorum “In
memoriam” of Judge Jose María Ruda. Kluwer Law
International, The Hague, pp 291-329
Valencia Ospina E, Bogota Pact (1948) MPEPIL, vol I. pp 972-
979
Von Walter A (1992) Border and Transborder Armed Actions
Case (Nicaragua v. Honduras; Nicaragua v. Costa Rica).
MPEPIL, vol I. 998-1001
Antonio Remiro Brotons is Emeritus Professor of Public International

Court
law andof International
Justice 201
Relations of the Universidad Autonomade Madrid.
Member of the Institut de droit international.
Nicaragua’s Impacts on Optional Clause
Practice
Brian McGarry
Abstract Nicaragua’spractice under the Optional Clause of the

ICJ Statute has coincided with rising numbers of declarations
in force and applications instituting proceedings on that basis.
The combined creativity of Nicaragua and the Court has
propelled those trends by refining the international legal
community’s understanding of this conceptually challenging
provision of the Statute. In particular, Nicaragua v. United States has
influenced the complexity of reservations and conditions in
States’ declarations, as well as parties’ argumentative tactics in
subsequent disputes. The present chapter reviews the Court’s
treatment in that case of the history and features of Article
36(2) of its Statute, assesses the theoretical, jurisprudential,
and diplomatic consequences of those decisions, and investi-
gates questions which Nicaragua has posed but not resolved
during three decades of Optional Clause practice. The author
concludes that the Nicaraguan cases have invigorated this
jurisdictional mechanism—and thus the maintenance of
international peace and security—beyond what might
reasonably be expected from a more rigid system of
compulsory dispute settlement.
Contents
1 Introduction................................................................................................................................. 180
2 History and Features of the Optional Clause.............................................................................. 181
3 Treatment of the Optional Clause in Nicaragua v. United States............................................... 182
3.1 The Principle of Good Faith................................................................................................. 182
3.2 Reciprocity............................................................................................................................ 185
3.3 The Character of Specific Reservations............................................................................... 186
3.4 Formal Deposit..................................................................................................................... 189
4 A Systemic Appraisal of the Nicaraguan Cases......................................................................... 191
4.1 The Optional Clause in Theory ........................................................................................... 191
4.2 Legacy in Subsequent Decisions.......................................................................................... 198
4.3 Influence on State Practice................................................................................................... 202
2
0
2
Nicaragua’s Impacts on Optional Clause Practice 203
B. McGarry (*)
The Graduate Institute of International and
Development Studies, Geneva, Switzerland e-mail:
brian.mcgarry@graduateinstitute.ch
International Court of Justice, DOI 10.1007/978-3-319-62962-
9_8
5.........................................................................................................................................................Unreso
lved and Emerging Questions............................................................................................................ 204
6 Nicaragua and the ‘Dream’ of Compulsory Jurisdiction........................................................... 207
References......................................................................................................................................... 209
1 Introduction
While the Agent of Nicaragua since Nicaragua v. United States,

Ambassador Carlos Jose Arguello Gomez, has recently
suggested that this case succeeded in ‘mobilizing the
people’520of the United States against its government’s actions
in Central America, the legal pronouncements in the case have
more visibly influenced other States’ policies and litigation
before the Court. This is particularly true of the Court’s
Judgment on Jurisdiction,521to which it has referred in cases
spanning a far wider range of subject matter than the military
and paramilitary activities underlying that case. Given the
foundational role of Article 36(2) of the Court’s Statute
(‘Optional Clause’) in establishing its jurisdiction, the Court’s
analysis of that provision in this dispute and the subsequent
Nicaraguan cases has arguably impacted the practice of
international law at a systemic level. By encouraging
innovation in the drafting of declarations and submissions to
the Court, these cases have served the maintenance of peace
520Remarks delivered at ‘One View of the Arena: The Agent’s
Perspective in International Dispute Settlement’, American
Society of International Law, 110th Annual Meeting, 31 March
2016. Cf. remarks delivered by Burlington, Vermont mayor (later
U.S. Senator) Bernie Sanders during Liberation Day events in
Managua, 19 July 1985 (distilling the essence of the pending
case into a rhetorical query): ‘The real issue is a very simple
one. Does the government of the United States of America
have the unilateral right to destroy the government of
Nicaragua because the president of the United States and
some members of Congress disagree with the Sandinistas?’
(Remsen 2015).
United States (Jurisdiction)’).
204 B. McGarry
and security while fostering trends toward greater participation

in compulsory international dispute settlement.
After recounting a brief history of the Optional Clause and
its principal features in Sect. 2, the present chapter considers
in Sect.3 the Court’s treatment of reservations and conditions
to Optional Clause declarations in Nicaragua v. United States. Sec.
4assesses the conceptual, jurisprudential, and practical impacts
of the Nicaraguan cases, before Sect. 5 turns to questions
which these cases have raised but not resolved. Sect. 6
concludes that the widest measure of the impacts of the
Nicaraguan cases is the invigoration of the Optional Clause
system through increased (though increasingly complex) State
practice.
2 History and Features of the Optional Clause
Statute of the International Court of Justice.

Chapter Two: Competence of the Court.522
“Article 36.
[...]
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 [...]”
Whereas Article 36(1) establishes the Court’s jurisdiction
over disputes initiated through ad hoc compromis or treaty
compromissory clause, the Optional Clause—a title which first
appeared in the draft statute introduced at the first Assembly
of the League of Nations,523and which remained atop the
Special Protocol to the PCIJ Statute’s Protocol of Signature 524—
introduces the premise of compulsory jurisdiction through the
mutuality of unilateral State declarations.525The parties’
respective declarations confer jurisdiction on the Court only to
522On links between ‘competence’ and ‘jurisdiction’, see
Koroma (2003).
523See Lloyd (1985), pp. 28-29.
524See Rosenne (2006), pp. 726-727, n. 62.
525See, e.g., Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France),
Judgment, ICJReports 2008, p. 203, para 60.
the extent to which they both encompass the parameters of a
given dispute.526Thus, States which have filed Optional Clause
declarations are parties to a ‘system within a system’ 527: a
network of compulsory jurisdiction instruments opposable
between declarant States, operating within the wider
framework of the Court’s non-compulsory jurisdiction over
disputes among all UN Member States.
Subsections (a)-(d) of the Optional Clause provide
illustration, rather than a rigid categorization of acceptable
forms of declaration, and have not played a role in
practice.528States are empowered to customize their
declarations with reservations.529As surveyed by Professor
Thirlway, former Principal Legal Secretary to the Court, such
reservations have exceeded the classifications of subsections
(a)- (d) since the days of the ICJ’s predecessor institution, the
Permanent Court of International Justice.530Moreover, whereas
the PCIJ Statute referred to the
5261 Certain Norwegian Loans (France v. Norway), Judgment, ICJ Reports 1957, pp. 23-24 (hereinafter
‘Norwegian Loans (Judgment)’).
527See Mackenzie et al. (2010), p. 15.
528See Torres Bernardez (1992), pp. 291 and 299.
529See Szafarz (1993), pp. 55-58.
530nSee Thirlway (2015), pp. 1706-1707.
206 B. McGarry
jurisdiction of that body ‘in all or any of the classes of legal

disputes concerning’ subsections (a)-(d) of the Optional
Clause, the ICJ Statute instead refers this ‘in all legal disputes
concerning’ those categories. This change, which reflects the
concerns of the Informal Inter-Allied Committee and which
was proposed by the Washington Committee of Jurists, was
ultimately adopted by Subcommittee IV/1/ D at the 1945 San
Francisco Conference. The Subcommittee found the revision
favourable to the new Court’s jurisdiction, ‘since it eliminates
the distinction which the present text seems to make’ among
various categories of declarations.531
3 Treatment of the Optional Clause in Nicaragua v. United

States
3.1 The Principle of Good Faith
On 14 August 1946, the United States issued a declaration

founded upon the Optional Clause, which included the
following three reservations and one condition:
(a) disputes the solution of which the parties shall entrust
to other tribunals by virtue of agreements already in
existence or which may be concluded in the future; or.
(b) disputes with regard to matters which are
essentially within the domestic jurisdiction of the United
States of America as determined by the United States of
America; or.
(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;
and.
Provided further, that this declaration shall remain in
force for a period of five years and thereafter until the
expiration of six months after notice may be given to
terminate this declaration.532
531See Rosenne (2006), pp. 707-708.
532International Court of Justice: United States Recognition of
Compulsory Jurisdiction (Declaration by the President of the
United States signed August 14, 1946), 61 Stat. 1218, Treaties
and Other International Acts Series 1598,
www.loc.gov/law/help/us-treaties/bevans/m-ust000004-
0140.pdf(‘1946 Declaration’), pp. 140-141.
On 6 April 1984, the United States deposited with the UN
Secretary-General a notification signed by Secretary of State
George Shultz, referring to the 1946 Declaration, 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 to them may agree.
Notwithstanding the terms of the aforesaid declaration,
this proviso shall take effect immediately and shall remain
in force for two years, so as to foster the continuing
regional dispute settlement process which seeks a
negotiated solution to the interrelated political, economic
and security problems of Central America.533
533Letter from Secretary of State George Shultz to the UN

Secretary-General, ILM, vol. 23 (1984), p. 670 (hereinafter
‘Shultz Letter’).
Only 3 days later, Nicaragua submitted to the Court its
application instituting Nicaragua v. United States. A preliminary issue
for the Court was whether to give effect to the Shultz Letter as
argued by the United States,15or else disregard it for the
reasons cited by Nicaragua.16The Court observed in its
Judgment on Jurisdiction that there was no relevant legal
distinction between classifying the Shultz Letter as a
termination or a modification.17While not rejecting the United
States’ view of a default right to modify unilateral
declarations,18the Court concluded that ‘the unilateral nature of
declarations does not signify that the State making the
declaration is free to amend the scope and the contents of its
solemn commitments as it pleases.’19In applying the principle of
good faith in the context of unilateral declarations, it
citedNuclear Tests for the premise that States such as Nicaragua
‘are entitled to require that the obligation thus created be
respected.’20According to the Court, the 6-month notice period
could be invoked against the United States because this
undertaking constituted an integral part of the 1946
21
Nicaragua v. (Jurisdiction),
United States supra n. 2, p. 419; see further
Shaw (2008), p. 1085.
Declaration.21534535
It is useful to note at this juncture that the Court (referring
the United States to its own failed argument in Interhandel) held
that States cannot depart from the terms of their own
declarations on the basis of the more permissive declaration of
an opposing State—in this case, the unconditional declaration
Nicaragua had formulated in 1929 (‘1929 Declaration’)—and
that reciprocity is in any event concerned with reservations,
53415While the notion of immediate effect appeared to conflict

with the express condition of 6 months’ notice in the 1946
Declaration, the United States argued in the alternative: an
inherent right to modify declarations with such effect; that a
change of circumstances since the advent of the Optional
Clause had established this right on an equitable basis; and
that the Shultz Letter was effective as a temporary suspension
of the 1946 Declaration (see Counter-Memorial of the United
States of America (Questions of Jurisdiction and Admissibility),
17 August 1984, paras 323, 331-334, 337, 351-383, 391-396
and 398-401 (hereinafter ‘Counter-Memorial of the United
States (Jurisdiction)’) (citing the Separate Opinion of Judge
Dillard appended to Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), Judgment, ICJ Reports 1972, p. 102 (hereinafter ‘ICAO Council
(Judgment)’). Despite some analogy to the logic of treaties
when characterizing the effect of the Shultz Letter, the United
States contended in the alternative: that rules of treaty
denunciation were irrelevant in this case; that treaty law gave
effect to the Shultz Letter; and that its new preference for a
‘negotiated solution’ (in the words of the Shultz Letter) did not
violate any principle of good faith that may attach to Optional
Clause declarations because it reflected Article 33(1) of the UN
Charter (see the above-cited Counter-Memorial of the United
States, paras 338-350, 384-390, 397 and 409-410, n. 3 (citing
Sir Waldock H, Special Rapporteur, Second report on the law
of treaties, UN Doc. A/CN.4/156 and Add.1-3, YbILC 1963, Vol. II,
33
p.Nicaragua
68, para v. United
18 States (Jurisdiction),
(hereinafter ibid., p. 419, para 62. See also
‘Waldock, Second report’))).
Rosenne (2006),
pp. 784-785; Torber (2015), p. 193.
210 B. McGarry
rather than conditions.536Were reciprocity applicable in this
context, however, the Court considered in dicta that the
principle of good faith would nevertheless bar the immediate
termination of declarations lacking notice provisions:
[T]he right of immediate termination of declarations with
indefinite duration is far from established. It appears
from the requirements of good faith that they should be
treated, by analogy, according to the law of treaties,
which requires a reasonable time for withdrawal from or
termination of treaties that contain no provision regarding
the duration of their validity. [...] [F]rom 6537to 9 April
would not amount to a “reasonable time”.
16
Nicaragua refuted the United States’ assertion that State
practice supported an unlimited right of modification of
Optional Clause declarations, countering: that nearly all of the
States cited by the United States had invoked specific grounds
for their actions; that the United States’ recourse to rebus sic
stantibus established only that principles of treaty law are
germane to Optional Clause declarations; and that the 1946
Declaration’s inclusion of an express right of termination
implied that the United States’ object and purpose had not
included reserving an additional power to modify its
declaration (see Memorial of Nicaragua (Questions of
Jurisdiction and Admissibility),
535 June 1984, paras 104-138 and 142-144 (hereinafter
‘Memorial of Nicaragua (Jurisdiction)’); Oral Arguments, vol. III
(Nicaragua), pp. 274ff (Reichler) (citing Articles 31 and 32 of
the Vienna Convention) and Memorial of Nicaragua (Merits),
30 April 1985, paras 391, 393 and 408. See further Torber
(2015), pp. 137-139.
17
Nicaragua v. United States (Jurisdiction), supra n. 2, pp. 417-418, para
58.
18
Ibid., pp. 415-417, paras 52-58.
19
Ibid., p. 418, para 59.
20
Ibid., p. 418, para 60 (citing Nuclear Tests (Australia v. France), Judgment, ICJ
Reports 1974, pp. 253 and 268 (hereinafter ‘Nuclear Tests (Judgment)’)).
536Nicaragua v. United States (Jurisdiction), ibid., para 62 (citing Interhandel (Switzerland v. United
States of America), Preliminary Objections, Judgment, ICJ Reports 1959, p. 23 (hereinafter
‘Interhandel (Judgment)’)).
537Nicaragua v. United States (Jurisdiction), ibid., pp. 419-420, para 63.
This ‘reasonable time’ standard referenced by the Court is
far more fluid than the 12-month notice requirement directly
applicable to treaties under Article 56(2) of the Vienna
Convention.538The Court’s interpretation of the principle of
good faith as requiring that the United States provide
reasonable notice recalls its prior analogy to treaty law in
Nuclear Tests :
539
One of the basic principles governing the creation and

performance of legal obligations, whatever their source,
is the principal of good faith [...] [j]ust as the very rule of
pacta sunt servanda in the law of treaties is based on good faith,
so also is the binding character of an international
obligation assumed by unilateral declaration.540
Therefore, in concluding that the principle of good faith
prevented the Shultz Letter from effectively modifying the
United States’ 1946 Declaration prior to Nicaragua’s initiation
of the case, the Court drew inspiration from the law of treaties
without declaring them directly applicable to Optional Clause
declarations.541In a well-cited portion of its 1984 Judgment,
the Court framed this principle within the complex character of
the Optional Clause system:
538On the principle of ‘reasonable time’ in the years prior to

the Vienna Convention’s adoption, see the Commentary to
Draft Article 53 on the Law of Treaties, YbILC 1966, Vol. II, p. 251.
See further McNair (1961), p. 513.
539See Fitzmaurice (1999), pp. 135-137.
540Nuclear Tests (Judgment), supra n. 20, p. 268, para 46.
541Territory (Portugal v. India), Preliminary Objections, Judgment, ICJ Reports 1957, p. 146
(hereinafter ‘Right of Passage (Jurisdiction)’) and Nicaragua v. United States (Jurisdiction), supra n. 2,
p. 418); Oral Arguments, vol. II (Honduras), p. 21 ff (Bowett) and (Nicaragua), p. 124 ff (Pellet). See
further Torber 2015, p. 299. The Court would revisit this aspect of Border and Transborder Armed
Actions in Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,
Judgment, ICJ Reports 2007, pp. 872-873, paras 132-134, and Question of the Delimitation of the
Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan
Nicaragua v. United States (Jurisdiction), ibid., p. 419, para 62. See also
Coast
33 (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016, para 43 (citing
Border and Transborder Armed Actions (Judgment), p. 84).
Rosenne (2006),
pp. 784-785; Torber (2015), p. 193.
212 B. McGarry
[T]he declarations, even though they are unilateral acts,
establish a series of bilateral engagements with other
States accepting the same obligation of compulsory
jurisdiction, in which the conditions, reservations and
time-limit clauses are taken into consideration. In the
establishment of this network of engagements, which
constitutes the Optional-Clause system, the principle of
good faith plays an important role.542
3.2 Reciprocity
The United States argued that even if the Shultz Letter had not
effectively modified its 1946 Declaration, reciprocity required
that it be permitted the same right of immediate termination
as Nicaragua in disputes arising between the two States.
Nicaragua’s 1929 Declaration, which the United States
considered revocable at any time,543stated in full:
On behalf of the Republic of Nicaragua I recognize as
compulsory unconditionally the jurisdiction of the
Permanent Court of International Justice.544
Nicaragua responded that the principle of reciprocity does
not apply to time limits.545The Court agreed that reciprocity
concerns the scope and substance of commitments, rather
than the formal conditions of their establishment.546As such,
while reciprocity governs Connally and Vandenberg
Reservations, it does not concern conditions such as the 6-
month notice period in the United States’ 1946 Declaration,
nor the absence of notice periods in Nicaragua’s 1929
Declaration.547The Court found that even if reciprocity were to
govern conditions, the principle

54329Counter-Memorial of the United States (Jurisdiction), supra
n. 15, paras 402-420.
54430Declaration of Nicaragua (24 September 1929), www.icj-
cij.org/jurisdiction/?p1=5&p2=1&
545p3 =3&code=NI.
54631 Memorial of Nicaragua (Jurisdiction), supra n. 16, para 140.
54732Nicaragua v. United States (Jurisdiction), supra n. 2, p. 419, para
62. On the Optional Clause reference to ‘accepting the same
obligation’, see further Kebbon (1989), p. 259.
only confers on the United States the benefits of an
adversary’s more restrictive declaration, rather than
Nicaragua’s wholly unrestrictive 1929 Declaration.34
In its most critical dismissal of the United States’ position,
the Court claimed the principle of reciprocity as its own, rather
than as a gauge available to States prior to the institution of a
case:
[A] determination of the existence of the ‘same
obligation’ requires the presence of two parties to a case,
and a defined issue between them, which conditions can
only be satisfied when proceedings have been
instituted.548549550551552553554555
This finding builds upon the Court’s holding in Right of
Passage3which rejected the contention that reciprocity applies
from the point when two States have each deposited
declarations accepting the same mutual obligation. 37Clarifying
that reciprocity is not an equitable principle available to States
when crafting declarations,38the Court in Nicaragua v. United States
observed that it was inappropriate ‘to try to determine whether
a State against which proceedings had not yet been instituted
could rely on a provision in another State’s declaration to
terminate or modify its obligations before the Court was
548Nicaragua v. United States (Jurisdiction), ibid., p. 419, para 62 (citing

Interhandel (Judgment), supra n. 22, p. 23).
549Nicaragua v. United States (Jurisdiction), ibid., p. 420, para 64.
550Right of Passage (Jurisdiction), supra n. 27 p. 125; Oral Arguments,
vol. IV (India), p. 37 ff (Waldock). See also Torber (2015), p.
187.
551See further Tomuschat (2012), p. 85.
552The United States argued that this was ‘intrinsically
inequitable and contrary to the Statute’s tenets of reciprocal
and equal treatment’ (Counter-Memorial of the United States
(Jurisdiction), supra n. 15, para 405).
553Nicaragua v. United States (Jurisdiction), supra n. 2, pp. 420-421,
para 64.
554Nottebohm (Liechtenstein v. Guatemala), Preliminary Objections, Judgment, ICJ Reports 1953, pp.
119-120 and 124.
555See Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, Order of 8 March 2011, ICJ Reports 2011, p. 18, paras 50-52;ibid., Oral
Arguments, vol. II (Nicaragua), p. 10 ff (Arguello Gomez); Certain Activities Carried Out by Nicaragua
in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan
River
33
v. United
(Nicaragua
Nicaragua v. Costa (Jurisdiction),
Rica),
States ibid., p.
Judgment of 16 December 419,
2015, para para
54. See 62.
furtherSee also of
Reservation
Nicaragua, 24 October 2001 (available at www.icj-cij.org/jurisdiction/?pi =5&p2= 1&p3=3&code=NI).
Rosenne (2006),
pp. 784-785; Torber (2015), p. 193.
214 B. McGarry
seized.’39While Nottebohm ensured that a Respondent may not
limit the Court’s jurisdiction by modifying its declaration after a
case has commenced,40Nicaragua v. United States thus affirms that
nor may that State—on the alleged basis of reciprocity—
contra- vene the principle of good faith by modifying its
declaration prior to the commencement of the case.
3.3 The Character of Specific Reservations
While subsequent Nicaraguan cases have raised other issues

regarding the scope and application of reservations, 41Nicaragua v.
United States was largely concerned
with a single reservation. The first clause in the United States’
1946 Declaration was inapplicable (regarding disputes
entrusted to ‘other tribunals’). The second (known as the
Connally Reservation, regarding disputes ‘essentially within the
domestic jurisdiction of the United States’)556has received some
attention,557though the United States had never invoked this
reservation as the sole ground of objection in any case before
the Court,558and did not do so at all in Nicaragua v. United States.559
According to the United States’ third reservation, 560the State
withholds consent to compulsory jurisdiction in disputes arising
556The reservation is commonly named for one of its principal

advocates, United States Senator Tom Connally.
557On the concept of domestic jurisdiction in reservations, see
Arangio-Ruiz (1996).
558By 1984, the United States was in limited company in
maintaining an ‘automatic reservation’ to its Optional Clause
declaration. As of Nicaragua’s initiation of this case, only five
States remained equally adherent to this practice (and still do
as of March 2016), while five others had all since withdrawn
said reservations—though, as Professor (later Judge) Crawford
noted at the time, the precise terms of these automatic
reservations varied somewhat. The reservations were declared
by Liberia (1952), Malawi (1966), Mexico (1947), the
Philippines (1972), and Sudan (1958); those withdrawn were
by France, India, Pakistan, South Africa, and the United
Kingdom. See further Crawford (1979), p. 67, n. 5.
559Nor has the Court been compelled to clearly pronounce
upon the validity of such provisions, though in Norwegian Loans it
left open the possibility that such reservations are permissible,
as several Judges have since implied (see the views of Judges
Armand-Ugon and Klaestad in the Interhandel case, both of whom
considered reservations to be generally severable from
Optional Clause declarations. Interhandel (Judgment), supra n. 22,
Dissenting Opinions of President Klaestad, pp. 76-78 and
Judge Armand-Ugon, pp. 93 ff; see contra, ibid., Separate Opinion
of Sir Percy Spender, pp. 57 and 59; Norwegian Loans (Judgment),
supra n. 7, Separate Opinion of Sir Hersch Lauterpacht, p. 58.
560The reservation is commonly named for one of its principal
advocates, United States Senator Arthur Vandenberg.
216 B. McGarry
from multilateral treaties unless all affected treaty parties are
also parties to the case. This provision is well out of step with
international practice, wherein the construction of conventions
(and the right to intervene in proceedings under Article 63 of
the ICJ Statute) attracts only limited voluntary participation by
third States.561Among those States which have retained it,
India’s Vandenberg Reservation has given rise to references to
Nicaragua
v. United
States in Aerial Incident of 10 August 199948and the
Nuclear Disarma-
49
mentcases. 9
The Court observed that the reservation was ‘obscure’ and
textually unclear.50Yet it did not elaborate upon the parties’
competing interpretations of supplementary evidence
regarding the reservation’s legislative history.51The Court’s
decision to apply the most literal meaning of the text was
guided largely by logical deductions concerning its object and
purpose. In dismissing the United States’ argument that the
reservation was intended to protect the United States and third
States from ‘ the inherently prejudicial effects of partial
adjudication of complex multiparty disputes,’52the Court simply
held that third parties which may be ‘affected by the decision’
are already protected under Article 62 of the Court’s Statute
(concerning third-party intervention) and the Optional
Clause.53It is uncertain whether the Court’s approach adheres
561See Tomuschat (2012), p. 97.

closely to rules of treaty interpretation according to 562563
56248India’s Vandenberg Reservation requires all Contracting

Parties to a treaty at issue—not merely those ‘affected by’ the
Court’s decision—to be parties to the dispute. While the Court
dismissed the case on other grounds (see Aerial Incident of 10 August 1999
(Pakistan v. India), Jurisdiction, Judgment, ICJ Reports 2000, p. 32, para 46
(hereinafter ‘Aerial Incident of 10 August 1999 (Judgment)’), Judge Al-
Khasawneh found that the availability of equivalent custom
rendered the Vandenberg Reservation irrelevant, even in the
more objective form adopted in India’s declaration (see ibid,
Dissenting Opinion of Judge Al-Khasawneh, pp. 49-50;
Counter-Memorial of India,
563 February 2000, para 82). See further Alexandrov (2001), pp.
119-121.
49
In this case, India distinguishes the Court's consideration of
conventions codifying customary international law in Nicaragua v.
United States from those customary obligations which the Marshall
Islands views as ‘rooted’ in a multilateral treaty. India also
draws a distinction between disputes ‘arising under’ a
multilateral treaty (per the United States’ Vandenberg
Reservation) and those ‘ concerning' the interpretation or
application of a convention (per the version of this clause in
India's Optional Clause declaration). See Obligations concerning
Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall
Islands v. India), Jurisdiction, Counter-Memorial of India, 16 September
2015, paras 77-82 (citing Nicaragua v. United States (Jurisdiction), supra
n.
50
2, pp. 424-425, para 73).
Nicaragua v. United States (Jurisdiction), supra n. 2, p. 424, para 72.
51
58See, e.g.,
Nicaragua v. United p. 423,
ibid.,States para 70. See
(Jurisdiction), supra further
n. 2, p.Separate Opinions
412, para 46.
218 B. McGarry
Articles 31 and 32 of the Vienna Convention, or whether it did

not consider it appropriate to extend its treaty law analogy to
this aspect of its analysis.564
The Court largely circumvented the Vandenberg Reservation
by applying equivalent norms of customary international law,
rather than directly relying upon the multilateral treaty
provisions cited by Nicaragua.565In so doing, the Court
interpreted ‘disputes arising under a multilateral treaty’ based
on both the most literal interpretation of the text and a series
of logical deductions,566as it had in respect of the ‘affected by
the decision’ clause (though here by direct analogy to
principles of treaty law):
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
of
52
Judge Mosler (pp. 465-466) and Judge Ruda (pp. 455-458).
Nicaragua v. United States (Jurisdiction), supra n. 2, p. 422, para 68.
53
Ibid., p. 425, para 74. See further Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 38, para 56 and p. 97,
para 182 (hereinafter ‘Nicaragua v. United States (Merits)’). See further Torber (2015), p. 152.
564The only reference in the Court’s jurisdictional analysis to
the Vienna Convention as reflecting specific customary norms
is a single mention of Article 46 (regarding internal
competence to conclude treaties) (see Nicaragua v. United States
(Jurisdiction), supra n. 2, p. 421, para 66). On the analogical
application of treaty law in this context, see Torber ( 2015), pp.
137-139.
565Nicaragua v. United States (Jurisdiction), ibid, pp. 424-426, paras 72-
76; Nicaragua v. United States (Merits), supra n. 53, pp. 95-97, paras
178-182 and pp. 99-100, para 188. See also Amr ( 2003).
Applying for the first time Article 79(7) of the 1978 Rules of
Court (currently Article 79 (9), concerning the deferral of
objections lacking an ‘exclusively preliminary character’), the
Court deferred to the merits phase the question of which third-
party States might be affected by its decision. See Nicaragua v.
United States (Jurisdiction), supra n. 2, pp. 425-426, para 76. See
further Rosenne (2006), pp. 769-771.
566See further Torber (2015), p. 153 (suggesting that the Court
would have interpreted the Vandenberg Reservation differently
had it referred to domestic material in the manner applied in
Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), Preliminary Objections, Judgment, ICJ
Reports 1952, p. 93 (hereinafter ‘Anglo-Iranian Oil (Judgment)’)).
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 567justify the other
State in declining to apply the other rule.
3.4 Formal Deposit
A ‘wholly unique’ jurisdictional issue in this case arose from the

fact that the League of Nations Secretary-General had never
received Nicaragua’s instrument of ratification of the PCIJ
Statute Protocol of Signature.58The Nicaragua Senate and
Chamber of Deputies approved the 1929 Declaration in 1935,
after which a telegram was sent by Nicaragua’s Minister of
Foreign Affairs to the League of Nations, informing the latter
that the instrument of ratification would be sent to
Nicaragua v. United States (Jurisdiction), supra n. 2, p.

58
567 Nicaragua v. United States (Merits), supra n. 53, pp. 95-96, para 178.
412, para 46.
220 B. McGarry
Geneva. This instrument was apparently never received.568After
the establishment of the ICJ, however, the Court’s Yearbook
continually included Nicaragua on its list of States recognizing
the compulsory jurisdiction of the Court, though with a
footnote which stated this fact.569
In its Judgment on Jurisdiction, the Court observed that
although Nicaragua’s declaration was valid in accordance with
Article 36 of the PCIJ Statute upon signature and deposit with
the League of Nations Secretary-General, it was not binding
during the PCIJ era because the Protocol conditioned Optional
Clause participation on deposit of the instrument of
ratification.570Nevertheless, the Court held that the 1929
Declaration entered into force upon Nicaragua’s later
ratification of the ICJ Statute.571To reach this conclusion, the
Court cited the lack of durational conditions in the 1929
Declaration,572the object and purpose of Article 36(5) of its
Statute,573and inferences drawn from the equivalence between
‘still in force’ and ‘pour une duree qui n’est pas encore expiree’ in the
English and French versions of that Article.574
The particular reasoning applied by the Court is perhaps
secondary to the necessity of its conclusion on this point, given
that a contrary result ‘would be penalizing Nicaragua for
having attached undue weight to the information given on that
point by the Court and the Secretary-General of the United
56859The Agent of Nicaragua surmised this was due to World

War II attacks on commercial shipping. See Nicaragua v. United States
(Jurisdiction), supra n. 2, pp. 399-400, para 16. See also Kolb
(2013), pp. 386-387.
569 Nicaragua v. United States (Jurisdiction), ibid., pp. 401-402, paras
60
19-20. See further Kolb (2013), p. 458.

57061Nicaragua v. United States (Jurisdiction), ibid., pp. 403-404, paras
25-26.
571Ibid., pp. 408-409, paras 35-36.
572Ibid., p. 404, para 27.
57364Ibid., p. 407, para 32, referring to this as ‘to preserve
existing acceptances’ (citing Aerial Incident of 27 July 1955 (Israel v. Bulgaria),
Preliminary Objections, Judgment, ICJ Reports 1959, p. 145).
574 Nicaragua v. United States (Jurisdiction), supra n. 2, pp. 406-407,
5
para 31. See further Shaw (2008), p. 1083.

Nations.’575The Court emphasized that Nicaragua’s conduct
reflected its belief that it was bound under the Optional
Clause, in particular its failure to object to that basis of
jurisdiction in the Arbitral Award of 23 December 1906 case which
Honduras had initiated against it in 1958.576The Court
ultimately resolved the question of declaration deposit with the
principle it had applied to declaration withdrawal: ‘The
575Nicaragua v. United States (Jurisdiction), ibid., p. 412, para 46

(referring to Nicaragua’s inclusion in the Court’s reports to the
UN General Assembly and the Yearbook list, which States had
reproduced without
Nicaragua v. United
58
objection for supra
States (Jurisdiction), decades).
n. 2, p.
576 Ibid., p. 410, para 39.
61
412, para 46.

Court cannot regard Nicaragua’s reliance on the optional
clause as in any way contrary to good faith [. ..].’ 577
4 A Systemic Appraisal of the Nicaraguan Cases
4.1 The Optional Clause in Theory

The Court’s jurisdictional decision in Nicaragua v. United States has
provided some clarity to the international bar’s understanding
of Article 36 of the ICJ Statute.578The decision also expressly
recognized for the first time the right to withdraw consent
under the Optional Clause, subject to the principle of good
faith.579Yet the Court’s derivation of this principle from the law
of treaties also reflects tensions in the nature of unilateral
declarations and the character of the Optional Clause
system.580The Court’s analogical application of treaty law and
unilateralist characterization of declarations are strange
bedfellows meriting further analysis.
4.1.1 Analogy with the Law of Treaties
Nicaraguav. United States advances from the Court’s earlier

jurisprudence on the Optional Clause, notably the Right of Passage
case, which referred to the ‘consensual bond’ established by
57768Ibid., pp. 412-413, para 47 and pp. 414-415, para 51. In
response to the United States’
578allegations that Nicaragua had over the years made
contrary bilateral representations which estopped it from
relying upon the 1929 Declaration, the Court found that the
allegations failed to meet the North Sea standard for estoppel. Ibid.,
pp. 414-415, para 51, referring to North Sea Continental Shelf (Federal Republic
of Germany/Denmark; Federal Republic of Germany/Neth- erlands), Judgment, ICJ Reports 1969, p.
3. See further Rosenne (2006), pp. 721-723.
57969For example, commentators have predicted that the
Court’s 1984 Judgment effectively settled the scope of Article
36(5), ensuring that it will no longer give rise to difficulties in
future
73 cases. See Tomuschat (2012), p. 108.
580Ibid.
70,See
pp. Jones
143 (1985), p. 578.
and 146.
declarations between parties but, on the other hand,
recognized the right of States ‘to terminate their Declarations
of Acceptance by simple notification without any obligatory
period of notice.’581Thus the Court in Nicaragua v. United States has
leaned on the principle of good faith, in accordance with pacta
sunt servanda, to mitigate the systemic difficulties which
confirming Right of Passage’s premise of automatic termination
would herald.582This aspect of
58171See Torber (2015), p. 309.

582 Right of Passage (Judgment), supra n. 27, p. 153.
12
224 B. McGarry
the decision sets a high-water mark for the contractual view of

the Optional Clause system.
The Court’s acknowledgement in Nicaragua v. United States of a
general right of modification ‘inherent in any unilateral act of a
State’ would appear to be at odds with earlier State practice.
For example, at the advent of World War II, France and the
British Commonwealth States each modified their Optional
Clause declarations so as to exclude disputes arising from the
hostilities—not on the basis of an inherent right of withdrawal,
but due to a fundamental change of circumstances.583In view
of this, and the objections of States such as
Switzerland,584some have argued that the practice (and the
strong words, narrow tailoring, and legal character of the
French and Commonwealth modifications) suggests that these
States assumed that a right of instant withdrawal was not
available.585
Yet the Court in Nicaragua v. United States resolved this tension
by qualifying that general right with the language of treaty law
—not the application of rebus sic stantibus as advocated by the
United States, but the principle of good faith in the form of
‘quasi-treaty’ expectations586:
Although the United States retained the right to modify
the contents of the 1946 Declaration or to terminate it, a
power which is inherent in any unilateral act of a State, it
has, nevertheless assumed an inescapable obligation
towards other States accepting the Optional Clause, by
stating formally and solemnly that any such change
should take effect only after six months have elapsed as
from the date of notice.587
583 PCIJ Series E, No. 16, p. 337 (France) and p. 339 (United
14
Kingdom).
584 Ibid., p. 333. See also Official Journal of the League of Nations (1939), pp.
15
407 ff and (1940), PP. 45ff

585See Nicaragua v. United States (Jurisdiction), Oral Arguments, vol.
III (Nicaragua), pp. 65 ff (Brownlie); Border and Transborder Armed Actions,
Oral Arguments, vol. II (Nicaragua), pp. 124 ff (Pellet). See
further Kolb (2013), p. 521 and Torber (2015), p. 302.
586See Memorial of Nicaragua (Jurisdiction), supra n. 16, para
110 (citing Fitzmaurice1958, p. 75).
Scholars have suggested that any alternative conclusion by
the Court on this point would have left the text of Optional
Clause declarations devoid of meaning.588Yet the Court may
also be seen to have applied a ‘quasi-treaty’ approach to some
other elements of the case. For example, its resolution
concerning formal deposit depended not so much on the text
of the Article 36(5) of the Statute and the PCIJ Statute
Protocol of Signature, but on legitimate expectations and
reliance which recognition of the 1929 Declaration had created
between Nicaragua and other States.589By citing the principle
of good faith in its conclusion that Nicaragua— despite having
never deposited its instrument of ratification with the
Secretary- General of the League of Nations—had nevertheless
satisfied the requirements of deposit through other
performative means, the Court stressed the importance of
established expectations over rigidly formal contractual
requirements. This ‘function over form’ approach recalls as well
its emphasis on established expectations in its decision
rendering the Shultz Letter ineffective. This approach also
appears to elevate the ‘consensual nature of the juridical
bond’590to the point that it is ‘basically contractual in
nature’591because such declarations ‘interlock.’592Nevertheless,
the fact that they are not formal treaties leaves the Court
significant interpretative room.
The recognition of an unimpeded right of withdrawal in Right
of Passage—a case that Nicaragua nevertheless cited in Armed
Actions to support a contractual approach—calls into question
the extent to which the contractual model of declarations can
accommodate unilateralism (perhaps under the rubric of
‘freedom of contract’). The United States’ decision to not
invoke the Connally Reservation in Nicaragua v. United States may
589See Kolb (2013), p. 390.
59081Memorial of Nicaragua (Jurisdiction), supra n. 16, para 110
(citing Waldock1956, p. 254).
591Ibid. (citing Fitzmaurice1957, pp. 230-232).
59283South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment, Joint Dissenting Opinion of Sir Percy Spender and Sir Gerald Fitzmaurice, ICJ Reports
226 B. McGarry
be seen to have deprived the Court of the opportunity to test

the limits of this freedom. While on the substance of domestic
jurisdiction some scholars have drawn from Interhandel the
premise that the Connally Reservation might aid a declarant
State in ambiguous situations where specific classification of
the subject-matter is in question, the self-judging nature of the
reservation would seem to run counter to the codification of
the Court’s compe tence de la competence in Article 36(6) of the
Statute.593The manner in which such provisions might be
invalidated would be instructive for marking other potential
limits to the freedom with which States draft offers to contract
through the Optional Clause. In this sense, while reservations
to Optional Clause declarations and those to multilateral
treaties may arise from different conceptual angles,594questions
regarding the Connally Reservation’s validity nevertheless find
some functional analogy in treaty practice as well.595596597598599
5931962, p. 476.
59484See Tomuschat (2012), p. 96.
59585See Owada (2010), p. 6. Some scholars have observed that
while conceptual limitations on the
596free choice of reservations may exist, these limits are
merely academic, without basis in existing practice, see
Tomuschat (2012), p. 83.
59786In terms of its pure subjectivity, the self-judging nature of
this reservation may bear some resemblance to the common
reservation of ‘honour and vital interests’ in general treaties of
598arbitration which preceded the advent of the Optional
Clause. The Optional Clause system
599arguably permitted such unworkable concepts to continue
in use after they had waned in treaty form, since the unilateral
nature of declarations reduced the likelihood that self-judging
reservations would be excised during drafting. A sensible
counterpoint was provided by proponents of British accession
to the PCIJ’s Optional Clause, who argued that the Optional
Clause system marked a necessary advance beyond the
sweeping prewar reservations of general treaties of arbitration
(see Lauterpach 2004, p. 50; Lloyd1995, p. 39 (citing League of
One of the strongest potential links between Optional Clause
declarations and the law of treaties concerns the applicability
of the 12-month default notice period in Article 56(2) of the
Vienna Convention to declarations which do not expressly
Nations Union1928)).
228 B. McGarry
dictate a notice period for withdrawal or modification. The
Court laid the foundation for this in dicta in Nicaraguav. United
States (‘the right of immediate termination of declarations with
indefinite duration is far from established’),87and Nicaragua
expressly raised the issue in Border and Transborder Armed Actions
without receiving a decision on this point.88Commentators who
support the normative relevance of Article 56(2) to such
declarations have drawn heavily from the Nicaraguan cases
when proposing judicial clarification of this issue.89
4.1.2 Tensions with the Law of Treaties
Despite the logical links between the Optional Clause system

and the exchange of obligations in treaty form, this premise
has been subject to criticism since the codification of the law
of treaties. Although Sir Humphrey Waldock’s survey of State
practice has since been well-cited in parties’ arguments before
the Court—and despite significant support in its earlier work on
the law of treaties—the ILC refrained from endorsing his
reference to Optional Clause declarations when formulating the
law of treaties during the drafting of the Vienna
Convention.90Sir Humphrey’s pithy characterization of Optional
Clause declarations as ‘sui generis’ has not helped to clarify
94
The distinction between these two meanings of ‘sui generis’
appears somewhat conflated even in
the work of esteemed scholars of the Optional Clause. See,
e.g., Fitzmaurice (1999), pp. 134-135
(analogizing between the aforementioned statements of Sir
Humphrey and Judge Jennings).
matters in the years since.600601602Whereas for Sir Humphrey
this phrase denoted a grey area between bilateral and
multilateral treaty conceptions of these declarations, the
phrase would be used by Judge Jennings in Nicaragua v. United
States92 (and later by the Court in Fisheries Jurisdiction)93to denote a
broader grey area between non-treaty and treaty
conceptions.603
As to the bilateral relations of Optional Clause participants,
commentators since Nicaragua v. United States have observed
strains in the treaty practice analogy that

para 63.
88
Cf. Border and Transborder Armed Actions (Judgment), p. 88, para 41 and
p. 90, para 48. 89See Torber (2015), p. 310 (citing Christakis 2011;
Giegerich 2012).
90
See Rosenne (2006), pp. 790-792 (citing Sir Lauterpacht H,
Special Rapporteur, First report on the law of treaties, UN Doc.
A/CN.4/63, YbILC 1953, Vol. II, pp. 90-162; Paragraph 6 of the
Commentary to Draft Article 1 on the Law of Treaties, YbILC 1959,
Vol. II, p. 93 and Sir Waldock H, Special Rapporteur, First
report on the law of treaties, UN Doc. A/CN.4/144, YbILC 1962,
Vol. II, pp. 27-80).
91
Waldock (1956), p. 254 (‘[W]hile the relation established
between States by their declarations is for most purposes
bilateral, it also has a multilateral aspect. The easiest course
is, perhaps, to call it a consensual relation which is sui generis’).
601Nicaragua v. United States (Jurisdiction), supra n. 2, Separate Opinion
of Sir Robert Jennings, p. 546 (‘[T]he Optional-Clause regime
is sui generis. Doubtless some parts of the law of treaties may be
applied by useful analogy; but so may the law governing
unilateral declarations [...]’).
602Fisheries Jurisdiction (Spain v. Canada), Preliminary Objections, Judgment, ICJ Reports 1998,
603p. 453, para 46 (hereinafter ‘Fisheries Jurisdiction (Judgment)’).
230 B. McGarry
are apparent shortly before the institution of a case. While
States will generally take care to safeguard their interests as
regards treaties they no longer wish to apply inter se (i.e.,
through amendment or denunciation), such caution appears to
be less common as regards Optional Clause
declarations.604Diplomatic negotiations by Optional Clause
participants may not necessarily reveal one party’s willingness
to initiate a case before the Court, thus explaining why an
opposing State may lack the foresight to withdraw its
declaration. Furthermore, to the extent that a State may only
learn of an impending case immediately prior to the filing of an
application instituting proceedings, the Court’s adoption of the
‘reasonable’ notice standard in Nicaragua v. United States may
render this option impracticable.
Reservations have provided particularly fertile ground for
distinguishing treaties from Optional Clause declarations.
Scholars have noted the fundamentally different functions of
reservations to treaties (as detracting from a mutual balance of
obligations) and those to Optional Clause declarations (as
building towards that balance), as well as the ability to
terminate or modify the latter on terms which are set
unilaterally.605As regards the Vandenberg Reservation in
particular, while some observers have posited that the
methodologically vague interpretation of this provision in
Nicaragua v. United States provides no basis to presume that the
rules of interpretation for declarations differ from those
applicable to treaties,606the Court’s decision did not affirm or
otherwise emphasize this analogy.607
As regards conditions in Optional Clause declarations, some
Members of the Court and commentators have maintained that
it is irrational to consider that unilateral declarations which are
silent as to termination may not be unilaterally withdrawn or
604See Lamm (2014), p. 88.

605See, e.g., Fitzmaurice (1999), pp. 157-158; Rosenne (2006),
pp. 822-823 and 825.
606See Torber (2015), pp. 153-154.
607See Kolb (2013), p. 390.
amended.608This emphasis on the ‘facultative,
unilateral’609character of declarations appears to find support in
the Court’s earlier dictum in Right of Passage that States are free to
terminate declarations at will (irrespective of the ‘consensual
bond’ established between the parties),610as well as the Court’s
flat rejection of treaty analogy in Anglo-Iranian Oil: ‘[T]he Iranian
declaration is not a treaty text resulting from negotiations
between two or more States. It is the result of unilateral
drafting by the Government of Iran.’611
Some scholars have observed that the Court’s discussion in
Nicaragua v. United States regarding Article 36(5) of its Statute and
the Protocol of Signature to the PCIJ Statute suggests that the
Court found it appropriate to borrow Vienna Convention
principles regarding pacta sunt servanda but not those regarding
interpretation.612In response to the Court’s finding that ‘the
constant acquiescence of [Nicaragua] in those affirmations
constitutes a valid mode of manifestation of its intent to
recognize the compulsory jurisdiction of the Court,’613others
have argued that the Court relied upon non-textual and
supplementary means to clarify the ‘intent’ of the 1929
Declaration more so than when interpreting the more facially
ambiguous 1946 Declaration.614These criticisms call into
question the extent to which the Court has consistently applied
general rules of treaty interpretation to Optional Clause
declarations.
As regards reciprocity, the relationship between this
principle and conditions to Optional Clause Declarations—as
advanced by the Court in Nicaragua v. United States—has been
reserved for harsh criticism by Judges Schwebel and Oda and
608See discussion in Orrego Vicuna (2002), p. 472 (referring to

Judge Oda and Ambassador Rosenne).
610Right of Passage (Judgment), supra n. 27, pp. 143 and 146.
611Anglo-Iranian Oil (Judgment), supra n. 57, p. 105.
612See Onego Vicuna (2002), p. 474.
613 Nicaragua v. United States (Jurisdiction), supra n. 2, pp. 412-413,
W4
para 47.
614See Kolb (2013), p. 390.
232 B. McGarry
commentators, who consider that a time-limit may be as
integral as any other element of a declaration.615Some
commentators have gone so far as to suggest that the
reference to ‘unconditionally’ in Article 36(3) of the Court’s
Statute enables States to treat reciprocity as a condition of
consent and thereby exclude it (i.e., reciprocity must be
expressly mentioned, rather than presumed to be
inherent).616However, in terms of the analogical coherence
between Optional Clause declarations and treaties, perhaps the
most damaging aspect of the Court’s treatment of reciprocity
was its finding that the principle is for the Court alone to
consider at the time of seisin. The Court chose not to establish
the legal fiction required to confer this inherently bilateral
control to States when making ‘facultative, unilateral
engagements.’617This is difficult to reconcile with the
contractual view of declarations as open offers, opposable to
as-yet-undetermined States in as-yet- undetermined
circumstances.
As reciprocity concerns an assessment of obligations
assumed by States, some scholars have suggested that the
Court misapplied contractual principles of acquiescence in
finding that Nicaragua must be held to have undertaken ‘the
same obligation’ (within the meaning of the Optional Clause),
despite having never deposited its instrument of ratification for
the 1929 Declaration. While acquiescence serves to prevent a
State from objecting to a legal assertion which it had not
previously rejected (as codified in Article 45 of the Vienna
Convention), Nicaragua v. United States may be seen to have instead
raised the question as to whether a State may derive rights
from its own ambiguity and negligence.618
615See discussion in Orrego Vicuna (2002), p. 478.

616See, e.g., Farmanfarma (1952), p. 67.
See further Quintana (2015), p. 96.
Problems with the analogy to treaty law are also evident in
the view of some commentators—and arguably the practice of
the Registry of the Court110—that Optional Clause declarations
may be irrevocable by virtue of their silence regarding
withdrawal.111The Court’s pronouncements in Nicaragua v. United
States might lend some general support for this view, since to
the extent that third-party States consider such declarations to
be irrevocable, a finding that they are instead variable would
perhaps undercut those States’ expectations and the reliance-
based rationale for incorporating good faith as a principle of
treaty law.112Nevertheless, though the Court did not have
occasion to resolve the issue in Border and Transborder Armed Actions,
this rigidly direct application of Article 56(1) of the Vienna
Convention to Optional Clause declarations is ‘misleading’ and
‘illogical’ in the view of Judge Oda.113Moreover, while Sir
Humphrey Waldock embraced this irrevocability in his earlier
writings,114by the time he took up his post as ILC Special
Rapporteur he had abandoned that position in favour of the
implied revocability of dispute settlement instruments.115The
failure of the ILC to endorse this categorical right of
denunciation in Article 56 of the Vienna Convention has left Sir
Humphrey’s analogy to treaty law intact, while leaving the fate
of his views on implied revocability open to interpretation—a
malleability which Nicaragua would employ to its advantage in
116
See, e.g., Memorial of Nicaragua (Jurisdiction), supra n. 16,
para 137 (referring to Sir
Humphrey’s earlier view on irrevocability when arguing for the
continued force of the 1946
Declaration’s 6-month notice provision).
234 B. McGarry
Nicaragua v. United States.116
619620621622623624
4.2 Legacy in Subsequent Decisions
4.2.1 Precedent Before the Court

The following two instances briefly illustrate how the Court’s
treatment of the Optional Clause in the Nicaraguan cases has
influenced its subsequent jurisdictional and procedural
decisions.
4.2.1.1 Land and Maritime Boundary
In its June 1998 Judgment on Preliminary Objections in the

Land and Maritime Boundary case (initiated by Cameroon against
Nigeria), the Court cast Nicaragua v. United States as part of a
lineage of cases, including Norwegian Loans and Temple of Preah
Vihear,117which had affirmed ‘the very essence of the Optional
Clause’ as ‘standing offer[s]’ that establish a ‘consensual bond’
619See discussion of the Registry’s reactions to Colombia’s

1937 ‘correction’ and Paraguay’s 1938 withdrawal in Counter-
Memorial of the United States (Jurisdiction), para 369;
Waldock (1956), pp. 263-264; Waldock, Second report, p. 68,
param 18 and Shihata (1965), p. 167, n. 1.
620 See, e.g., Kebbon (1989), p. 261.
621 Cf Nicaragua v. United States (Jurisdiction), supra n. 2, p. 418, para
2
60 (emphasizing ‘good faith and confidence in particularly

unambiguous terms’).
622Oda (1988), p. 18.
623Waldock (1956), p. 265 (‘On principle, therefore, there is no
right of unilateral termination of a declaration under the
Optional Clause unless the right has been expressly reserved in
the declaration’ ).
624See Waldock, Second report, p. 68, para 18 (‘State practice
under the Optional Clause declaration [...] seem only to
reinforce the clear conclusion to be drawn from the treaties of
arbitration, conciliation and judicial settlement, that these
treaties are regarded as essentially of terminable character’ ).
Cameroon v. Nigeria (Jurisdiction), supra n. 118, p. 295, paras 33-34.
120
This pronouncement
may be seen to clarify a broader distinction between the view
of the Optional Clause system as
‘quasi-treaty’ and the Roman doctrine of ‘quasi contract’. See
further Corbin (1912); Radin (1937).
when another State accepts the same obligation. 118The present
case enabled the Court to clarify the scope of application for
the principle of good faith. Nigeria argued that the principle's
requirement of a ‘reasonable' notice period for withdrawal of
an Optional Clause declaration should extend as well to such
declarations’ entry into force, such that they may not be used
to ‘ambush’ other States with sudden litigation.119The Court
rejected this contention, clarifying that the principle it had
pronounced in Nicaragua v. United States ‘in respect of the
withdrawal of declarations under the Optional Clause is not
applicable to the deposit of those declarations.’ 120
Commentators have noted that the Court's distinction of
notice requirements for declaration withdrawal in Nicaragua v.
United States from the lack thereof for declaration deposit in Land
and Maritime Boundary raises questions as to the position in which it
places a State such as Nigeria, which may be unaware that it
can be sued by a negotiating partner to whom it has made
concessions which might 625626627628629630631632633634
625Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, Judgment, ICJ Reports
1961, pp. 17 and 31.
626118Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Prelim
627inary Objections, Judgment, ICJ Reports 1998, p. 291, para 25 (hereinafter ‘Cameroon v. Nigeria
628(Jurisdiction)’). See further Fitzmaurice (1999), pp. 142-143.
The Court would again embrace Nicaragua v. United States as part of a
lineage of case law in Aerial Incident of 10 August 1999,
629while at the same time immunizing itself from the 1984
Judgment’s critics by emphasizing that the
630onus is on States to finely tailor their declarations insofar
as they wish to restrain the Court’s
631creative faculties. See Aerial Incident of 10 August 1999 (Judgment),
supra n. 49, p. 29, para
63236 (citing Phosphates in Morocco, Judgment, 1938, PCIJ Series A/B, No. 74, p. 23 and Nicaragua
633v. United States (Jurisdiction), supra n. 2, p. 418).
236 B. McGarry
impair its case.635While other scholars have observed that the
Court’s views on reasonable notice in Nicaragua v. United States
were unconcerned with the fairness of this situation,636such
questions persist precisely because of the conceptual link
between good faith and fairness, as well as the difficulty of
narrowly tailoring such broad principles to case-specific
aspects of unilateral declarations.
Notably, Nigeria did not wait for the Court’s clarification.
Months before the Judgment on Preliminary Objections, it
supported a trend towards inclusion of ‘anti-ambush’
reservations in declarations by withholding consent to
disputes.
in respect of which any party to the disputes has
accepted the jurisdiction of the Court by a Declaration
deposited less than Twelve Months prior to the filing of
an Application bringing the dispute before the Court after
the date of this Amended Declaration [.. .].637
Cameroon had accepted the Court’s Optional Clause
jurisdiction weeks before initiating its claim against Nigeria,
while Nigeria and other UN Member States did not receive
notice from the UN Secretary-General of Cameroon’s deposit
until the following year.638Nigeria sought to avoid such
circumstances in the future by adopting this form of
reservation, which deters other States from acceding to the
Optional Clause solely for the purpose of litigating an ongoing
dispute.
As regards conditions to declarations, the Court in Land and
Maritime Boundary reiterated its finding in Nicaragua v. United States that
reciprocity is not concerned with ‘the formal conditions of [ . . . ]
635See Elias, Lim (1999), p. 238; Simma (2009), p. 457 (‘[A]
Sword of Damocles in the form of a binary decision which can
go either way may induce states to apply increased flexibility
and original thought in negotiations in order to reach a
satisfactory conclusion to international disputes’).
637Declaration of Nigeria, 30 April 1998 (available at www.icj-
cij.org/jurisdiction/?p1 =5&p2= 1&p3
Cameroon v. Nigeria (Jurisdiction),
120
supra n.=3&code NG). paras 33-34.
118, p.=295,
638
ThisCameroon v. Nigeria (Jurisdiction), supra n. 118, pp. 283-289,
pronouncement
paras
may be 18-19.
seen See further
to clarify Fitzmaurice
a broader (1999), pp.
distinction 142-143.
between the view
of the Optional Clause system as
‘quasi-treaty’ and the Roman doctrine of ‘quasi contract’. See
further Corbin (1912); Radin (1937).
creation, duration or extinction’ of substantive
commitments.639Yet in the Fisheries Jurisdiction case decided
months later (and discussed below), the Court also
emphasized the common character of conditions and
reservations: ‘[c]onditions or reservations thus do not by their
terms derogate from a wider acceptance already given.
Rather, they operate to define the parameters of the State’s
acceptance of the compulsory jurisdiction of the
Court.’640641Taking this in tandem with the Court’s earlier
statement that Optional Clause declarations are ‘facultative,
unilateral engagements’, these cases seem to adopt the least
treaty-like aspects of Nicaragua v. United States.121
639Cameroon v. Nigeria (Jurisdiction),ibid, pp. 298-299, para 43.

640Fisheries Jurisdiction (Judgment), supra n. 93, pp. 452-453, para 44.
On reservations, see further Fitzmaurice (1999), pp. 157-158;
Rosenne (2006), pp. 822-823 and 825.
641On this aspect of Land and Maritime Boundary, see Fitzmaurice (1999),
pp. 150-151.
238 B. McGarry
4.2.1.2 Fisheries Jurisdiction
Several months after the aforementioned decision in Land and Maritime Boundary, the
Court announced in December 1998 its Judgment on Preliminary Objections in the
Fisheries Jurisdiction case initiated by Spain against Canada. The Judgments in both
cases emphasise the ‘facultative, unilateral’ aspects of the Court’s characterization
of Optional Clause declarations in Nicaragua v. United States, rather than that case’s
treaty-like incorporation of the principle of good faith. This framing of the Court’s
dictum in Nicaragua v. United States recalls the most Westphalian elements of that
earlier Judgment, wherein the Court conceded broad control of these instruments
to States: ‘In making the declaration a State is [ . . . ] free either to do so
unconditionally and without limit of time for its duration, or to qualify it with
conditions or reservations.’642The Court further developed this unilateralism in
Fisheries Jurisdiction by dispelling Spain’s argument that reservations which are
contrary to general rules of international law are incapable of forming a
consensual bond.643As the Court noted, a reservation’s legality is a question which
cannot be entertained until it has assumed jurisdiction over the dispute. 644Had the
Court considered that Canada had consented to its jurisdiction, it would
presumably have proceeded to consider the legality of the reservation. 645
As a tactical point, Nicaragua v. United States may have also impacted the
proceedings in Fisheries Jurisdiction insofar as Canada responded to the application in
the latter case by informing the Court that it ‘manifestly lacks jurisdiction’ pursuant
to Canada’s reservation.646This is a semantic but peremptory advance upon the

643129Fisheries Jurisdiction (Judgment), supra n. 93, pp. 455-456, para 54.
644130Ibid.
645131Should a reservation be held invalid, the Court could determine the
severability of such provisions from the essential consent of the declaration—a
question it sidestepped as regards Portugal’s expansive but not per se invalid
reservation in Right of Passage (supra n. 27, pp. 143 and 146), and into which the United
States had decided not to venture regarding the
646Connally Reservation in Nicaragua v. United States. Insofar as a reservation might be
invalid, the question of its severability from the declaration may be treated under
the law of treaties. Under Article 44(3) of the Vienna Convention, severability
requires that the reservation not concern the
133
See reference in Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), Provisional Measures, Order of 10 May 1984, ICJ Reports 1984,
p. 172, para 6.
United States’ more subjective response to the initiation of Nicaragua v. United States
(stipulating its ‘firm conviction that the Court was without jurisdiction’),647648649and
a perhaps misleading suggestion that Fisheries Jurisdiction would follow a course of
rigidly objective interpretation for Optional Clause reservations.
4.2.2 Cross-Fertilization in Other Fora
Given the limited number of bodies with statutory provision analogous to the
Optional Clause, the reference of the Inter-American Court of Human Rights to
Nicaragua v. United States in this context has been particularly notable. 134The Inter-
American Court has relied on this case to affirm that the optional character of a
declaration accepting compulsory jurisdiction does not automatically permit
changes to the meaning and extent of that consent. 135In contrast with the ICJ, the
Inter-American Court has held that treaty law is directly applicable to declarations,
stating in reference to Nicaragua v. United States that ‘in order for an optional clause to
be unilaterally terminated, the pertinent rules of the law of treaties must be
applied.’650
The Inter-American Court has also taken a more definitive stance than the ICJ
on the permissible scope of reservations. In its invalidation of Trinidad and
Tobago’s declaration accepting compulsory jurisdiction ‘only to such extent that
recognition is consistent with [its Constitution], and provided that Judgment of the
Court does not infringe, create or abolish any existing rights or duties of any
private citizen,’651the Inter-American Court stated:
The declaration formulated by the State of Trinidad and Tobago would allow
it to decide in each specific case the extent of its own acceptance of the
Court’s compulsory jurisdiction to the detriment of this Tribunal’s compulsory
functions. In addition, it would give the State the discretional power to
decide which matters the Court could hear, thus depriving the exercise of the
647‘essential basis of the consent’ in the declaration. The analogical application of

this standard was presaged by Judge Lauterpacht in Norwegian Loans, and has since
been adopted by some scholars
648(see Norwegian Loans (Judgment), supra n. 7, Separate Opinion of Sir Hersch
Lauterpacht, p. 59 and Kolb 2007, p. 884).
649132See Rosenne (2007), p. 172.
650134See American Convention on Human Rights (San Jose, 22 November 1969),
Article 62(1). 135See discussion in Orrego Vicuna (2002), p. 465.
136
Constitutional Court v. Peru (Competence), IACHR Series C, No. 55, Judgment, 24 September
1999, (hereinafter ‘Constitutional Court v. Peru'), para 52. See further Torber (2015), p. 310.
651 Constantine et al., IACHR Series C, No. 82, Judgment, 1 September 2001, para 42.
7
139
Note of 23 February 1956 (reproduced in Right of Passage,
Memorial of India (Jurisdiction),
p. 217). See further Thirlway (2015), n. 436 and Lamm (2014),
pp. 69-70.
240 B. McGarry
Court’s compulsory jurisdiction of all efficacy.652
Thus, the Inter-American Court has in its practice imposed a limit upon the oft-
cited dictum of the ICJ in Nicaragua v. United States that Optional Clause declarations
are ‘unilateral, facultative engagements’. In so doing, it has resolved within its
own domain a question which has been posed in ICJ case law since Sweden
publicly objected to a sweeping reservation in the declaration that Portugal had
deposited in order to institute the Right of Passage case.139
The ICJ’s treatment of the Optional Clause in the Nicaraguan cases has
surfaced as well in investment law practice. Tribunals constituted under the
auspices of the International Centre for Settlement of Investment Disputes have
drawn analogy to such declarations when assessing the legal effect of host State
legislation providing
652138Ibid., para 83.

consent to arbitration.653Such tribunals have specifically

referred to Nicaragua v. United States for the applicability of the
principle of good faith to unilateral declarations, and to
subsequent ICJ cases for the premise that instruments of
consent to international dispute settlement must be
interpreted according to international law.654
4.3 Influence on State Practice
The immediate fallout of the Court’s jurisdictional decision in

Nicaragua v. United States famously included the United States’ non-
appearance in the merits phase of the case and termination of
its Optional Clause declaration in full. This decision also
triggered broad soul-searching in the American international
legal community.655Looking beyond the parties to that case,
however, a sea change in State practice has been difficult to
discern. Nevertheless, some positive trends have followed
logically from the Court’s treatment of the Optional Clause in
the Nicaraguan cases.
On the one hand, the number of Optional Clause
declarations in effect since the Court’s 1984 Judgment on
Jurisdiction in Nicaragua v. United States has significantly increased,
from 47 on that date to 72 as of March 2016. 656This includes a
core of States with unconditional declarations.657On the other
hand, many of these are tightly circumscribed with
reservations.
653See, e.g., Mobil Corp. and others v. Bolivarian Republic of Venezuela, ICSID
Case No. ARB/07/27, Decision on Jurisdiction, 10 June 2010.
654See ibid., paras 84 and 170. See further Mbengue (2012), p.
210; Potesta (2011), p. 166; and Tejera Perez (2008), p. 107.
655See D’Amato (1985), p. 385 (considering whether the rules
of international law as a whole are in the United States’
national interest); Scott and Carr (1987), pp. 57, 69 and 76
(questioning whether international adjudication remains a
generally appropriate mechanism for settling disputes between
nations).
139
Note of 23 February 1956 (reproduced in Right of Passage,
656See
Memorial Shaw (2008),(Jurisdiction),
of India pp. 1081-1082.
657Merrills ( 2009), p. 444.
p. 217). See further Thirlway (2015), n. 436 and Lamm (2014),
pp. 69-70.
242 B. McGarry
In terms of volume of applications and compliance with
decisions, the Optional Clause system has kept in fairly good
health in the years since Nicaragua v. United States. In proportional
terms, while a lower percentage of States Parties to the Court
have accepted its compulsory jurisdiction than occurred during
the PCIJ era, a larger percentage of the cases argued before it
have been introduced on the sole or alternative basis of the
Optional Clause.658
The failure of the United States to effectively modify its
1946 Declaration prior to Nicaragua’s application to the Court
has not prevented other States from purporting to withdraw or
modify Optional Clause declarations for the transparent and
timely purpose of avoiding litigation with another specific
State. For example,
658See Simma (2009), p. 458.

Australia in 2002 withdrew its consent to the Court’s
compulsory jurisdiction over maritime boundary disputes for
the likely purpose of preventing Timor-Leste from submitting
the question of their mutual Timor Sea boundary to the
Court.659
A somewhat more ambiguous indicator of the impact of the
Nicaraguan cases on State practice concerns notice provisions
in Optional Clause declarations. The Court’s treatment of
reciprocity in Nicaragua v. United States resulted in a number of
States revising their declarations to make it clear that they
reserved the right to withdraw them with immediate effect.
Weeks before the Court issued its Judgment on the Merits in
that case, Honduras deposited a reservation to its declaration
that claimed such a right. Canada and Cyprus thereafter
followed this example.
It is true that other States avoided this path when filing
declarations shortly after the Court’s decision in Nicaragua v.
United States, such as Suriname’s declaration providing a 12-
month notice period for withdrawals. Moreover, to the extent
that a trend towards ‘immediate withdrawal’ reservations has
been evident, it arguably began before the Court’s decision in
that case,660as may be seen in Barbados’s 1980 declaration.661
Nevertheless, the Court’s findings in Nicaragua v. United States
appear to have helped this trend along.662Of the 37
declarations which were initially deposited or modified since
the Court’s 1984 Judgment and which remain in force, 25
expressly reserve the right to terminate at any time.663Only six
659See Oude Elferink (2015), n. 119.

660See Merrills (2009), pp. 434-435.
661See Torber (2015), pp. 188-189.
662See Merrills (2009), pp. 434-435.
663This highly varied group of States consists of Australia,
Canada, COte d’Ivoire, Cyprus, the Democratic Republic of the
Congo, Djibouti, Germany, Greece, Guinea, Honduras, Ireland,
Italy,
153
SeeJapan, Lesotho,
Tomuschat (2012Lithuania,
), p. 76. Cf.Madagascar, the Marshall
Border and Transborder Armed Actions,
Islands, Nigeria, Peru, Portugal, Romania, Senegal, Slovakia,
Counter-Memorial
Timor-Leste,
of Nicaragua,and the United Kingdom.
supra n. 27, para 96 (arguing that a twelve-month
notice period is ‘reasonable’, by
analogy to Article 56(2) of the Vienna Convention).
244 B. McGarry
of the 37 declarations have specified a defined notice period

for withdrawal or modification.664As for the four declarants
which have remained silent as to notice requirements,665the
suggestion among some scholars that 3 months is a
‘reasonable’ notice period to satisfy the good-faith standard
advanced by the Court in Nicaragua v. United States may have some
inferential basis in practice.153For example, Costa Rica lodged
its objection
664These States are Bulgaria, Guinea-Bissau, Hungary,

Norway, Poland, and Suriname. Of the remainder, one was
filed for an initial 5-year period which has since expired
(Declaration of Cameroon (3 March 1994)), and one provides a
‘fluid’ 6-month notice period, offered on the express condition
of reciprocity and pegged to the notice period provided by the
opposing declarant State (if less than six months) (Declaration
of Spain (20 October 1990)).
665These States are Dominica, Estonia, Georgia, and
Paraguay.
to Nicaragua’s 2001 reservation approximately two and a half
months after it was deposited.666
As regards the fate of the Connally Reservation in State
practice, a similar formulation may still be found in very few
declarations, as this reservation has not proven helpful to
Optional Clause participants. It is notable that in Nicaragua v.
United States the United States did not refer to it; commentators
have observed that the United States had consistently refused
to invoke the self-judging clause in bad faith in earlier
practice.667Truly the United States would have been hard-
pressed to contend that the mining of Nicaraguan ports were
somehow a matter ‘within the domestic jurisdiction of the
United States.’668Among those States which maintain a
reservation concerning domestic jurisdiction, these tend to be
phrased not in the self-judging terms of the Connally
Reservation but rather in terms similar to Romania’s June 2015
declaration, which appropriately defines the scope of domestic
law according to international law (and thus acknowledges the
Court’s competence to determine this issue).
Turning to the Vandenberg Reservation in State practice,
the Court’s resort to normatively identical customary law in
Nicaragua v. United States has unsurprisingly resulted in this form of
reservation failing to gain popularity. Prior to the Court’s 1984
Judgment, six States maintained such a reservation. 669Since
the Court’s decision, only Djibouti has filed a declaration
including this provision.670The futility of this practice was
666See note appended by the Registry of the Court to
Declaration of Nicaragua (24 September 1929) and
Reservation of Nicaragua (24 October 2001) (available at
www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3&code=NI),
referring to a 9 January 2002 communication transmitted from
Costa Rica to the UN Secretary-General.
667See Alexandrov (2001), p. 116.
669These States are El Salvador, India, Malta, Pakistan, the
Philippines, and the United States. See Alexandrov ( 2001), pp.
119-121.
670“Declaration of 2 September 2005 (available at www.icj-
cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3&code=DJ).
246 B. McGarry
suggested in Nicaragua v. United States, clarified in Aerial Incident of 10

August 1999, and elaborated upon by scholars who argue that the
reservation only gives rise to the uncertainty of identifying
customary law.671
5 Unresolved and Emerging Questions
While the merits of Nicaragua v. United States confirmed the

existence of peremptory norms in international law672—and
while the geopolitics of the dispute repositioned the Court after
two decades in the shadow of South West Africa673— it may be the
case’s treatment of the Optional Clause which has had the
broadest influence, affecting a wide range of cases and untold
debates within ministries regarding the acceptance,
modification, or withdrawal of compulsory jurisdiction. These
impacts continue to be felt in ways yet unseen, due both to
the ripple effect of Nicaragua v. United States on jurisprudence and
State practice and to Nicaragua’s continued role as a creative
force in cases before the Court.
In this context, the most resilient conceptual question which
remains from Nicaragua v. United States is the extent to which the
Court’s future case law will adhere to its oft-cited unilateralist
dictum on Optional Clause declarations, or rather to the treaty
analogy with which it actually resolved matters. Whereas the
Court in Nuclear Tests construed good faith as a principle broadly
applicable to ‘the creation and performance of legal
obligations, whatever their source,’674it inverted this logic in
Nicaragua v. United States by first recalling the applicability of good
faith, and then deducing ‘from the requirements of good faith
that [declarations] should be treated, by analogy, according to
the law of treaties.’675Taken literally, the Court would appear to
have considered treaty analogies relevant to all legal
obligations giving rise to good faith—a more sweeping
671See Damrosch (1987), p. 396.

672For links between reservations to jurisdiction and the
Court’s treatment of jus cogens in Nicaragua v. United States, see
Verhoeven (1998). See further Orrego Vicuña (2002), p. 465.
673 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, ICJ
Reports 1966, p. 6.
674Nuclear Tests (Judgment), supra n. 20, p. 268, para 46.
para 63.
statement than it likely intended.676By basing its deduction on
the treatment in Nuclear Tests of declarations of a more general
and independent nature, the Court missed an opportunity to
clearly tether the treaty law analogy to the specific
characteristics of the Optional Clause system. Moreover, the
Court applied this analogy selectively, expressly incorporating
the principle of good faith but not the interpretative rules of
Articles 31 and 32 of the Vienna Convention. Thus the Court’s
‘rather unfortunate’ use of the treaty law analogy (in the words
of Professor Kooijmans) manages the feat of being both overly
broad and underutilized.677
While Professor Thirlway has expressed doubt as to the
validity of the many reservations deposited in the wake of
Nicaragua v. United States that explicitly declare a right of
immediate withdrawal,678other scholars have implied the oppo-
site conclusion.679The Court’s resolution of jurisdiction on other
grounds in Border and Transborder Armed Actions also left unresolved
whether the principle of good faith requires ‘reasonable’ notice
for withdrawal of declarations which are silent as to notice
periods. Since the Court had suggested in dicta in Nicaragua v.
United States that it was inclined to affirm this conclusion, the
most important question in this context is whether the Court
would also adopt Nicaragua’s argument in Border
676Cf. the views of Judge Nieto-Navia of the Appeals Chamber

for the International Criminal Tribunals for the former
Yugoslavia and Rwanda (2001), pp. 12-13 (considering the
‘fulfillment in good faith of international obligations’ as a non-
derogable ‘norm of general interest to the international
community as a whole’, without express analogy to the law of
treaties).
677See Kooijmans (1986), p. 77.
678See Thirlway (2015), p. 1701.
679See Tomuschat (2012), p. 88. For a further distinction, see
Kolb (2007), pp. 875 and 888-889.
248 B. McGarry
and Transborder Armed Actionsthat the 12-month default provision of
Article 56 (2) of the Vienna Convention is an appropriate
standard to apply to Optional Clause declarations which are
silent as to notice.680As the ICJ has not declared that this
provision of the Vienna Convention reflects custom, this
approach may require it to find the Convention directly
applicable to these declarations (as pronounced by the Inter-
American Court),681and step definitively away from its repeated
characterization of declarations as facultative and unilateral.
As regards the validity of self-judging provisions such as the
Connally Reservation, it is worth considering that the question
might have been resolved in Nicaragua v. United States had the
United States refused to participate in the proceedings from
their inception. While a reservation to a declaration may be
impliedly waived by a party’s failure to raise it682—and while
reservations thus do not necessarily enter into the Court’s
proprio motu analysis of its jurisdiction —this presumes that
683
the party is participating in the proceedings. In the event of a

non-appearing Respondent, Article 53(2) of the Court’s Statute
requires, inter alia, that the Court satisfy itself of its jurisdiction
according to Article 36. This raises the question as to whether
the Court can infer the waiver of an Optional Clause
reservation by virtue of a Respondent’s non-appearance. In
the example of the Connally Reservation, the text of the 1946
Declaration would appear to suggest otherwise, as its
reservations are immediately preceded in the chapeau by the
objective phrase ‘this declaration shall not apply to
[...].’684Thus the Court in Nicaragua v. United States would likely
have addressed the Connally Reservation in the event of the
United States’ non-appearance during the jurisdictional phase,
680See Torber (2015), p. 299; see Border and Transborder Armed Actions,
Counter-Memorial of Nicaragua, supra n. 27, para 96.
681See Constitutional Court v. Peru, supra n. 137, para 52. See further
Torber (2015), p. 310.
682 Nicaragua v. United States (Merits), supra n. 54, pp. 32-34, paras
110
45-46.
173
This conclusion is supported as well by the Court’s thorough
683On the Court’s duty to satisfy itself that it has jurisdiction,
treatment of the
see ICAO Council Vandenberg
(Judgment), supra n. 15, pp. 52-61, paras 13-26.
6841946 Declaration,
Reservation in its Judgment p. 140.on the Merits, after the United
States had ceased participating in the
proceedings.
rather than considering it waived by virtue of its exclusion
from the United States’ preliminary objections.173While the
validity of the Connally Reservation is relevant today regarding
very few States, severability of reservations from declarations
is an issue of broader application which the Court has thus far
sidestepped, and which—in view of the foregoing analysis—it
may be compelled to resolve in the
250 B. McGarry
event of a fully non-participating Respondent to a case

instituted on the sole basis of the Optional Clause. 685
Finally, the question has been repeatedly raised as to
whether a decision taken by a court or tribunal on the basis of
a compromis is more ‘legitimate’ than one in which jurisdiction
derives from a rule of compulsory jurisdiction, such as the
Optional Clause.686687While formal objections during case
proceedings do not necessarily suggest the particular
perception of legitimacy that will attach to the eventual
685On the notion of a ‘fully’ non-participating Respondent,

consider two recent decisions administered by the Permanent
Court of Arbitration: see The Arctic Sunrise Arbitration (Netherlands v. Russia),
PCA Case No. 2014-2, Procedural Order No. 4 (Bifurcation), 21
November 2014 (hereinafter ‘Arctic Sunrise’), p. 3 (treating a Note
Verbale sent from Russia to the PCA asserting the State’s non-
participation as a ‘plea concerning the Arbitral Tribunal’s
jurisdiction’) and The South China Sea Arbitration (Philippines v. China), PCA Case
No. 2013-19, Award on Jurisdiction and Admissibility, 29
October 2015 (hereinafter ‘Philippines v. China’), pp. 11-12 (treating
a Position Paper publicized by China and certain
communications to the PCA asserting the State's non-
participation as ‘constituting, in effect, a plea concerning
jurisdiction’).
686See Treves (2008), p. 172; Bodansky (2008), pp. 309 et seq. See
also Fitzmaurice (1958), p. 88 (‘[N]othing undermines
confidence in the process of international adjudication so
quickly and completely as the feeling that international
tribunals may assume jurisdiction in cases not really covered
by the intended scope of the consents given by the parties').
Judgment, the spectre of non-compliance would appear to
loom largest in cases initiated unilaterally, such as Nicaragua v.
United States.116
6 Nicaragua and the ‘Dream’ of Compulsory Jurisdiction
Nicaraguav. United States and the subsequent Nicaraguan cases

have coincided with States’ growing participation in the
Optional Clause system. This is reflected in the institution of
more cases on this basis (thereby obtaining the benefits
reaped by Nicaragua in that first instance), with greater use of
carefully customized reservations and conditions (thereby
avoiding the pitfalls of the United States and other
Respondents). In this sense, a sharp distinction is evident
between the freedom of the Optional Clause system and the
highly restrictive approach to reservations found in multilateral
treaties which provide for the unilateral submission of disputes
through compromissory clauses (notably UNCLOS).688
Collective reform efforts to improve participation in the
Optional Clause system since Nicaragua v. United States have not
led significant lives. The Non-Aligned Movement, for example,
adopted a declaration in 1989 calling upon the UN General
Assembly to sustain a decade-long quest to develop Optional
Clause practice. Nicaragua was among the most vocal
688 Cf. UNCLOS Articles 287(1)/(5) and 309. Nicaragua’s 3

111
May 2000 declaration upon ratification of UNCLOS appears to

take liberties with this restrictive approach to reservations, as
it ‘accepts only recourse to the International Court of Justice
as a means for the settlement of disputes’, to the implied
exclusion of other fora. Conversely, the declaration’s
subsequent statement—that Nicaragua consents to the Court
as the only forum for disputes falling under Article 298(1)’s
enumerated subject-matter exceptions—is facially valid, as that
Article provides that a State may ‘declare in writing that it does
not accept any one or more of the procedures’ available for
dispute settlement.
252 B. McGarry
advocates within the Non-Aligned Movement for the

establishment of this ‘Decade of International Law’ initiative.
Yet the Movement could not agree internally upon a
recommendation regarding the Court’s compulsory jurisdiction,
thus demonstrating that jurisdictional sovereignty is not a
concern exclusive to a few powerful States.689More recently,
Switzerland and the Netherlands collaborated with the UN
Office of Legal Affairs to produce a comprehensive legal guide
for States wishing to file Optional Clause declara-
tions.690Further, some recent Members of the Court have
suggested that contemporary Optional Clause declarations are
prevalent enough to put to rest—and not so tightly
circumscribed to awaken—calls for systemic reform.691Judge
Simma has observed in this regard that States are generally
less reluctant towards compulsory jurisdiction in the years
since Nicaragua v. United States than in the earlier days of the
Court.692
As the arguments and pronouncements in its litigation
before the Court have helped to propel the trend towards
comprehensive participation and bespoke protections,
Nicaragua has championed a more productive alternative to
the unrealized ‘dream’ of universal compulsory jurisdiction. The
breadth of Nicaragua’s own declaration reflects its strategic
interests thus far, as borne out in its prolific practice before the
Court. This approach cannot be expected of other States,
which may deposit reservations to attain the same tactical end
through different means. Nor can a declaration be expected to
reflect any State’s interests in perpetuity, as Nicaragua’s 2001
amendment makes clear. The accommodation of such
flexibility within the Optional Clause system, as stated in dicta
in Nicaragua v. United States, stands in clear relief to the prior
689See Kebbon (1989), pp. 278-279.
690Annex to the Letter dated 24 July 2014 from the
Permanent Representative of Switzerland to the United Nations
addressed to the Secretary-General (Handbook on accepting
the jurisdiction of the International Court of Justice: model
clauses and templates, UN Doc. A/68/963, 19 August 2014).
691Simma (2009), p. 457.
692See ibid., p. 456.
decades of reluctance to the premise of a true
‘World Court’. To paraphrase Joyce, that history is not a
dream, but a nightmare from which the reform of international
adjudication is trying to awake.182
In conclusion, the Nicaraguan cases have fostered creative
participation among a diverse range of States, invigorating and
legitimizing the Optional Clause system beyond both its earlier
expressions and what might reasonably be expected within a
more rigid construct. While some in the international legal
community may wait patiently for the classical ‘dream’ to
materialize, Nicaragua’s practice before the Court has made
productive use of our collective insomnia.
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Brian McGarry is
a Lecturer at the Geneva LLM in International
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Faculty of Law). He has counselled governments,
intergovernmental organisations, tribunals, and parties in
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a PhD from the University of Geneva in 2017 for his submitted
thesis on third-party intervention before the ICJ.
Part V
Substantive Issues in the Nicaraguan Cases
Nicaragua in the International Court of Justice
and the Law of Treaties
Antonios Tzanakopoulos and Anna Ventouratou
Abstract Thischapter assesses the impact of the ‘Nicaraguan’

cases, i.e. cases in which Nicaragua has been involved before
the International Court of Justice, on the law of treaties. It
focuses on two main aspects: the first is the relationship
between various principles and (or) maxims of interpretation
and the customary rules of interpretation reflected in Articles
31-33 of the Vienna Convention on the Law of Treaties. The
second is the relationship between treaty and customary law,
considered against the background of the quintessential
Nicaraguan case, the Military and Paramilitary Activities in and against
Nicaragua.
Contents
1 Introduction.................................................................................................................................... 216
2 Treaty Interpretation....................................................................................................................... 217
2.1 The Effect of the Passage of Time: Intertemporal v. Evolutionary Treaty
Interpretation........................................................................................................................ 218
2.2 The In Dubio Mitius Principle: State Sovereignty and Treaty Interpretation................... 223
2.3 The Principle of Effectiveness:Application and Limits....................................................... 228
2.4 On Elements of the General Rule in Article 31 VCLT..................................................... 231
2.5 Conclusion on Interpretation............................................................................................... 235
3 The Interplay Between Treaty andCustomary Law................................................................. 236
4 Conclusion...................................................................................................................................... 243
References ......................................................................................................................................... 244
We are indebted to Professor Christian J Tams for comments

on earlier drafts. The usual disclaimer applies.
A. Tzanakopoulos (*)
Faculty of Law, St Anne’s College, University
of Oxford, Oxford, UK e-mail:
antonios.tzanakopoulos@law.ox.ac.uk
A. Ventouratou
Wadham College, University of Oxford, Oxford, UK
Athens Public International Law Research 2
Centre, Athens, Greece e-mail: 1
5
anna.ventouratou@law.ox.ac.uk
9_9
2
1
6
217 A. Tzanakopoulos and A. Ventouratou
1 Introduction
Nicaragua is to be credited with bringing before the

International Court of Justice (‘ICJ’ or ‘the Court’) one of its
best-known cases—the case commonly referred to among
students, scholars, and practitioners as the Nicaragua case.693Not
only did that case result in one of the most important sets of
judgments ever rendered by the ICJ on numerous issues—a
set of judgments which haunts international law students to
this day—but it also revived confidence in the Court after the
debacle of the South West Africa cases in the 1960s694and the
consequent disavowal of the Court by developing States. 695This
is, however, not the sole contribution of Nicaragua to the
International Court of Justice. It has brought many cases
before the Court, and has also been brought before it as a
respondent, though far less frequently. Many of the ICJ
judgments in cases involving Nicaragua are loci classici on a
number of fundamental international law issues, and the
present collection attests to this great legacy.
Against the background of such legacy, this chapter reviews
the impact of Nicaragua’s presence in the ICJ with respect to
the law of treaties. The topic of treaty law is obviously very
broad, and so we have decided to focus on two specific issues,
one of which sits rather on the boundary between treaty and
customary law. Section 2reviews the approach of the Court to
treaty interpretation in the ‘Nicaraguan’ cases, and argues that
the Court has squarely positioned various maxims and
principles not explicitly referred to in the relevant VCLT
provisions on interpretation within these provisions. Section
693 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
United States (Jurisdiction)'); Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14 (hereinafter
694‘Nicaragua v. United States (Merits)’).
6952South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, ICJ
Reports 1966, p. 6 (hereinafter ‘South West Africa, Second Phase’). By the casting vote of the President,
the ICJ denied standing to Ethiopia and Liberia in the instance, which led to the United Nations
stepping in and which culminated in the request for an Advisory Opinion in Legal Consequences for
3
A brief
States
look at the docket of the Court during the relevant
of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16 (hereinafter
period confirms the point. See also
‘Namibia’).
contribution by Pellet A in this volume.
3then discusses the relationship between treaty and custom,
which played a crucial role in the quintessential ‘Nicaraguan’
case, the Military and Paramilitary Activities in and against Nicaragua.
Nicaragua in the International Court of Justice and the Law of
2Treaties
Treaty Interpretation 219
General as the rule of interpretation in Article 31 of the Vienna

Convention on the Law of Treaties may be, it does leave a
number of issues unaddressed, and these fall to be determined
and clarified in the practice of States and international courts.
Many principles traditionally resorted to by interpreters, in
particular in domestic law but also in international practice
predating the VCLT,4have found no special place in the
Convention’s provisions on interpretation, and a question that
arises is what, if any, is their continued relevance in the
process of treaty interpretation.5
The Court has consistently reaffirmed the customary
character of the provisions of Articles 31 to 33 VCLT, 6including
in those cases before it that involved Nicaragua as a party or
intervener.7These latter cases, among others, have established
the traditional Vienna tools as the single universally accepted
set of rules for the purposes of interpretation, especially if we
consider that Nicaragua itself is not a party to the VCLT. The
findings of the Court in Military and Paramilitary Activities in and against
Nicaragua,8Navigational and Related Rights,9and Land, Island and Maritime
Frontier Dispute10 made a significant contribution in this regard. In
fact, Military and Paramilitary Activities is one of the first cases where
the Court used the method and the substance of the rules
codified in the VCLT,11if implicitly, whereas Land, Island and Maritime
696697
is one of the first ‘textually oriented recognitions’ of the

Frontier12
Vienna rules by the Court.698699The Court made important
pronouncements on, among others, the quest for a term’s
ordinary meaning and a treaty’s object and purpose, on the
use of context, on the importance of the parties’ intentions,
and so forth. Undoubtedly, the cases have generally influenced
the understanding and application of the traditional Vienna
rules on treaty interpretation. In what follows, the Court’s
6964The ILC ‘confined itself to trying to isolate and codify the

comparatively few general principles which appear to
constitute general rules for the interpretation of treaties’ and
therefore Articles 31 and 32 VCLT do not constitute an
exhaustive list of interpretative principles to be used by
international tribunals: see paragraph 1 of the commentary to
draft Articles 27-28 on the Law of Treaties, YbILC 1966, Vol. II, p.
218. Principles outside the express terms of the VCLT, to
which international tribunals have had recourse are, for
example, those of effectiveness (effet utile), restrictive
interpretation (in dubio pro mitius), verba ambigua accipiuntur contra proferentem, expressio
unius
5
est exclusio alterius, and so forth. See also Gardiner (2010), p. 51.
See Dorr and Schmalenbach (2012), p. 538 and Sbolci (2011).
6
See for example Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, ICJ Reports
1991, pp. 69-70, para 48 (hereinafter ‘Arbitral Award of 31 July 1989 (Judgment)’); Territorial Dispute
(Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994, p. 21, para
697 (hereinafter ‘Libya/Chad (Judgment)’); Oil Platforms (Islamic Republic of Iran v. United States of
America), Preliminary Objection, Judgment, ICJ Reports 1996, p. 812, para 23 (hereinafter ‘Oil
Platforms (Jurisdiction)’).
7
See most recently Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia), Preliminary Objections, Judgment, ICJ Reports 2016, para 35 (hereinafter
‘Alleged
8 Violations (Jurisdiction)’).
Supra n. 1.
9
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, ICJ Reports
2009, p. 213 (hereinafter ‘Navigational and Related Rights (Judgment)’).
10
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening),
Judgment, ICJ Reports 1992, p. 351 (hereinafter ‘El Salvador/Honduras (Merits)’).
n
See for example Nicaragua v. United States (Merits), supra n. 1, pp. 136
ff, paras 272ff referring to the object and purpose of a treaty
and the ordinary meaning of its terms.
698El Salvador/Honduras (Merits), supra n. 10, pp. 582-583, para 373.
Treaties 221
clarifications on elements of the general rule are taken up
(Sect. 2.4), but not before discussing what we see as the main
contribution of the ICJ on treaty interpretation in the
Nicaragua cases, namely the role of principles traditionally
referred to in interpretation, including treaty interpretation, but
which have found no explicit place in the text of the relevant
VCLT provisions. Sections 2.1-2.3 discuss, respectively,
intertemporal and evolutionary interpretation; the maxim of in
dubio mitius or principle of ‘restrictive interpretation’; and the
principle of effectiveness.
2.1 The Effect of the Passage of Time: Intertemporal v.

Evolutionary Treaty Interpretation
The case of Navigational and Related Rights between Costa Rica and
Nicaragua is considered a landmark case on the effect of the
passage of time on the interpretation of treaties. 700The issue
was examined by reference to the interpretation of the term
‘objetos de comercio’ (‘objects of commerce') appearing in Article VI
of the 1858 Treaty between Costa Rica and Nicaragua. In a
nutshell, Nicaragua argued that the word should be read
restrictively by reference to the circumstances prevailing back
in 1858 (i.e. at the time of treaty conclusion) when ‘commerce’
meant only trade in goods and not trade in services, trade in
services being a relatively recent development in the field of
international trade.701On the other hand, Costa Rica was
naturally aiming for an expansive reading of the term so as to
include the transport of passengers.702The parties’ arguments
offered the Court an opportunity to examine and to comment
on whether the terms of a treaty provision should be given a
static, contemporaneous interpretation, based solely on the
parties’ understanding at the time of treaty conclusion or
whether a dynamic, evolutionary interpretation should be
700See e.g. Dawidowicz (2011).

701See Navigational and Related Rights (Judgment), supra n. 9, p. 240, para
58.
702Ibid., p. 241, para 59.
preferred.
Debate on the issue of intertemporal law has, in fact, a long
history, dating well before the case of Navigational and Related Rights.
The most widely known and cited dictum on the matter comes
from the Island of Palmas case in 1928, where
Treaties 223
Arbitrator Huber held that ‘a juridical fact must be appreciated
in the light of the law contemporary with it, and not of the law
in force at the time when a dispute in regard to it arises or
falls to be settled’.703Huber’s dictum was formulated in the
specific context of establishing and maintaining territorial title
and was agreed upon by both parties to the dispute. However,
as Judge Higgins characteristically stated, ‘ [the dictum] has
been read in the most remarkably extensive fashion, as
providing obligatory rules in circumstances that it never
addressed, with consequences that it never intended’. 704And
indeed it has, arguably even by the ICJ, if only implicitly: in
Right of Passage the ICJ held that the validity of a treaty should be
considered in light of the rules applicable during its conclusion
rather than rules that emerged
later on.705
Perceived as a general rule advocating for contemporaneous
treaty interpretation, the Island of Palmas dictum is often used as the
starting point of academic debate on the issue.706The
arguments advocating for evolutionary interpretation, in
contrast to the alleged ‘general rule’, arose initially in the field
of human rights. Most characteristic in this respect are the
dissenting opinion of Judge Tanaka in South West Africa,
advocating for the retroactive effect of a new understanding
on a treaty term,707and the famous dictum of the European Court
of Human Rights in the Tyrer case, referring for the first time to
the European Convention as ‘a living instrument which must be
interpreted in the light of present-day conditions’. 708709The gist
70311 Island of Palmas case (Netherlands, USA), Award of 4 April 1928, RIAA, Vol. II, p. 845.
704Higgins (2009), p. 868.
705See Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, ICJ Reports 1960,
p. 31.
706On evolutionary v. static interpretation, see Elias (1980);
Gardiner (2010), p. 252; Dupuy (2011), p. 128; Merkouris (2014), p.
128.
707 South West Africa, Second Phase, supra n. 2, dissenting opinion of Judge
Tanaka, p. 294. Judge
Tyrer v. UK, ECHR
708Tanaka
22
goes Application
as far as to No. 5856/12,
suggest Judgment, 25 April
that developments in the
1918,of26
field publ Court
human rights A, ledp.to16,the
para 31.
of these arguments is that a particular type of treaty should be
subject to dynamic interpretation. That is, certain treaties
should be subject to special treatment, derogating from the
alleged general rule requiring contemporaneous interpretation.
This is arguably due to the importance of their subject matter,
as is the case for example with human rights treaties, though
it is rather mysterious on the basis of what criteria ‘importance’
of subject matter may be determined. As we argue below, it is
not the case that ‘importance’ of subject matter determines
the
Treaties 225
selection between static, contemporaneous interpretation and
dynamic, evolutionary interpretation.
The ICJ has in many instances upheld the contemporaneous
interpretation of treaty terms, as for example in Rights of Nationals
of the United States of America in 'Morocco23and in Kasikili/Sedudu
Island.24However, in the Aegean Sea Continental Shelf case the Court
took a different approach on the matter. In interpreting a
treaty reservation, the Court found that the meaning of the
term ‘the territorial status of Greece [ . . . ] was intended to follow
the evolution of the law and to correspond with the meaning
attached to the expression by the law in force at any given
time.’25The issue also arose in Navigational and Related Rights where
the Court ultimately rejected the intertemporal doctrine in
international law as a blanket rule of treaty interpretation,
adopting expressis verbis the evolutionary interpretation of treaty
terms. However, the Court qualified the application of such
dynamic interpretation as contingent upon the specific
circumstances of the case. These circumstances relate to the
intention of the parties at the time of conclusion of the treaty. 26
The ICJ in fact begins by emphasising the importance of the
parties’ common intention, which should in any event be taken
into account as the key element for the purposes of
interpretation. This is in line with the underlying principle
pervading the rules on treaty interpretation and the law of
treaties in general. As the International Law Commission has
tritely observed, ‘treaties are embodiments of 710711 the
71023See Rights of nationals of the United States of America in Morocco (France v. United States of
America), Judgment ICJ Reports 1952, p. 189 (hereinafter ‘United States nationals in Morocco
(Judgment)’) on the interpretation of the term ‘dispute’ in the context of 1936 Treaty between Morocco
and the United States.
24
See Kasikili/Sedudu Island (Botswana/Namibia), Judgment, ICJ Reports 1999, p. 1062, para
711 with respect to the meaning of ‘centre of the main
channel’ and ‘thalweg’ in an Anglo-German Agreement of 1890,
where the Court upheld the meaning of the terms as it was at
the time of treaty conclusion.
25
Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, ICJ Reports 1978, p. 32, para 77
(hereinafter ‘Aegean Sea Continental Shelf (Judgment)’).
26
The Court’s judgment did not come out of the blue. The
question of the effect of the passage of time on treaty
common will of their parties’.27However, as clearly stated by the
Court in Navigational and Related Rights, ‘this does not signify that,
where a term’s meaning is no longer the same as it was at the
date of conclusion, no account should ever be taken of its
meaning at the time when the treaty is to be interpreted for
purposes of applying it’.28The key question is whether the
parties intended a particular term to be frozen in time or be
approached dynamically, and how to determine that intent.
In Navigational and Related Rights, the Court set out two distinct
interpretation had already been discussed, for example, within

the International Law Commission where there was support for
both the principle of contemporaneity and the evolutive
approach. It seems that at the end of the day the conclusion
was that the interpreter should resolve this matter through the
application of ordinary methods of treaty interpretation and
taking into account whether the treaty itself conveys an
answer. See for example Report of the International Law
Commission on the work of its fifty-seventh session (2005),
A/60/10, p. 220, para 479 and Report of the International Law
Commission on the work of its fifty-eighth session (2006), UN
Doc. A/61/10, p. 415, para 22. The same approach was
approved by the Institut de droit international at Wiesbaden in
1975 in its resolution on the ‘Intertemporal Problem in
International Law’. Although the resolution takes the Huber
dictum in Island of Palmas as a starting point, it reaches the following
conclusion, of which the finding in the Navigational and Related Rights is
reminiscent: ‘Wherever a provision of a treaty refers to a legal
or other concept without defining it, it is appropriate to have
recourse to the usual methods of interpretation in order to
determine whether the concept concerned is to be interpreted
as understood at the time when the provision was drawn up or
as understood at the time of its application’ (56 AIDI 536, para
4).
27
ILC Draft Conclusions on Subsequent Agreements and
Subsequent Practice in Relation to the Interpretation of
Treaties, Report of the International Law Commission on the
Treaties 227
situations where a treaty term should be interpreted in a
manner that departs from the meaning ascribed to it at the
time of treaty conclusion. First where the subsequent practice
of the parties within the meaning of Article 31(3)(b) VCLT
indicates departure from the original intent.29Second where the
original intent of the parties at the time of conclusion of the
treaty ‘was, or may be presumed to have been, to give the
terms used—or some of them—a meaning or content capable
of evolving, not one fixed once and for all, so as to make
allowance for, among other things, developments in
international law’.30The Court confirmed that the aim of treaty
interpretation is to ascertain ‘the intentions of its authors as
reflected by the text of the treaty and the other relevant
factors in terms of interpretation’.31The application of the
various rules of interpretation is indeed meant to shed light on
these intentions, rather than the latter being a separate factor
for the purposes of interpretation.32The parties’ intentions
should not be viewed merely as the understanding of the
parties at the time of treaty conclusion but rather as the true
will of the parties, which is to be ascertained through the
general rule of interpretation reflected in Article 31 VCLT. 33This
is in line with ICJ jurisprudence where evolutionary
work of its sixty- fifth session (2013), UN Doc. A/68/10, p. 23

(hereinafter ‘2013 ILC Report’).
interpretation 712713714715716717718
712Navigational and Related Rights (Judgment), supra n. 9, p. 242, para 64.

71329On the issue of whether subsequent conduct can be used
as an argument to support or limit an evolving understanding
of a30treaty see Nolte (2013), pp. 184 ff.
714 Navigational and Related Rights (Judgment), supra n. 9, p. 242, para
64.
715Ibid., p. 237, para 48.
71632See 2013 ILC Report, supra n. 27, p. 27: ‘The “presumed
intention” is thus not a separately
717identifiable original will [...] And although interpretation
must seek to identify the intention of the parties, this must be
done by the interpreter on the basis of the means of
interpretation which are available at the time of the act of
interpretation’.
71833See also the ILC commentary to Article 13 of the Articles
on State Responsibility: ‘One possible qualification concerns
the progressive interpretation of obligations [...] But the
intertemporal principle does not entail that treaty provisions
are to be interpreted as if frozen in time. The evolutionary
interpretation of treaty provisions is permitted in certain cases
but this has nothing to do with the principle that a State can
only be held responsible for breach of an obligation which was
in force for that State at the time of its conduct’ ( YbILC 2001, Vol.
II, Part Two, p. 59. See also Crawford (2013), pp. 246 ff.
was adopted because the Court considered that this was what
the parties had intended.34
In its analysis the Court specifically recalled the Aegean Sea
Continental Shelf case from among those predating Navigational and
719
Related Rights which had dealt with the issue of contemporaneous

versus dynamic interpretation. The Court concluded by
formulating what can be seen as a general rule on the issue of
intertemporal interpretation: ‘where the parties have used
generic terms in a treaty, the parties necessarily having been
aware that the meaning of the terms was likely to evolve over
time, and where the treaty has been entered into for a very
long period or is “of continuing duration”, the parties must be
presumed, as a general rule, to have intended those terms to
have an evolving meaning’.720
71934In Namibia, supra n. 2, p. 31, para 53, the Court referred to

‘the primary necessity of interpreting an instrument in
accordance with the intentions of the parties’, and used this as
its grounds for adopting an evolutionary approach to the
interpretation of the concepts contained in Article 22 of the
Covenant of the League of Nations. See also Aegean Sea Continental
Shelf, supra n. 25, p. 32; Gabcikovo-Nagymaros Project (Hungary/Slovakia),
Judgment, ICJ Reports 1997, p. 79, para 142; Navigational and Related Rights
(Judgment), supra n. 9, p. 242, para 65; Pulp Mills on the River Uruguay
(Argentina
35
v. Uruguay), Judgment, ICJ Reports 2010, pp. 82-83, para 204.
Navigational and Related Rights (Judgment), supra n. 9, p. 242, para 65.
720Ibid., p. 242, para 66. Indeed, this is very close to the
position previously taken by the ILC. In the Report on the
Fragmentation of International Law, the study group
suggested that ‘ [t]he starting point must be [...] the fact that
deciding this issue is a matter of interpreting the treaty itself.
Does the language used give any indication? The starting-point
of the argument might plausibly be the “principle of
contemporaneity” - with regard to the normative environment
as it existed at the moment when the obligation entered into
force for a relevant party. When might the treaty language
itself, in its context, provide for the taking account of future
Ibid., para
developments? Examples of when this might be a reasonable
38
130.
This position can be seen as in line with the case-law of
other international dispute settlement bodies, most notably the
WTO Appellate Body (‘AB’). In US-Shrimp, the Appellate Body
found that the term ‘exhaustible natural resources’ in Article
XX(g) GATT must be read in the light of contemporary
concerns of the parties about the protection and conservation
of the environment. This finding was substantiated by
reference to the preamble of the WTO Agreement, which
indicates the intention of the parties to ascribe great weight to
environmental protection as a goal of national and
international policy.721Citing the Namibia and the Aegean Sea
Continental Shelf cases, the AB reached the conclusion that ‘the
generic term “natural resources” in Article XX(g) is not “static”
in its content or reference but is rather “by definition,
evolutionary”’.722
assumption include at least: (a) Use of a term in the treaty

which is “not static but evolutionary”. [...] (b) The description
of obligations in very general terms, thus operating a kind of
renvoi to the state of the law at the time of its application’,
Report of the Study Group of the ILC, Fragmentation of
International Law: Difficulties Arising from the Diversification
and Expansion of International Law (finalized by M
Koskenniemi, UN Doc. A/CN.4/L.682, 13 April 2006), para 478.
721United
41
States
Territorial - Import
Jurisdiction ofProhibition of Certain
the International Shrimpofand
Commission Shrimp
the River Products,
Oder, WTO
Judgment, Appellate
1929,
722Body Report,
PCIJ Series A, No. 12 October 1998, WT/DS58/AB/R, paras 128
23, p. 26.
ff.
Treaties 231
The dictum of the ICJ on intertemporal interpretation in
Navigational and Related Rights should be seen as having clarified the
position, and as dealing with the issue squarely within the
framework of the general rule of interpretation of the VCLT.
But the position is not without its critics, as evidenced by the
separate opinions of Judges of the Court on the matter. Judge
Skotnikov argued that the Court’s finding that the term
‘commerce’ should be interpreted in accordance with its
present-day meaning is ‘extraneous to interpretation of the
Treaty per se’.723He further argued that ‘neither the generic
nature of the term “commerce” nor the unlimited duration of
the Treaty and the perpetuity of the legal regime established by
it excludes the possibility that the Parties’ intention was to
grant Costa Rica navigational rights determined by the content
of the notion “commerce” as it existed when the Treaty was
concluded’.724Skotnikov also criticised the judgment for
upholding the single case where such an approach had been
preferred, i.e. the Aegean Sea case, while disregarding the
multitude of cases that rejected it.725Judge ad hoc Guillaume also
criticised the reasoning of the majority, although he did reach
the same conclusion as the Court on the basis of the term's
ordinary
meaning.726
Reasonable people may indeed differ on the application of
the intertemporal rule (or principle) of treaty interpretation
elaborated by the Court in Navigational and Related Rights to the
treaty in question in that case. But the rule (or principle) itself
is rather beyond reproach, being flexible and squarely
positioned within the context of the general rule of
interpretation of Article 31 VCLT. That this flexibility may cause
uncertainty and disagreement is rather an overarching
723See Navigational and Related Rights (Judgment), supra n. 9, Separate

Opinion of Judge Skotnikov, p. 284, paras 5-6.
724Ibid.
725Ibid.
726See ibid., Declaration of Judge ad hoc Guillaume, pp. 294 ff,
paras 9 ff.
characteristic of all rules and principles of treaty interpretation.
2.2 The In Dubio Mitius Principle: State Sovereignty

and Treaty Interpretation
The Court in the Navigational and Related Rights also took up the in
dubio mitius principle (sometimes also referred to as in dubio pro
mitiore or pro libertate). This ‘restrictive interpretation’ principle may
be used in treaty interpretation in deference to the sovereignty
of states. For a long time it was considered, or at least it was
argued, that treaty interpretation should be geared towards
upholding the sovereignty of the States parties to any given
treaty727in accordance with the general,
41
Territorial Jurisdiction of the International Commission of the River Oder, Judgment, 1929,
, p. 26.
PCIJ Series A, No. 23
727See Bernhardt (1995), p. 1419.
Treaties 233
traditional presumption in favour of sovereignty.728The principle
provides that in cases where the meaning of a term is
ambiguous, that interpretation is to be preferred which is less
onerous and restrictive with respect to the party assuming an
obligation, as it is this interpretation that interferes less with its
sovereignty.729The principle can be traced back to SS ‘Wimbledon ’,
and PCIJ jurisprudence can be seen as having consistently
embraced it in order to resolve ambiguities in the language of
a provision.730However, it was evident already back then that
the principle was to be approached with caution and perhaps
even some suspicion. The PCIJ characteristically found that it
cannot
accept the [...] contention that, the text being doubtful,
the solution should be adopted which imposes the least
restriction on the freedom of States. This argument,
though sound in itself, must be employed only with the
greatest caution. To rely upon it, it is not sufficient that
the purely grammatical analysis of a text should not lead
728‘Lotus’, Judgment, 1927, PCIJ Series A, No. 10, p. 18: ‘Restrictions upon
the independence of States cannot [...] be presumed’.
729See generally Jennings and Watts (1992), p. 1278: ‘The
principle of in dubio mitius applies in interpreting treaties, in
deference to the sovereignty of states. If the meaning of a
term is ambiguous, that meaning is to be preferred which is
less onerous to the party assuming an obligation, or which
interferes less with the territorial and personal supremacy of a
party, or involves less general restrictions upon the parties’.
730See S.S. ‘Wimbledon ’, Judgment, 1923, PCIJ Series A, No. 1, pp. 24-25: ‘the
fact remains that Germany has to submit to an important
limitation of the exercise of the sovereign rights which no one
disputes that she possesses over the Kiel Canal. This fact
constitutes a sufficient reason for therestrictive interpretation, in case of doubt,
of the clause which produces such a limitation. But the Court
feels obliged to stop at the point where the so-called restrictive
interpretation would be contrary to the plain terms of the
article and would destroy what has been clearly granted’
(emphasis added). See also Article 3, Paragraph 2, of the Treaty of Lausanne
(Frontier between Turkey and Iraq), Advisory Opinion, 1925, PCIJ Series B, No. 12, p. 25: ‘if
the wording of a treaty
to definite results; there are many other methods of
interpretation, in particular, reference is properly had to
the principles underlying the matter to which the text
refers; it will be only when, in spite of all pertinent
considerations, the intention of the Parties still remains
doubtful, that that interpretation should be adopted731
which is most favourable to the freedom of States.
731provision is not clear, in choosing between several

admissible interpretations, the one which involves the minimum of
obligations for the parties should be adopted. This principle may be
admitted to be sound. In the present case, however, the
argument is valueless, because, in the Court’s opinion, the wording
of Article 3 is clear’ (emphasis added); Access to, or anchorage in, the Port of Danzig, of
Polish War Vessels, Advisory Opinion, 1931, PCIJ Series A/B, No. 43, p. 142: ‘The fact
that Poland claims special rights and privileges for her war
vessels in the port of Danzig, renders it necessary to find some
juridical basis for the claim. The port of Danzig is not Polish
territory, and therefore the rights claimed by Poland would be
exercised in derogation of the rights of the Free City. Such
rights must therefore be established on a clear basis’ (emphasis
added); Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, PCIJ Series A/B, No.
46, p. 167: ‘In this connection, the Court observes that no such
limitation necessarily ensues from the old provisions relating to
41
the free zones; that in case of doubt a limitation of sovereignty must be construed
PCIJ Series A, No. 23, p. 26.
restrictively’ (emphasis added).
Treaties 235
This caution gradually increased with the passage of time
and, in recent practice, the use of the principle is fairly limited.
The principle is not to be found per se in the letter of the VCLT
provisions on interpretation. In fact, in dubio mitius has been often
characterised as rather obsolete.732733The idealist view on this
is clearly put forward by Tomuschat:
It has become clear that conditions of peace and security in
international society require a
collective effort on the part of all States so that restrictions
on national sovereignty pertain
to the normal picture of international relations and cannot
be termed an unusual
49
exception.
The reality may simply be that it all comes down to whether
and to what extent the parties have limited their sovereignty
by means of a treaty provision. Articles 31 and 32 VCLT guide
the interpreter in establishing the scope of any limitation, and
so no separate reference to the principle is required: its
function has been taken over by the general rule of
interpretation and the provision on supplementary means.
These rules help determine the intention of the parties. As
such, the principle has been subsumed into the VCLT rules of
interpretation. While it made sense to make reference to it
before the VCLT had come into existence, it makes much less
sense to do so now. And yet this does not mean that it has
completely disappeared as an interpretative aid.
Not strangely, perhaps, the most characteristic and
extensive reference to the principle in recent international
adjudication may be found in the field of international
economic law. In EC-Hormones, the WTO Appellate Body rejected
an interpretation of Article 3.1 of the SPS Agreement which
would essentially transform standards, guidelines and
recommendations into binding norms and found that ‘[w]e
cannot lightly assume that sovereign states intended to impose
upon themselves the more onerous, rather than the less
burdensome, obligation by mandating conformity or
732See Fitzmaurice and Merkouris (2010), pp. 195; Dorr and

Schmalenbach (2012), p. 538.
733Tomuschat (1999), p. 171.
compliance with such [non-binding norms]’.734This WTO AB dic-
tum, and the accompanying footnote referring to in dubio mitius as
a principle widely recognised as a ‘supplementary means of
interpretation’,735has been characterised as the ‘resurrection of
the principle’ in international law.736
The ICJ has also hinted in some instances,737including in the
one discussed here, that the principle may indeed be
employed as a supplementary means of
734EC-Measures Concerning Meat and Meat Products (Hormones), WTO Appellate

Body Report, 16 January 1998, WT/DS48/AB/R, para 165.
735See ibid and footnote 154. The footnote recites the
definition from Oppenheim’s International Law, and offers an overview of
the relevant case law and references to academic literature.
736See Fitzmaurice and Merkouris (2010), p. 195.
737Nuclear Tests (New Zealand v. France), Judgment, ICJ Reports 1974, pp. 472-473,
para 47: ‘When States make statements by which their
freedom of action is to be limited, a restrictive interpretation is
41
called for’. In this case, however, the ICJ was interpreting a
PCIJ Series A, No. 23, p. 26.
unilateral act rather than a treaty provision.
interpretation in cases of ambiguity,738setting, however, clear
limitations along the lines of the PCIJ finding in the River Oder
case.739In so doing, the ICJ has highlighted the limited (albeit
not negligible) importance of the principle in contemporary
treaty law.
In Navigational and Related Rights, the ICJ confirmed that ‘it is
certainly true that limitations of the sovereignty of a State over
its territory are not to be presumed’.740However, the Court
interpreted the scope of that rule in a manner far more
restrictive than what Nicaragua had hoped for. Nicaragua
argued that Costa Rica’s right of free navigation under Article
VI of the Treaty of Limits should be interpreted narrowly
because it represented a limitation of Nicaragua’s sovereignty
over the San Juan river. Sovereignty over the river was indeed
the most important right conferred by the very same provision
of the treaty in question, Nicaragua claimed. The Court
rejected Nicaragua’s argument from the outset— before
entering into the substantive analysis of the disputed term’s
interpretation. It observed that an in dubio mitius approach could
not be justified in cases where the very purpose of a provision
was to limit state sovereignty, as was the case with Article VI
of the Treaty of Limits. According to the Court, the principle
does not dictate that a treaty provision limiting a state’s
738Article 32 of the VCLT provides that ‘[r]ecourse may be

had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when
the interpretation according to article 31: (a) leaves the
meaning ambiguous or obscure; or (b) leads to a result which
is manifestly absurd or unreasonable’ (emphasis added). The
word ‘ including’ indicates that the interpreter may have recourse
to supplementary means other than those expressly
mentioned: see Sbolci (2011), p. 158. On this issue see further
below.
58
For then.concept
739See 47 above. of sovereign equality of states and its
implications
740Navigational andsee Art
Related 2(1)
Rights UN Charter
(Judgment), and
supra n. 9, p. 237, para 48.
Fassbender (2012).
sovereign powers is to be interpreted a priori restrictively.
Rather, provisions containing such limitations should be
considered, like any other treaty provision, in light of the
traditional interpretative tools and in accordance with the
state-parties’ common intention; the principle is applicable only
in cases of ambiguity.741
Apart from confirming that the principle of restrictive
interpretation has been subsumed in the VCLT rules on
interpretation, the position of the Court is also important when
seen against the background of the principle of sovereign
equality of states.58In the case at hand, the application of in
dubio mitius in favour of Nicaragua would necessarily involve a
limitation of the sovereign rights of Costa Rica. As the Court
found, ‘[a] simple reading of Article VI shows that the Parties
did not intend to establish any hierarchy as between Nicaragua’s
sovereignty over the river and Costa Rica’s right of free
navigation, characterized as “perpetual”,
74151 Ibid.
Treaties 239
with each of these affirmations counter-balancing the
other’.742Therefore, the judgment was indicative of the
importance of ensuring sovereign equality in the process of
treaty interpretation.743Judges Skotnikov744and Guillaume,745in
their separate opinion and declaration respectively, reaffirmed
the significance of the restrictive approach, and supported, in
principle, a restrictive interpretation of the term in question.
This also served as a key element in their argumentation on
evolutionary interpretation discussed in Sect. 2.1 above: since
limitations on the sovereignty of a State are not to be
742Navigational and Related Rights (Judgment), n. 9, p. 237, para 48
(emphasis added). For a similar approach see The Diversion of Water
from the Meuse, Judgment, 1937, PCIJ Series A/B, No. 70, p. 20, where the PCIJ
found that a treaty provision may not be interpreted so as to
impose a significantly greater burden on one party than on the
other, unless such intention of the parties is manifest: ‘It would
only be possible to agree with the contention of the
Netherlands’ Agent that the Treaty had created a position of
inequality between the contracting Parties if that were expressly
indicated by the terms of the Treaty; but the text of Article 1 is
not sufficient to justify such an interpretation. The text of this
Article is general; it furnishes no evidence of any differentiation
between the two Parties’ (emphasis added).
743See also Kokott (2012).
Opinion of Judge Skotnikov, pp. 283 ff: ‘the restrictive
interpretation in the present case would not be contrary to the
plain terms of Article VI of the 1858 Treaty and would not
destroy what has been clearly granted. The problem before the
Court is precisely the lack of clarity as to how the term
“comercio” should be interpreted. In these circumstances, the
Court should have examined the intentions of the Parties at
the time of the conclusion of the Treaty, taking full account of
the well- established principle that limitations on the sovereignty of a State are not to be presumed.
[...] The Court ignores the SS ‘Wimbledon ’ dictum [...] and related
jurisprudence. Consequently, its conclusion runs counter to the
principle that limitations on sovereignty are not to be
presumed’ (emphasis added).
presumed, no evolutionary interpretation may be accepted
without some clear indication that the parties actually intended
to give an evolving meaning to treaty terms.746
2.3 The Principle of Effectiveness: Application and Limits
The cases of Nicaragua before the Court have also shed light
on the principle of effectiveness (or effective interpretation; ut
res magis valeat quam pereat), which has often been used by both
state-parties and the Court itself in support of their arguments
and conclusions.747The principle of effectiveness is considered
745See Navigational and Related Rights (Judgment), supra n. 9, Declaration

of Judge ad hoc Guillaume, p. 298, para 15: ‘As the Court has
pointed out, exceptions or “limitations of the sovereignty of a
State over its territory are not to be presumed” (Judgment,
para 48). In my view, by operation of this presumption and of
the language itself of the Treaty, the limitation imposed on
Nicaragua’s territorial sovereignty must be given a restrictive
interpretation, as the Permanent Court held in a comparable
case, that of the SS “Wimbledon ’, in respect of navigation on the
Kiel Canal’.
Opinion of Judge Skotnikov, p. 284: ‘No evidence submitted by
the Parties showed that Nicaragua and Costa Rica intended at
the time the Treaty was concluded to give an evolving
meaning to the word “commerce”. Accordingly, the Court’s
presumption should have been that Nicaragua, when
concluding the 1858 Treaty, was unlikely to have intended to act against its own
interest by granting Costa Rica navigational rights which were not
in line with the contemporaneous meaning of the term
“comercio” and which would evolve and expand over time
along with the meaning of that term’ (emphasis added).
747Mavrommatis Palestine Concessions, Judgment, 1924, PCIJ Series A, No. 2, p. 34; Free Zones of
Upper Savoy and the District of Gex, Order, 1929, PCIJ Series A, No. 22, p. 13; Corfu Channel (United
Kingdom v. Albania), Merits, Judgment, ICJ Reports 1949, p. 24; Anglo-Iranian Oil Company (United
Kingdom v. Iran), Preliminary Objections, Judgment, ICJ Reports 1952, p. 105; Constitution of the
Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory
Opinion, ICJ Reports 1960, p. 160; Territorial Dispute, n. 6p. 23, para 47; Fisheries Jurisdiction (Spain
v. Canada), Preliminary Objections, Judgment, ICJ Reports 1998, p. 455, para 52; Application of the
International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation), Preliminary Objections, Judgment, ICJ Reports 2011, pp. 125-126, paras 133-134.
Treaties 241
of customary character, its application being required by the
general rule of interpretation in Article 31 VCLT.748The principle
makes the almost trite point that between two possible
interpretations of a provision, the interpreter should choose
the one which makes the provision meaningful and effective,
rather than the one which makes it redundant and thus
ineffective.749Indeed, the presumption should always be that,
by adopting a particular provision in a treaty, the States parties
meant to say something rather than say nothing.
In Navigational and Related Rights, the Court gave preference to an
interpretation of the terms of the relevant treaty which would
not lead to absurd results and which would allow the relevant
provision to ‘convey a perfectly comprehensible idea’.750In
considering the meaning of the term ‘con objetos de comercio’, the
Court rejected the interpretation suggested by Nicaragua (‘with
articles of trade’, in their concrete, material sense) as
rendering meaningless the entire sentence in which the phrase
appears and upheld the interpretation put forward by Costa
Rica (‘for the purposes of commerce’, in the abstract sense of
ends and purposes) as giving the entire sentence coherent
meaning.751Still, the Court acknowledged that limits should be
imposed on the use of the principle of effectiveness so as to
748See paragraph 6 of the commentary to Articles 27-28 on

the Law of Treaties, YbILC 1966, Vol. II, p. 219, para 6: ‘The
Commission [...] took the view that, in so far as the maxim ut res
magis valeat quam pereat reflects a true general rule of interpretation, it
is embodied in article 27, paragraph 1, [eventually Article 31(1)
VCLT] which requires that a treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to
its terms in the context of the treaty and in the light of its
object and purpose'.
749Ibid.: ‘When a treaty is open to two interpretations one of
which does and the other does not
750enable the treaty to have appropriate effects, good faith
and the objects and purposes of the treaty demand that the
former interpretation should be adopted’; see also US-Standards for
Reformulated and Conventional Gasoline, WTO Appellate Body Report, 29 April
1996, WT/DS2/AB/R, p. 23. Navigational and Related Rights (Judgment),
61
supra n. 9, p. 238, para 52.

not ignore the intention of the parties as enshrined in the text
of a treaty.752In order to remain true to the intention of the
parties, the Court anchored the application of the principle of
effectiveness to the general rule of interpretation reflected in
Article 31 VCLT, and the important role given therein to the
ordinary meaning of the terms of a treaty.753
This the Court had also done earlier, in Land, Island and 'Maritime
Frontier, a case in which Nicaragua intervened. Honduras had
claimed in that case that a Chamber of the Court had the
authority to delimit maritime boundaries based on the Special
Agreement between itself and El Salvador, despite the lack of
any specific reference to such power in the agreement. To
substantiate its claim Honduras invoked the principle of
effectiveness, arguing that in view of the object and purpose
of the agreement, which was to dispose completely of a corpus
of disputes, the agreement should be interpreted as requiring
delimitation.754This was because legal title without delimitation
of its scope would be a title without any real substance. 755The
Court responded to this argument by stipulating that the
interpretation of a treaty should always be with due regard to
its letter, which reflects the parties ’ common intention. 756To
this end it quoted its judgment in Arbitral Award of 31 July 1989,
where the Court found that ‘ [ . . . ] although the two States had
expressed in general terms [ . . . ] their desire to reach a
settlement of their dispute, their consent thereto had only
been given in the terms laid down by Article 2’.757In other
words, the Court reaffirmed the fundamental interpretative
principle that one may not read into the terms of a treaty what
these do not, expressly or by implication, contain.758The Court
752Ibid.
753Ibid., p. 242, para 63.
754El Salvador/Honduras (Merits), supra n. 10, p. 583, para 375.
755Ibid.
756Ibid., pp. 582-583, paras 373 and 376.
75774Arbitral Award of 31 July 1989 (Judgment), supra n. 6, p. 72, para 56.
758 See for example the
75
Interpretation of Peace Treaties with Bulgaria, Hungary and
p. 229, where it is
Romania, Second Phase, Advisory Opinion, ICJ Reports 1950,
stated that ‘[t]he principle of interpretation expressed in the
Treaties 243
thus limited the function of the principle of effectiveness to
guiding a choice between plausible interpretations of the
ordinary meaning to be given to the terms of a treaty, rather
than treating it as a principle overriding problematic
expressions of party intention by going beyond the treaty
terms.
Further to that, in Land, Island and Maritime Frontier, the Court
referred to the issue of the burden of proof in cases where a
party suggests an interpretation advancing a special meaning
of a treaty term. If a party is arguing that a term was intended
as departing from the ordinary meaning (in accordance with
Article 31 VCLT), the onus is on this party to prove that this is
the case.759This may seem a straightforward rule, in
accordance with the general principle on the burden of proof
actori incumbit probatio, also applicable in international
law.760761However, it is not always straightforward to distinguish
which one is the party arguing for a special meaning. The
separate opinion of Judge Torres Bernárdez in Land, Island and
Maritime Frontier demonstrates precisely this difficulty. Starting
with the analysis of the ordinary meaning of the term
‘determinar’ in Spanish, Judge Torres Bernandez argued that
maxim: ut res magis valeat quam pereat, often referred to as the rule of
effectiveness, cannot justify the Court in attributing to the
provisions for the settlement of disputes in the Peace Treaties
a meaning which [...] would be contrary to their letter and
spirit’. See also United States Nationals in Morocco (Judgment), supra n. 23,
pp. 196 and 199, where the Court, referring to the Interpretation of
Peace Treaties Advisory Opinion, concluded that ‘[it] cannot adopt a
construction by implication of the provisions of the Madrid
Convention which would go beyond the scope of its declared
purposes and objects. Further, this contention would involve
radical changes and additions to the provisions of the
Convention. ’ The Court, in the Interpretation of Peace Treaties Advisory
Opinion, at p. 229, stated: ‘It is the duty of the Court to
interpret the Treaties, not to revise them’.
760See generally Brown (2007), pp. 92-97.
761El Salvador/Honduras (Merits), supra n. 10, Separate Opinion of
Judge ad hoc Torres Bernárdez, pp. 720-722, paras 192-193.
the term may indeed encompass the idea of delimitation. He
suggested that once a meaning is accepted as within the limits
of ‘ordinary’, the onus falls on the opposing party to establish,
as a special meaning, that this is not the
78
case.
Most crucially, in its judgment on Colombia’s preliminary
objections in the Alleged Violations of Sovereign Rights case, the ICJ
rejected a strict application of the principle of effectiveness,
accepting that the interpretation of a provision as being
included in a treaty ex abudante cautelastill constituted an effective
interpretation of that provision, in particular in view of the
object and purpose of the treaty.762Reaffirming the tight link
between the elements of interpretation enshrined in Article 31
VCLT and the principle of effectiveness, the Court rejected
Colombia’s argument that only an interpretation which allowed
the immediate effect of withdrawal of consent to ICJ
jurisdiction upon denunciation of the Pact of Bogota would be
consistent with the principle of effectiveness.
Colombia had argued that the express provision in the
second paragraph of Article LVI of the Pact was that
denunciation shall have no effect on pending procedures
initiated before the transmission of a notification to that end. As
such, the notification should have immediate effect on
procedures initiated after its transmission, by derogation from
the first paragraph of Article LVI which provides that
denunciation of the Pact will take effect one year from the
transmission of the relevant notification. Otherwise, the second
paragraph of the Article would be rendered redundant. 763
The Court reasoned in response that such an interpretation
would not only be contrary to the object and purpose of the
treaty, which after all was the pacific settlement of disputes,
but it would also deprive the first paragraph of Article LVI of
the Pact of any meaningful content, thereby being contrary to
the principle of effectiveness.764This was because, the bulk of
the treaty referring to dispute settlement processes, very few
762 Alleged Violations (Jurisdiction),
19
supra n. 7, paras 42-43.
763Ibid., para 26.
Treaties 245
and inconsequential provisions would be left to take advantage
of the one-year period for the taking effect of denunciation
upon its notification. The Court further clarified that the
adoption of a provision for the avoidance of doubt or out of an
abundance of caution does not render the provision ineffective,
even if by definition the provision is not strictly necessary. 765
The WTO Appellate Body has adopted a similar approach,
affirming that the VCLT principles of interpretation are to be
followed in a holistic fashion, so as to yield an interpretation
that is harmonious and coherent and sits comfortably with the
treaty as a whole so as to render the treaty provision legally
effective.766The principle of effectiveness in fact serves to
ensure the fulfilment of a treaty’s object and purpose through
the proper interpretation of the treaty’s provisions.
2.4 On Elements of the General Rule in Article 31 VCLT
In Military and Paramilitary Activities and in Land, Island and Maritime Frontier,
the Court also clarified the limits of reliance on the object and
purpose of a treaty. The Court required that arguments related
to the object and purpose always find support in the letter of
the treaty and make its provisions effective, rather than being
used to compensate for lack of substantive provisions to
support a state’s position.
Examining the ‘object and purpose’ as a singular concept
rather than as separate terms with distinct content, 767the Court
765Ibid., para 43.
766United States - Continued existence and application of zeroing methodology, WTO Appellate Body
Report, 4 February 2009, WT/DS350/AB/R, para 268.
76784The Court’s stance on whether ‘object and purpose’ is a
single concept or two distinct concepts has not always been
consistent. A notable exception from the unitary approach was
the case of Border and Transborder Armed Actions (Nicaragua v. Honduras), Preliminary
Objections, Judgment, ICJ Reports 1988, p. 89, para 46, where the Court said
that a particular solution ‘would be clearly contrary to both the
object and the purpose of the Pact’, essentially implying that
the concepts ‘object’ and ‘purpose’ are distinct. This approach
was also followed in Oil Platforms (Jurisdiction), supra n. 6, pp. 138 ff,
in Military and Paramilitary Activities referred to the specific regulatory
scope of the 1956 Treaty of Friendship, Commerce and
Navigation (‘FCN’) between the United States and Nicaragua,
in the context of Nicaragua’s argument that the United States
had, through its actions, deprived the Treaty of its object and
purpose. Specifically, Nicaragua had argued that ‘whatever the
exact dimensions of the legal norm of “friendship”, there can
be no doubt of a United States violation in this case’ since
‘without doubt a treaty of friendship [ . . . ] imposes on the
Parties the obligation to conduct amicable relations with each
other’.768The US actions, according to Nicaragua, violated a
separately existing customary obligation for states not to
impede the due performance of a treaty, as a corollary of the
principle of pacta sunt servunda.769What was essentially suggested,
though, was a rather broad interpretation of the 1956 FCN
Treaty provisions in their entirety, relying on the general object
and purpose of maintaining friendly relations; an expansive
interpretation that would ultimately create a new obligation (in
the realm of customary law) arising out of the treaty but not
expressly included in it. In the words of the Court, Nicaragua
was seeking for ‘a blanket condemnation of the United States
for all the activities of which Nicaragua complains on more
specific grounds’770as being in violation of the general objective
paras 275 ff, where the Court examined possible frustration of

the purpose and of the object of a treaty of friendship
separately. See on this matter Gardiner (2010), pp. 194 ff.
769Ibid., p. 135, para 270. The inclusion of such an obligation to
abstain from acts calculated to frustrate the object and
purpose of a treaty was proposed during the drafting of the
1966 Draft Articles on the Law of Treaties in relation to Article
23 enshrining the principle of pacta sunt servanda. According to the
commentary, the proposal was rejected by the Commission as
redundant. The obligation was considered clearly implicit in the
general requirement of performance of the treaty in good faith.
See paragraph 4 of the commentary to Article 23 on the Law
of Treaties, YbILC 1966, Vol. II, p. 211.
770 Nicaragua v. United States (Merits), supra n. 1, p. 137, para 273.
81
Treaties 247
of friendly relations, regardless of whether such actions were
contrary to any specific substantive rule in the treaty.
The Court responded to this argument by setting out a clear
limit to the use of the object and purpose, essentially
stipulating that it may not be relied upon to substitute for a
treaty’s specific substantive provisions, but must rather be
used to shed light on these provisions, to which it must always
relate.771The Court affirmed that a determination of a possible
violation of customary international law in relation to
compliance with a treaty naturally involves the interpretation
or application of the relevant treaty whose performance is
allegedly hindered.772It then proceeded to analyse which of the
US actions, challenged by Nicaragua, would indeed deprive the
1956 FCN Treaty of its object and purpose and which were
771Ibid. The same conclusion was later reaffirmed by the Court

in the case concerning the Arbitral Award of 31 July 1989. The issue in this
case was whether or not the overall objective of the parties to
settle the entirety of their maritime dispute, as described in
their agreement’s preamble should prevail over the specific
terms laid down in the text of the same agreement. The Court
answered the question negatively, thereby confirming that the
use of the ‘object and purpose’ is limited to guidance in the
process of interpretation (see supra n. 6, pp. 72-73, paras 55-
56).
772The Court did not rule out the possibility for such a
separate obligation to exist (in fact one may argue that it was
essentially acknowledged), but neither did it positively confirm
it. It stated that ‘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 [...] 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’. The
subsequent substantial analysis concentrated on the 1956 FCN
Treaty itself and the actions that may indeed defeat its object
and purpose (Nicaragua v. United States (Merits), supra n. 1, p. 135, para
270 and pp. 136-138, paras 273-276).
‘less flagrantly in contradiction’ with its purpose. 773This
reasoning is evidently pertinent to the issue of treaty
interpretation and the use of the object and purpose in
interpretation.774But the nature of the argument and the
ambiguous analysis of the Court, allow the reasoning to also
be used for the purposes of identifying a treaty’s material
breach. In a case between Croatia and Slovenia, this reasoning
was relied upon in order to ascertain which treaty provisions
may be considered essential to the accomplishment of the
object or purpose of the treaty in the context of Article 60(3)
(b) VCLT.775
In Land, Island and Maritime Frontier, a Chamber of the Court
engaged with the argument of Honduras, which, by recourse
to the object and purpose of the Special Agreement giving the
Chamber jurisdiction and the principle of effectiveness,
attempted to establish the Chamber’s jurisdiction over a
broader range of matters than that expressly stipulated in the
agreement. The special agreement in question conferred on
the Court the power to ‘determine the legal situation of the
island and the maritime spaces’, rather than jurisdiction ‘to
delimit the boundary line’ of the land frontier. Honduras
argued that
the object and purpose of the Special Agreement is to
dispose completely of a corpus of disputes some elements
of which are more than a century old, as is clear from the
Preamble to the 1980 General Treaty of Peace; in the
light of this, the Special Agreement should be interpreted
to require a delimitation, since for Honduras a legal title
without delimitation of its scope is a title without any real
substance.776
In response to this argument, the Chamber found that the
object and purpose cannot be used to alter the clear scope and
meaning of a treaty provision. By reference to Arbitral Award of 31
773Nicaragua v. United States (Merits), supra n. 1, p. 138, paras 275-

276.
774For a thorough analysis on the use of the ‘object and
purpose’ in treaty interpretation see Buffard and Zemanek
(1998), p. 311.
775Arbitration Between the Republic of Croatia and the Republic of Slovenia, PCA Case No 201204,
Partial Award, 30 June 2016, paras 215 ff.
Treaties 249
July 1989, the Chamber explained that even if two states have
expressed in general terms the desire to reach a settlement of
their dispute, the consent to a dispute settlement mechanism
should again be examined on the basis of the agreed terms as
enshrined in the provision in question.777In fact, it argued that
such line of reasoning resembles more an argument based on
the ‘circumstances of the conclusion’ of the treaty, which
according to Article 32 VCLT constitute a supplementary means
of interpretation to be used only where the meaning of the
text is ambiguous or obscure, or where the interpretation
under Article 31 would lead to a manifestly absurd or
unreasonable result, or to confirm the interpretation reached
under Article 31. An argument based solely on a general
reference to the intention of the parties cannot serve to extend
the meaning and thus to enlarge the scope of a clear-cut
treaty provision.
This combination of the arguments referring to the object
and purpose and effet utile in Land, Island and 'Maritime Frontier confirms
the position elaborated above that effectiveness seems to be
subsumed in Article 31 VCLT. It is one of the elements to be
thrown into the ‘crucible’,778a necessary consequence of
interpretation in light of the object and purpose of a treaty,
rather than being a somehow distinct principle or
tool.779Similarly, other maxims, such as that allowing argu-
ments a contrario, may also be circumscribed by the object and
purpose of the treaty, and thus by the general rule of Article
31 VCLT.780
In Land, Island and Maritime Frontier, the Chamber also made an
interesting finding with regard to the use of subsequent
practice in treaty interpretation, a rule reflected in Article 31(3)
(b) VCLT. In support of its argument that the Chamber had
jurisdiction to delimit the boundary, Honduras referred to a
different agreement between the same parties. Pursuant to the
777Ibid.
778Paragraphs 8-10 of the commentary to Articles 27-28 on
the Law of Treaties, YbILC 1966, Vol. II, pp. 219-220.
779See Dorr and Schmalenbach (2012), p. 540.
780 Alleged Violations (Jurisdiction), supra n. 7, para 42.
91
wording of that agreement, which was identical to that of the
special agreement conferring jurisdiction on the Chamber in
the instance, a Joint Frontier Commission had entertained
proposals in relation to maritime delimitation.781Honduras thus
presented an argument based on subsequent practice in
relation to a different, if identically worded, agreement
between the same parties.
The Chamber accepted in principle that such practice could
be taken into consideration on the basis of Article 31(3)(b)
VCLT—and of customary international law—but rejected the
essence of the argument and set a limit to the use of the
practice by stating that ‘none of these considerations raised by
Honduras can prevail over the absence from the text of any
specific reference to delimitation’.782The Chamber looked at
other special agreements conferring jurisdiction on the Court
to delimit boundaries and found that where the parties wished
the Court to undertake delimitation, they had stated their
intention very clearly, contrary to the silence of the agreement
in question.783But the important point is that the Chamber
seems to have allowed to some extent subsequent practice in
the application of a different agreement (even if closely
related, i.e. of the same ‘type’) between the same parties to be
considered as subsequent practice relevant to the
interpretation of a treaty. This is not necessarily in line with the
wording of Article 31(3)(b) VCLT, which is clearly limited to
subsequent practice in the application solely of the agreement
being interpreted.784However, it may indicate that ‘subsequent
782"Ibid., para 380. Cf Nolte (2013), pp. 178-179 where this
finding of the Court is characterised as ‘exceptional’. According
to Nolte: ‘In most cases [...] courts and tribunals have
accepted that the specification of the “ordinary meaning” by
agreed subsequent conduct is determinative, regardless of
whether this conduct suggests a broader or a more restrictive
alternative of the initial textual meaning’.
784Article 31(3)(b) speaks of ‘any subsequent practice in the
application of the treaty which establishes the agreement of the parties
Treaties 251
practice’ may indeed go beyond the strict confines of Article
31(3)(b) as an interpretative aid. Even if the requirements of
Article 31(3)(b) are not fulfilled (either because subsequent
practice relates to a different, if closely related, agreement, or
because, even if it relates to the application of that same
treaty, it is not enough to ‘establish the agreement’ of the
parties as to its interpretation), subsequent practice may still
be taken into consideration, perhaps as a supplementary
means of interpretation under Article 32 VCLT.785
2.5 Conclusion on Interpretation
The contribution of the Nicaraguan cases to the law on the

interpretation of treaties is significant, if not necessarily easy to
discern. The main point that may be taken away from the
review in this section is not simply the confirmation of the
dominance of the VCLT rules on interpretation. It is rather their
all-encompassing character. Various interpretative principles,
often relayed as Latin maxims (apparently expressing
something in Latin adds gravitas,786even if the Romans them-
selves did not actually use the expression787), are shown to fit
into the VCLT rules.
Essentially, all principles discussed here may be seen as
somehow subsumed into the VCLT scheme. In dubio mitius for
example can be seen as a supplementary means of
interpretation to be resorted to when the general rule of
interpretation leaves the meaning of a provision ambiguous or
obscure, and so can subsequent practice that does not fulfil
the criteria of Article 31(3)(b). But in dubio mitius can also be seen
as subsumed in the general rule, which requires interpretation
in accordance with the ordinary meaning to be given to the
terms in their context. The same applies to the principle of
effectiveness, which is subsumed in teleological or purposive
regarding its interpretation’ (emphasis added).

785See generally Tzanakopoulos (2016), p. 82 with further
references to similar practice by domestic courts.
786Pun intended.
787Cf Pound (1921), pp. 832 ff.
interpretation mandated by the general rule. Interestingly,
both of these latter principles can be cast either as guiding the
selection between two (or more) possible interpretations
(which would mean that the meaning of the provision is
ambiguous, viz Article 32), or as guiding to the unambiguous
meaning of a treaty provision in accordance with the ordinary
meaning to be given to its terms, and so on (viz Article 31).
In the final analysis, whether we see a particular principle as
subsumed in Article 31 or as allowed by Article 32 and its non-
exhaustive enumeration is of little consequence. Despite a
general perception that recourse to supplementary means is
only allowed when interpretation under Article 31 leaves the
meaning ambiguous or obscure, the truth is that Article 32
allows such recourse also ‘to confirm the meaning resulting
from the application of Article 31’, which essentially means
recourse to Article 32 is permitted whenever the interpreter
wishes to have such recourse.788The Court’s constant recourse
to preparatory work confirms this.789And the spectacular
flexibility of the VCLT rules on interpretation, which is enough
to accommodate all sorts of principles of interpretation, may
indeed be the quintessence of their genius, even if it also
results in the denial of their normative content.
3 The Interplay Between Treaty and Customary Law
The also known colloquially as the

Military and Paramilitary Activities,
‘Nicaraguacase’, is considered a cause celebre for a number of
areas of international law. But in the context of this study,
what is important is the Court’s treatment of the interplay
between treaty and customary law. Nicaragua had brought
claims against the United States on the basis of both treaty
and customary law. The ‘multilateral treaty’ reservation in the
US declaration accepting the jurisdiction of the Court under
Article 36(2) ICJ Statute, however, blocked consideration of
multilateral treaty claims by the Court. The latter thus had to
788105See also Villiger (2011), p. 113; Sinclair (1984), pp. 115-116.
789106See e.g. LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, pp. 503 ff,
paras 104 ff.
Treaties 253
decide whether treaty and customary law claims which seemed
to substantially overlap constituted two distinct and
independent causes of action that could be examined
separately, and thus found the Court’s jurisdiction at least with
respect to claims under customary law. Still, it was not the first
time that the Court had the opportunity to pronounce on the
relationship between treaty and custom.
Relevant issues had arisen before the Court in several
instances prior to Military and Paramilitary activities. In Rights of the
Nationals of the United States of America in Morocco, the United States had
argued that the rights enjoyed under a treaty had acquired
independent existence in customary law and hence, even when
the treaty rights were terminated, the customary ones would
subsist.790The Court found in that instance that the evidence
presented was ‘not enough to establish that the States
exercising consular jurisdiction in pursuance of treaty rights
enjoyed in addition an independent title thereto based on
custom’.791However, the finding did not reject the position that
treaty rights may have an independent existence on the basis
of customary international law—the decision was rather based
on the specific facts of the case.792The time for a positive
finding to that end was yet to come.
790107United States nationals in Morocco (Judgment), supra n. 23, pp. 199-200.

791108Ibid.
792109Fitzmaurice (1953), p. 65.
Treaties 254
In North Sea Continental Shelf, Denmark and the Netherlands
argued that the Federal Republic of Germany was bound by
the equidistance principle regarding continental shelf
delimitation in Article 6 of the 1958 Geneva Convention on the
Continental Shelf, because the latter reflected a rule of
customary international law binding on Germany independently
of its (lack of) participation in the treaty.793The Court
established that a treaty provision could reflect customary law
in three ways: a treaty rule could codify a preexisting
customary rule; the process of negotiation and conclusion of
the treaty could serve to ‘crystallise’ a customary rule in the
image of the treaty rule, with the two emerging virtually at the
same time; or finally a treaty rule could serve as the basis of
development of a new customary rule in the treaty rule’s
image.794Despite finding that Article 6 of the Convention in
question did not finally reflect customary international law, the
Court clearly acknowledged the possibility of separate and
independent existence of customary and conventional law of
essentially identical content and further noted that reservations
to a conventional rule may not affect the application of the
related customary rule.795
In United States Diplomatic and Consular Staff in Tehran, the Court found
a solid violation of treaty law on the part of Iran. But it did not
stop there: it went on to find that Iran had breached ‘not
merely contractual obligations established under the Vienna
Conventions of 1961 and 1963, but also obligations under
general international law’.796In so doing, the Court confirmed
that overlapping international obligations under treaty and
customary law co-exist in parallel, without one subsuming the
other, and are separately enforceable, but it also clarified that
when rules of treaty and of customary law require identical
conduct, behaviour contrary to the rules amounted to a single
793North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of

Germany/Netherlands), Judgment, ICJ Reports 1969, p. 28, para 37 (hereinafter ‘ North Sea
Continental Shelf (Judgment)’).
794
115 Ibid., pp. 37, paras 60 ff.
Named after the Senator who successfully presented the
795Ibid., pp. 38-39, para 63.
amendment
796 113 for approval
United States Diplomatic to Staff
and Consular thein United
Tehran (United States v. Iran), Judgment, ICJ
States Senate.
Treaties 255
internationally wrongful act.797It would not be until Military and
Paramilitary Activities that the Court would revisit this position in a
case where it actually mattered.
In Military and Paramilitary Activities, the Court was finally
compelled to discuss the relationship between treaty and
custom in a high stakes context. The Court’s jurisdiction was
curbed by the so-called Vandenberg amendment798that
accompanied the US declaration accepting the Court’s
jurisdiction under the optional clause of Article 36(2) of the ICJ
Statute. According to the amendment, also known as the
‘multilateral treaty reservation’, the Court’s jurisdiction would
not extend to ‘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
797Reports 1980, p. 31, para 62.

798114Ibid.
United States of America specially agrees to jurisdiction’. Given
that not all parties to the UN Charter or to the Organization of
American States Charter (the multilateral treaties under which
Nicaragua had made claims) were parties to the dispute, and
that the US had most definitely not ‘specially agreed’ to
jurisdiction in this case, the Court could not adjudicate on the
alleged violations of those multilateral treaties.
Nicaragua did of course contest both the validity and the
relevance of the US reservation.799However, it had cleverly
brought its claims on two separate legal bases: it claimed
violations not only of the relevant multilateral treaties, but
also, in the alternative, violations of ‘fundamental rules of
general and customary international law’ as a distinct cause of
action.800Nicaragua argued that the military and paramilitary
activities conducted against it by, or with the assistance of, the
United States from 1981 to 1984 were in violation of the UN
Charter provisions on the prohibition of the use of force, which
provisions were, however, also within the realm of general
international law.801The same facts, Nicaragua argued further,
may justify invocation of distinct causes of action and the
application of the rules on the use of force is not exclusively a
question under a multilateral treaty.802
The US countered that Nicaragua’s alternative basis was a
mere ‘reformulation and restatement’ of its allegations based
on multilateral treaties.803Thus, the Court could not
determine the merits of Nicaragua’s claims formulated
under customary and general international law without
interpreting and applying the United Nations Charter and
the Organization of American States Charter; and since
the multilateral treaty reservation bars adjudication of
claims 804
based on those treaties, it bars all Nicaragua’s
claims.
In essence, the US argument was twofold: on the one hand,
the pre-existing rules of customary law had been codified in
800Ibid, p. 422, para 69.
801Ibid., pp. 423-424, para 71.
802Ibid.
804Ibid., p. 422, para 69.
Treaties 257
the UN Charter and had been thus ‘subsumed’ and
‘supervened’ by international treaty law; on the other hand,
any later emergence of relevant customary rules had been
influenced by the UN Charter so that the customary rules could
not be applied separately.805
The Court’s judgment on jurisdiction and admissibility was
straightforward, explaining that 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 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.806
However, the issue was passed on to the merits of the case,
where the Court had to ‘develop and refine upon these initial
remarks’,807since the US jurisdictional objection was found not
to possess an exclusively preliminary character.808
In the merits phase, the Court first examined the content of
the treaty provisions invoked by Nicaragua along with the
corresponding customary rules and concluded that, in the
areas of law relevant to the dispute before it, it could not be
claimed that the relevant treaty and customary rules had a
content that was identical.809Indicatively, the Court referred to
the concepts of necessity and proportionality as elements of
the ‘inherent right of individual or collective self-defence’, as
805Nicaragua v. United States (Merits), supra n. 1 p. 93, para 174.

809See Nicaragua v. United States (Merits), supra n. 1, p. 94, para 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’.
well as to the definition of ‘armed attack’ which triggered the
exercise of such right. These were only to be found in the
relevant customary rules and not explicitly in Article 51 of the
UN Charter.810This is the first argument supporting that
customary law exists alongside treaty law, even if some of its
elements are overlapping. But, despite this finding, the Court
went a step further by making a more general statement on
the interplay between customary and conventional rules. It
concluded that ‘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’.811
To substantiate this separate, parallel existence of norms
stemming from two different sources of international law, even
when these are identical in content, the Court relied on two
arguments.812The first referred to the applicability of a
conventional rule, which is often affected by the conduct of
other states parties. For example, the rules of the Vienna
Convention on the Law of Treaties concerning termination or
suspension of a treaty may affect the applicability of the
provisions in question: a material breach of a treaty rule by a
810 Ibid.: ‘the Charter, having itself recognized the existence of

121
this right (inherent customary law right of self-defence under

Art 51 of the UN Charter), 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, authorises the exercise of the
“inherent right” of self-defence, is not provided in the Charter,
and is not part of treaty law. It cannot therefore be held that
Article 51 is a provision which “subsumes and supervenes”
customary international law’.
811Ibid., p. 93, para 175.
812Ibid., p. 95, para 178.
Treaties 259
party may justify the termination (or suspension) of a treaty.
But the rules of customary character reflected in the relevant
treaty rules will not cease to operate by virtue of such conduct
and the subsequent termination of the treaty.813The second
argument referred to the methods of interpretation and
application of the two sets of rules: the rules retain their
separate existence since their methods of interpretation and
application are different. A conventional rule, for example, may
be accompanied by the establishment of institutions and
mechanisms competent for its implementation. It will thus be
subject to different treatment than a rule of customary law.
The conclusion was that a multilateral treaty reservation
could not preclude the Court from ruling on claims under
customary international law—even if that customary law was
identical to the multilateral treaty rules. A reservation preclud-
ing jurisdiction over claims under treaty rules will not prevent
an otherwise competent court or tribunal from exercising
jurisdiction over a claim regarding the violation of an identical
customary rule. In light of this finding, the Court proceeded to
the merits of the case, compelled to base its judgment solely
on customary international law.814This occasion provided an
opportunity for the Court to develop its jurisprudence also on
the elements necessary for the formation of custom and on
the content of the customary international law related to the
use of force and non-intervention. This is further discussed
elsewhere in this collection.815
The United States strongly disagreed with the Court’s
813See Article 43 VCLT: ‘The invalidity, termination or

denunciation of a treaty, the withdrawal of a party from it, or
the suspension of its operation, as a result of the application of
the present Convention or of the provisions of the treaty, shall
not in any way impair the duty of any State to fulfil any
obligation embodied in the treaty to which it would be subject
under international law independently of the treaty’.
814Which in this article is understood to be synonymous to
general international law. Whether the two are actually
synonymous is a matter for another day and another study.
815See the chapter on custom in this collection.
decision to proceed with the case despite the multilateral
treaty reservation. Characterising the preliminary objections
judgment as ‘erroneous as a matter of law and based on a
misreading and distortion of the evidence and precedent’, the
US refused to further participate in any subsequent
proceedings.816The judgment was also strongly criticised by
some academics.817However, the most important criticism of
the Court’s decision to proceed to the merits of the case came
from the Bench, with Judges arguing that the Court was
circumventing the reservation, since it had to refer to
multilateral treaties in many instances, for example in order to
identify the existence or the scope of a customary
rule.818Despite basing its judgment on customary law, the
Court was in fact alleged to be proceeding to an in-depth
analysis of multilateral treaty rules.819President Nagendra Singh
responded very sharply to such criticism in his separate
opinion, arguing that the dissents had missed ‘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 recognised by the commu-
nity’.820The President explained, with specific reference to the
provisions of the UN Charter, that the relevant customary rules
have not only been developed but also actually strengthened
816See US Department of State ‘US Withdrawal From the
Proceedings Initiated by Nicaragua in the International Court
of Justice’, 18 January 1985, available at
http://www.nytimes.com/1985/01/19/world/text-of-us-
statement-on-withdrawal-from-case-before-the-world-
court.html?pagewanted=all.
817See the characteristic example of D’Amato (1987), p. 101.
D’Amato characterised the judgment as a failure of legal
scholarship and the Judges of the Court as a collectively naive.
Regarding the relationship between treaty and custom,
D’Amato argued that the Court’s ‘lack of understanding, or
conscious avoidance, of the theory of the interaction of custom
and treaty undermines the authority of its Judgment’ .
818See Nicaragua v. United States (Merits), supra n. 1, Dissenting
Opinion of Judge Schwebel, pp. 302-305, paras 91-96; and
Dissenting Opinion of Judge Jennings, pp. 530-533.
819Ibid.
820Ibid., Separate Opinion of Judge Singh, p. 152.
Treaties 261
through their conventional embodiment, to the extent that
they now stand and survive on their own.821
However, as is evident in the separate and dissenting
opinions accompanying the judgments in the preliminary
objections and merits phases of Military and Paramilitary Activities, the
disagreement was not about the principle regarding the interplay
of treaty and customary law per se, but rather about the proper
course of action for the Court. For example, it was argued that
the Court, in dealing with the Vandenberg reservation, should
have shown not that it can apply customary international law
independently, but that the specific dispute had not arisen under a
multilateral treaty822; or that the Court should have ruled the
reservation inapplicable altogether and applied the multilateral
treaties in question823; or, most importantly, that the Court had
arbitrarily applied rules as being of customary character
without providing sufficient proof of such character.824But there
were no strong arguments presented against the finding
regarding the separate existence of treaty and customary
rules, which, after all, the Court had more or less set out in
previous cases as well.
The position that customary law may be subsumed in a
subsequent or prior treaty would imply the existence of
hierarchy between the sources of international law
enumerated in Article 38(1) of the ICJ Statute. Such hierarchy
is not supported by the letter of the provision825: custom would
either be subsumed in treaty law or be seen as a mere product
of consistent adherence to treaty rules, having no separate
existence (or significance for that matter) as far as parties to
the corresponding treaty are concerned. It would also imply
that the sources of law preclude each other and may not be
821Ibid.
822See ibid., Dissenting Opinion of Judge Oda, pp. 216 ff.
823See ibid., Separate Opinion of Judge Sette-Camara, pp. 197-
198 and Separate Opinion of Judge Ni, pp. 201 ff.
824Ibid., Separate Opinion of Judge Ago, pp. 183-184, paras 6-
7. For a general assessment of the ICJ’s methodology in
determining the existence of customary international law see
Talmon (2015).
825See Crawford (2012), p. 22.
applied cumulatively or simultaneously.
This, in turn, would have two consequences: first it would
be contrary to the very essence—and key attribute—of
customary law, namely that it binds states independently of
conventional arrangements. Custom remains unaffected by the
conduct of a state in relation to a treaty, in the sense that
termination, suspension or amendment of treaty provisions
cannot release a state from its obligations under customary
law.826
Second, the separate and independent existence of
customary and treaty law is warranted by the existence of
different methods of avoiding being bound by (withholding
consent from) treaty and customary rules. To avoid being
bound by a treaty rule, a state may refrain from becoming a
party to the treaty at issue or it may make a reservation to the
treaty in accordance with the rules reflected in Articles 19 to
23 VCLT. On the other hand, to avoid being bound by a
customary rule, a state needs to undertake far more onerous
conduct. It needs to put forward, and to be able to prove,
persistent objection to the rule. This requires the state not
only to object the emerging rule from its inception, but also to
persistently maintain its objection after the emergence of the
customary rule and throughout the life of the rule. 827If we were
to accept that customary and treaty law do not enjoy separate
existence, this distinction would lack any practical value. Most
importantly, and in direct relation to the circumstances in the
Nicaragua case, it would provide a back door for states to escape
their customary obligations. All they would have to do would
be to enter into a multilateral treaty with provisions identical to
customary rules and then to make a reservation, limiting the
effect of the treaty and hence of the corresponding customary
rule, from which they would otherwise have had no way out.
This would in turn deprive the concept of codification of
826Article 43 VCLT.
827For a thorough analysis of the persistent objector (or
persistent dissenter) rule see Mendelson (1998), pp. 227 ff; see
also Crawford (2012), pp. 28-29; and generally Green (2016).
Treaties 263
customary international law of any meaning828; a concept not
only in principle recognised by the Court,829but also
constituting part of the mandate of one of the most important
UN bodies, created to undertake codification and progressive
development of international law, the International Law
Commission.830In North Sea
Continental Shelf, the Court commented that due to the nature of
customary international law, which must have equal force for
all members of the international community, ‘it is to be
expected that when, for whatever reason, rules or obligations
of this order are embodied, or are intended to be reflected in
certain provisions of a convention, such provisions will figure
amongst those in respect of which a right of unilateral
reservation is not conferred, or is excluded’.831However, the
ILC in its ‘Guide to Practice on Reservations to
Treaties’832clarified that the aforementioned dictum did not
generally establish the inadmissibility of reservations in respect
828On the issue of codification and progressive development

of international law see Boyle and Chinkin (2007), pp. 163 ff and
Jennings and Watts (1992), pp. 97 ff.
829See e.g. North Sea Continental Shelf (Judgment), supra n. 110, p. 38,
para 61.
830In accordance with Article 13 of the UN Charter, the
General Assembly of the UN has the power to initiate studies
and make recommendations for the purpose of ‘encouraging
the progressive development of international law and its
codification’. The General Assembly has accordingly
established the International Law Commission and given it the
mandate to codify and progressively develop international law.
See the Statute of the International Law Commission, adopted
by the General Assembly in Resolution 174 (II) of 21
November 1947, as amended by Resolutions 485 (V) of 12
December 1950, 984 (X) of 3 December 1955, 985 (X) of 3
December 1955, and 36/39 of 18 November 1981.
831148North Sea Continental Shelf (Judgment), supra n. 110, p. 38, para
63. 149
832 Guide to Practice on Reservations to Treaties, Report of
the International Law Commission on the work of its sixty-third
session (2011), UN Doc. A/66/10/Add.1, pp. 369 ff.
of customary law, but rather that such a reservation would
have no effect on obligations of general international law
existing outside and independently of the treaty.833The position
of the ILC is that a reservation to a provision reflecting
customary law cannot be excluded a priori, but the reservation
will only have effect on the expression of the rule in the
context of the treaty, since an established customary rule
binds the reserving state independently of treaty
law.834However, it must be noted that a reservation to such
provision may cast doubt on the rule’s general acceptance ‘as
law’, i.e. on the existence of opinio juris, this being one of the
necessary elements for the formation of custom; or it may be
the means by which a persistent objector manifests the
persistence of its objection.835
4 Conclusion
The cases which Nicaragua has brought and has argued before
the International Court of Justice have had significant impact
on the development of the law of treaties, in particular with
respect to treaty interpretation and the relationship between
treaty and custom. It was with these two aspects that the
present chapter sought to engage, though this should not be
seen as claiming that there are no further important law of
treaties aspects of the Nicaraguan cases. But, in general
terms, it may be said as a closing remark that the Nicaraguan
cases have secured their own special place in the history of
the development of the law of treaties and of international law
833150See North Sea Continental Shelf (Judgment), supra n. 110, p. 39,

para 65 and ibid., Dissenting Opinion Morelli, p. 198: ‘Naturally
the power to make reservations affects only the contractual
obligation flowing from the Convention [...] It goes without
saying that a reservation has nothing to do with the customary
rule as such. If that rule exists, it exists also for the State
which formulated the reservation, in the same way as it exists
for those States which have not ratified’.
834151Guide to Practice on Reservations to Treaties, supra n.
149, pp. 370-371.
835152Ibid.
Treaties 265
more generally. And with further Nicaraguan cases pending,
this is obviously not the end of the indirect Nicaraguan
contribution to the development of international law. The
future does indeed last a long time,836and we shall hopefully be
here for some of it, to review and discuss the relevant
developments.
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Antonios Tzanakopoulos is
Associate Professor of Public International
Law at the University of Oxford and Fellow of St Anne’s
College, Oxford.
Anna Ventouratou is
MPhil candidate at the University of Oxford,
Wadham College and research assistant at the Athens Public
International Law Research Centre.
Customary Law, General Principles,
Unilateral Acts
Malgosia Fitzmaurice
Abstract This contribution deals in particular with an undisputed

and fundamental contribution of Nicaragua cases to the
development of customary international law. The question of
customary international law in the Nicaragua cases has become a
central issue in the whole debate on this source of
international law. The approach of the Court to the two-
element structure of customary international law, has been a
source of an invigorating scholarly discussion and speculation.
To some extent the author of this contribution also engages
into the debate how customary international law has
developed further through judicial practice, in particular that of
the International Court of Justice, not lacking in controversy.
This contribution deals with general principles of law, focusing
on the principle of res judicata. Finally, it deals with unilateral
acts, focusing on the legal character of optional declaration
within the system of compulsory jurisdiction of the
International Court of Justice, reliance on which in the Nicaragua
v. United States case was met with a very robust debate.
Contents
1 Introduction.................................................................................................................................... 248
2 Customary International Law in the 1984 and1986 Nicaragua Judgments.............................. 248
2.1 The North Sea Continental Shelf Cases and Customary International Law..................... 249
2.2 The Nicaragua Case and Customary International Law.................................................... 251
2.3 Concluding Remarks............................................................................................................ 259
3 General Principles of Law.............................................................................................................. 260
4 Unilateral Acts................................................................................................................................ 263
4.1 The 1984 Judgment and Unilateral Acts of States............................................................ 263
4.2 The 1986 Judgment andUnilateral Acts of States.......................................................... 263
5 Conclusions.................................................................................................................................... 265
References ......................................................................................................................................... 266
2
4
7
248 M. Fitzmaurice
M. Fitzmaurice (*)
Department of Law, Queen Mary, University
of London, London, UK e-mail:
m.fitzmaurice@qmul.ac.uk
9_10
1 Introduction
Cases with the participation of Nicaragua before the

International Court of Justice have had a significant and lasting
impact on international law in various areas such as sources of
international law, territorial and maritime delimitation. With
respect to sources of international, there is no case, however,
which would have such an impact as the Nicaragua v. United
States.1It has become a classic case of international law, in
relation to the identification of customary international law, on
par with the North Sea Continental Shelf Cases.2Therefore, the Nicaragua
v. United States case will take a central place in this Chapter. This
Chapter will not be devoted to the theoretical and practical
issues of customary international law per se but only to the
questions raised in the Nicaragua v. United States case concerning
customary international law.3The other matters concerning the
sources of international law will include the Nicaragua’s
contribution to the crystallisation of the notion of general
principles of law and unilateral acts of States. The matter of
the relationship between customary international law and
treaties will be dealt with in greater details in the Chapter on
Law of Treaties in this publication.4
2 Customary International Law in the 1984 and 1986

Nicaragua Judgments
As it was already indicated in Sect.1, the customary

international law will be analysed in the context of the lasting
contribution of the Nicaragua v. United States case. There is a wealth
of well-known publications on the subject of this case. 837Its
United States (Jurisdiction)’); Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14 (hereinafter
Customary Law, General Principles, Unilateral Acts 249
contribution to the development of customary international law
was also analysed in the Reports of the Special Rapporteur of
the International Law Commission, Sir
‘Nicaragua v. United States (Merits)’).

2
North Sea Continental Shelf (Federal Republic of Germany ¡Denmark; Federal Republic of
Germany/Netherlands), Judgment, ICJ Reports 1969, p. 3 (hereinafter ‘North Sea Continental
Shelf(Judgment)’).
3
Therefore, such questions as the much-debated requirement
of the belief by States that a rule is law before it becomes a
law and the difficulties of evidencing the existence of opinio juris
(as stated e.g. by Judge Tanaka in his Dissenting Opinion in
North
4
Sea Continental Shelf cases) will not be discussed.
See contribution by Tzanakopoulos A and Ventouratou A
above.
9
See Report of the International Law Commission on the work
5
E.g.,
of its Charlesworth
sixty-eight session (1984-1987)
(2016), and (1998), D’Amato (1985),
Charney ( ), Czaplinski
UN Doc. A/71/10, pp. 79-117, para
1988 ( 1989 ), Mendelson (1989), Lang
63 (hereinafter (1990ILC
‘2016 ),
Tasioulas
Report’). (1996), Lepard (2010) and Schlütter (2010).
250 M. Fitzmaurice
Michael Wood on Formation and Evidence of Customary
International Law, who submitted thus far four Reports, 838839in
which the Special Rapporteur refers to the Nicaragua v. United
States case on multiple occasions. Importantly, Sir Michael Wood
expressly referred to the 1986 Judgment when it recalled that
‘[c]ustomary international law, being general practice accepted
as law, is formed by, and manifests itself in, instances of
conduct that are coupled with opinio juris.'7He also relied on this
case indicating the caution expressed by the Court concerning
the identification of the rule of customary international law
through written texts, such as treaties and resolutions. In such
an event ‘all the surrounding circumstances need to be
considered and weighed.'840As will be shown below, the
findings of the Court in the Nicaragua v. United States case
constituted an important source of inspiration and support for
the adoption by the ILC of its drafts Conclusions on the
identification of customary international law in August 2016. 841
The Judgment in the Nicaragua case has initiated a very
vigorous academic discussion which enriched and further
developed the notion of customary international law. The short
introduction to the North Sea Continental Shelf cases will be
presented in order to analyse the Nicaragua case, as
exemplifying an unorthodox approach to the formative
838Wood M, Special Rapporteur, First report on formation and

evidence of customary international law, 17 May 2013, UN
Doc. A/CN.4/663 (hereinafter ‘Wood, First report’); Second
report on formation and evidence of customary international
law, 23 May 2014, UN Doc. A/CN.4/672 (hereinafter ‘Wood,
Second report’); Third report on formation and evidence of
customary international law, 27 March 2015, UN Doc.
A/CN.4/682 (hereinafter ‘Wood, Third report’) and Fourth
report on formation and evidence of customary international
law, 8 March 2016, UN Doc. A/CN.4/695.
839Wood, Third report, supra n. 6, pp. 4-5, para 13, referring to
Nicaragua v. United States (Merits), supra n. 1, p. 109.
840Wood, Third report, supra n. 6, pp. 15-16, para 29, referring
to Nicaragua v. United States
841(Merits), supra n. 1, pp. 97-98, para 184.
elements of customary international law adopted by the
International Court of Justice. The relationship between
customary law and treaties will discussed in Chapter on the
law of treaties.
2.1 The North Sea Continental Shelf Cases and Customary

International Law
The Court in the above cases adopted the two-element

approach to customary international law which is based on
material and objective (practice of States) element and the
psychological and subjective (opinio juris sive necessitates hereafter
9
of its sixty-eight session (2016),
UN Doc. A/71/10, pp. 79-117, para 63 (hereinafter ‘2016 ILC
Report’).
252 M. Fitzmaurice
element, which expresses the belief that usage is a
‘opinio juris')
legal right.842Scholarly debate concerning these two elements
has attracted robust literature, the presentation of which is
not, however, within the subject-matter of this Chapter. In the
North Sea Continental Shelf cases, both elements were discussed in
the Court's Judgment. Regarding the material element, the
Court, has acknowledged that the entry into force of the 1958
Geneva Convention on the Continental Shelf843as well as the
conclusion of delimitation agreements concerning continental
shelf constituted usage for the purpose of the formation of
custom. In the North Sea Continental Shelf cases the Court described
the requirement for practice as being ‘virtually uniform' 844and
in the Anglo-Norwegian Fisheries case, the Court has expected from
practice ‘substantial uniformity'.845‘Virtual' or ‘substantial'
uniformity does not need to be absolute, as it was stated by
the Court in the Anglo-Norwegian Fisheries case.846
In the North Sea Continental Shelf cases the Court also has dealt
the second, psychological element of opinio juris. The Court was
of the view that the number of ratifications of the Geneva
Convention on the Continental Shelf was not only insignificant
but also that have not evidenced the existence of the opinio juris
in a convincing manner, as ratifications have not conveyed the
feeling of States that they were conforming to a ‘legal
obligation'847and that the use of equidistance method has not
demonstrated of itself ‘anything of a juridical nature'. 848The
question of evidence concerning the opinio juris has not been
solved by the North Sea Continental Shelf cases and, as these cases
demonstrated, the Court derived the subjective element from
the statements of States.849As it was observed by many
publicists such an approach reduces two-element approach to
84210Charlesworth (1984-1987), p. 4.
843n499 UNTS 311.
844 North Sea Continental Shelf (Judgment),supra n. 2, p. 43, para 74.
2
84513Fisheries (United Kingdom v. Norway), Judgment, ICJReports 1951, p. 131 (hereinafter ‘Anglo-
Norwegian Fisheries (Judgment)’).
846Anglo-Norwegian Fisheries (Judgment), supra n. 13, p. 138.
847North Sea Continental Shelf (Judgment), supra n. 2, p. 44, para 77.
848North Sea Continental Shelf (Judgment), supra n. 2, pp. 43-44, para 76.
84917Skubiszewski (1971), p. 843.
one, thus it implies ‘the existence of a psychological element
from state practice unless there is some form of explicit
disclaimer'.850The Court, in particular in the 1986 Nicaragua
Judgment, frequently merges practice and opinio juris and at
times it is rather difficult to distil with an absolute precision
both elements.
9
of its
850 18 sixty-eight session (2016),
Charlesworth (1984-1987), p. 10.
UN Doc. A/71/10, pp. 79-117, para 63 (hereinafter ‘2016 ILC
Report’).
2.2 The Nicaragua Case and Customary International Law
2.2.1 The Identification of Customary International Law
As it was observed in Sect.1 to this Chapter, the Nicaragua case

made a lasting (if contentious) contribution to the
development of the notion of customary international law.851
Despite, the statement by the Court in the Nicaragua case that
it had followed the classic approaches to customary
international law, as formulated in the North Sea Continental Shelf
cases, its approach to the identification of two elements of
customary international law was very controversial and
unorthodox. In the 1986 Judgment, the Court said as follows:
It is of course axiomatic that the material of customary
international law is to be looked primarily in the actual
practice and opinio juris of States, even though multilateral
conventions may have an important role to play in
recording and defining rules derived from custom, or
indeed developing them.852
State practice in the 1986 Judgment, was derived in many
instances from the resolutions of the United Nations General
Assembly (and resolutions of other organisations), in adoption
of which Nicaragua and the United States participated, which
in itself, was a significant departure from an orthodox
approach to the identification of practice of States. 853As it was
observed, the Court relied on various resolutions de lega lata and
de lege ferenda and with a different normative context, both
couched in legislative and non-mandatory language. 22The Court
also had recourse to the work of the International Law
Commission to identify practice of States. At the time of
rendering the Judgment in the 1986 Judgment that was seen
851However, it is worth noting that certain findings of the ICJ

in the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) have
also proved influential. The ILC took support on the Court’s
2009 Judgement (ICJ Reports 2009, pp. 265-266, para 141) to affirm
that ‘the acts of private individuals may also sometimes be
relevant, but only to the extent that States have endorsed or
reacted
22
to them’(1984
Charlesworth (ILC Reports
-1987), 2016,
p. 18. The n. 9, p.of90).
example
supra a
Declaration
853See e.g. of Friendly
paras 193, Relations
204 and 205. is of that
couched in a legislative language.
as a deviation from evidencing practice from the behaviour of
States. However, in 2012 the President of the International
Court of Justice, Judge Tomka made the following statement:
[...] in practice the Court has never found it necessary to
undertake such an inquiry for every rule claimed to be
customary in a particular case and instead has made use
of the best and most expedient evidence available to
determine whether a customary rule of this sort exists.
Sometimes this entails a direct review of the material
elements of custom on their own, while more often it will
be sufficient to look to the considered views expressed by
States and bodies like the International Law Commission
as to whether a rule of customary law exists and what its
content is, or at least to use rules that are clearly
formulated in a
256 M. Fitzmaurice
written expression as a focal point to frame and guide an
inquiry into the material elements
of custom.854
The Court thus has continued in other cases before it such a
method of ascertaining customary international law which had
originated in the 1986 Judgment. In this case, the Court has
also relied on its own case-law in order to accord the status of
State practice such as on the Corfu Channel case.855In general, the
ascertaining of State practice in the 1986 Judgment was based
to a greater extent on States’ statements than actual practice
in the areas of the prohibition of the use of force, the right of
self-defence and the principle of non-intervention. In the first
of these examples, the Court derived practice parallel to the
United Nations Charter of the prohibition of the use of force
from recognition of such rules by States, without actual
examples of such practice.856As to the right to self-defence, the
Court stated that it is an inherent right, customary status of
which is testified by the Charter itself.857In relation to the
principle of non-intervention, the Court avoids altogether the
evidence of practice of States and relies on the opinio juris,
expressions of which are, according to the Court, numerous
and easy to find and in general refers to this principle as ‘part
and parcel’ of customary international law.858The Court
regarding the principle of non-intervention, has not submitted
examples of practice of States corresponding to the existence
of the opinio juris. Instead, the Court decided to examine the
principle allowing foreign intervention.859However, the Court
stated that it had no jurisdiction to decide upon the conformity
with international law of the conduct of States non-Parties to
dispute or conduct of any States- parties unconnected to this
dispute.860Therefore, the principle of non-intervention is
derived from opinio juris without State practice. The Court had
854Tomka (2013), p. 197; see also Bordin (2014), p. 535.
855Corfu Channel (United Kingdom v. Albania), Merits, Judgment, ICJ Reports 1949, p. 34.
857Ibid, pp. 102-103, para 193.
85821 Ibid., p. 106, para 202.
859Ibid., p. 108, para 206.
860Ibid., pp. 108-109, para 207.
established the existence of practice allowing foreign
intervention but it was not accompanied by the opinio juris
therefore in the Court’s view, it did not constitute a norm of
customary international law. Thus the Court derived the norm
of non-intervention from the contrary evidence of the lack of a
norm allowing foreign intervention. The Court in this case has
attached a great importance to statements of States which had
not legally justified intervention, including these of the United
States.861
The Court has established that customary prohibition of the
use of force, both in the United Nations Charter and in
customary international law, derive from a ‘common
fundamental principle, aimed at the outlawing the use of force
in international relations.862It also stated that multilateral
conventions were an important source of recording, defining
and developing the content of the norm of the prohibition of
the use of force.863
The Court in the 1986 Judgment has emphasised the
‘essential role’ of practice for the formation of a norm of
customary international law.864The Court has described the
requisite level of consistency, as not ‘perfect’ and that for the
rule to be established as customary. The corresponding
practice must not be required to be in the absolute ‘rigorous
conformity with the rule’ but ‘should, in general, be consistent
with’ it.865This ‘test propounded by the International Court of
Justice’866was later adopted by the STL867as well as by national
861Ibid., p. 109, paras 207-208.

862Ibid., p. 97, para 183.
863Ibid.
864Ibid., pp. 97-98, para 184. The ILC expressly referred to this
passage in support of its draft Conclusion 2 (2016 ILC Report,
supra n. 9, p. 82, note 253).
86635STL, Appeals Chamber, Interlocutory Decision on the
Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration,
Cumulative Charging, 16 February 2011, para 100.
86736Ibid.
258 M. Fitzmaurice
supreme courts.868More recently, the ILC adopted the following
conclusion: ‘The relevant practice must be general, meaning
that it must be sufficiently widespread and representative, as
well as consistent.’869This conclusion appears to have been
directly influenced by the above cited test, which is quoted in
extenso in the commentary.
870
In the 1986 Judgment, the ICJ further explained that any

inconsistencies with a rule in question, should not be treated
as new rule but rather as ‘breaches of that rule’. 871In this
regard, it was observed that:
In Nicaragua case the Court is prepared to rely on subjective
interpretation of inconsistent action offered by the states
actor itself to determine its weight in the custom-making
progress. Given the unlikelihood of a state’s
acknowledgement that its actions violate international
law, the Nicaragua formula would in practice cover all
activities of states whether they were in accordance with
or went against an asserted customary rule; the pool of
actions which could constitute state practice become
totally undifferentiated.872
With regard to the opinio juris, the Court relied on the
Memorials of Nicaragua (on Merits) and the United States (on
Jurisdiction and Admissibility) to the prohibition of the use of
force as a norm of jus cogens.873The Court as well relied on the
travaux préparatoiresof the International Law Commission
concerning Article 50 of the Draft Vienna Convention on the
Law of Treaties ( jus cogens) and its own decisions, as a proof of
the opinio juris regarding the prohibition of the use of force.
The reliance of the Court on the resolutions of the United
Nations General Assembly (and other organisations) 874is very
86837High Court of Australia, Polyukhovich v. Commonwealth (‘War Crimes Act
case’), 14 August 1991, 172 CLR 501, para 28.
86938Draft Conclusion 8, 2016 ILC Report, supra n. 9, p. 94.
87039Paragraph 7 of the commentary to draft Conclusion 8, ibid.,
p. 96.
87241Charlesworth (1984-1987), p. 22.
873Nicaragua v. United States (Merits), supra n. 1, pp. 100-101, para
190.
874The Court ascertained opinio juris from the resolutions of the
General Assembly (in particular the Declaration on Friendly
well known as it has accorded to them a far greater
significance in ascertaining the opinio juris that in any other
case.875876It stated that such resolutions have an enormous
importance as they amount to ‘an acceptance of the validity of
the rule or set of rules declared by the resolutions themselves’,
thus resolutions represented a corresponding opinio juris45The
Court also opined that statements by State representatives
accepting customary law character of a rule could also count
towards the stating of the opinio juris.877
These findings are expressly referred to by the ILC’s Special
Rapporteur on the identification of customary international
law878and are reflected in the ILC draft Conclusions 6(2) and
10(2) adopted in August 2016879: ‘The forms of state practice
[evidence of acceptance as law (opinio juris)] include [ . . . ] conduct
in connection with resolutions adopted by an international
organization or at an intergovernmental conference.’ The ICJ’s
position has also been recently taken up by the Extraordinary
Chambers in the Courts of Cambodia. In a decision of 5 April
2016, the Co-Investigating Judges adopted the Court’s findings
with regard to the significance of UN resolutions as evidence of
the opinio juris in order to establish that there was no nexus
requirement between crimes against humanity and armed
conflicts.880
Relations’), taking into account the attitudes of States towards

such resolutions ‘with all due caution’ (ibid., pp. 99-100, para
188). The Court also e.g. relied on the United States’ support
for a resolution condemning aggression at the Sixth
International Conference of the American States in 1928,
arguing that it contributes to opinio juris for the prohibition of the
sur of force (ibid., p. 100, para 188).
875See Crawford (2012), p. 178.
876Ibid., p. 100, para 188.
877Ibid.
878See Wood, Second report, supra n. 6, para 76(g) and notes
270-271 and 276.
87920 1 6 ILC Reports, supra n. 9, para 63, respectively pp. 91
and 99.
880ECCC, Co-Investigating Judges, Decision on meas muth’s
260 M. Fitzmaurice
However, such a method of establishing of a norm of
customary international law was considered as not accounting
for realties of international law-making. A very specific context
within which some treaties were adopted may also not be
suitable or acceptable outside the treaty context. The role
assumed by treaties may be at times at variance with
customary law.881Therefore, it was stated that the Court would
fail its duty ‘if it were to find customary law in the absence of a
“general practice”’.882
The approach of the Court to the binary or two-element
character of the formation of a norm of customary
international law in the 1986 Judgment was very unorthodox
in comparison to North Sea Continental Shelf cases and as it was
observed by many authors, the Court emphasised the element
of the opinio juris over practice. Many authors criticised such an
approach, stating that the Court only made perfunctory and
conclusory references to practice of States.883This approach
was mainly subject to criticism as being a deductive method,
as the rules of customary international law were established by
the Court if they were placed within a widely adopted treaty,
resolutions of the United Nations or regional organisations, ‘as
long as practice predicated upon contrary norm is absent’. 884In
general, the scholarly discussion on the application of inductive
or deductive methods in the Court’s reasoning in relation to
the identification of customary international law has ignited a
very robust discussion, the analysis of which exceeds the
framework of this Chapter.885Suffice to say that the 1986
Nicaragua Judgment is frequently considered as an example of
the departure in Court’s methodology from the inductive to the
request for clarification concerning crimes against humanity

and the nexus with armed conflict, 5 April 2016, paras 62 and
73.
881Charney (1988), p. 23.
882 Ibid., p. 29.
883Meron (1998), p. 157; Charney (1988), p. 18.
884Charney (1988), p. 22.
885See e.g. Roberts (2001), Kolb (2003), Tomuschat (1999) and
Talmon (2015a).
deductive method.886This is based on the statement of the
Court that:
The Court does not consider that for a rule to be
established as customary, the corresponding practice
must be in absolutely rigorous conformity with the rule.
In order to deduce the existence of customary rules, the
Court deems it sufficient that the conduct of States
should in general be consistent with such rules [...]. 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, though with all
due caution, be deduced from, inter alia, the attitude of the
Parties and then attitude of States towards certain
General Assembly resolutions.887
This impression was reinforced by the analysis of certain
provisions of humanitarian law (such as common Article 3)
which, according to the Court, acquired customary law
character by reflecting in them ‘elementary considerations of
humanity’. It ‘seems to be sufficient to make norm customary
in character’.888Such a method was criticized by some authors
as ‘entirely deductive’.889These findings have nonetheless been
adopted by multiple national890and international891courts and
886Roberts (2001), p. 758.
887Nicaragua v. United States (Merits), supra n. 1, p. 98, paras 186 and
188.
888Schlutter (2010), p. 154.
889Ibid.
890See e.g. Hamdan v. Rumsfeld, Secretary of Defense et al., US Supreme Court
Case No. 05-184, Judgment, 29 June 2006, note 63 and
Hungary Constitutional Court, 13 October 1993, No. 53/1993,
para V(4)(b) (cited in Korberly v. Hungary, ECHR Application No.
9174/02, Grand Chamber, Judgment, 19 September 2008,
para 18).
891See e.g. Prosecutor v. Dusko Tadic, ICTY Case No. IT-94-1,
Decision on the defence motion for interlocutory appeal on
jurisdiction, 2 October 1995, paras 93, 98 and 102; ICT-R,
Appeals Chamber, Prosecutor v. Jean-Paul Akayesu, ICTR Case No.
6051/Abis, Appeals Chambers, Judgment, 1 June 2001, para
438, note 805 and Prosecutor v. Moinina Fofana, SCSL Case No. SCSL-
2004-14-AR-72(E), Appeals Chambers, Judgment, 25 May
2004, para 22.
262 M. Fitzmaurice
tribunals.
Talmon argues that the use by the Court of the ‘peculiar
and untechnical’ term ‘deduce’, the deductive method, was
mistakenly equated with less strict application of requirements
concerning customary international law, i.e. that there was no
longer a need for consistent practice by States; that opinio juris
has substituted practice, a view which, although shared by the
majority of scholars, is incorrect.892Talmon’s view is different
and he explains that:
[t]he quantity and quality of state practice and opinio juris,
and the relationship between the two, are not questions
of induction or deduction but, rather, questions of
evidence of the elements of customary international law.
In the Nicaragua case, the Court did not abandon the
traditional two-element of customary international law
but, with the “attitude of States towards certain General
Assembly resolutions”, introduced a new piece of
evidence of opinio juris.893
Talmon further explains that the method adopted in the
1986 Judgment, was further applied by the Court in the Nuclear
Weapons Advisory Opinion, where the Court referred to the
894
United Nations General Assembly resolutions as ‘evidence’ of

opinio juris. Talmon states that the Court did not look at the
895
resolutions as such but rather at the attitudes of States

towards these resolutions. It did not ‘deduce’ from them any
norm of customary international law, therefore it did not use
the deductive method. Talmon states that the contrary is true:
by taking samples of States’ attitude and by analysing
underlying consistencies as evidence of customary
international law, the Court in fact followed an inductive
process. Therefore, Talmon opines, the Court’s methodology
for determining rules of customary international law, has to be
differentiated from the constitutive elements and evidence of
these rules.896The inherent difficulties in defining methods of
89261 Talmon (2015a), p. 431.
89362Talmon (2015a), pp. 431-432.
89463Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 22
89564The evidential value of UN General Assembly resolutions
is still much debated. In one of the most recent cases before
the ICJ (concerning nuclear disarmament), Judge Cancado
Trindade
896asked the parties to the dispute; what is the role of these
the ascertainment of customary international law by the Court
as inductive or deductive are clearly illustrated by discussion
on this subject between Professor Talmon on one hand and
Omri Sender and Sir Michael Wood on the other, which has not
lead
resolutions in relation the evidence concerning opinio juris; what is

their relevance to the formation of a customary international
law obligation to pursue negotiations leading to nuclear
disarmament; and what is their incidence upon the question of
the existence of a dispute between the Parties. Judge Cancado
Trindade in particular referred to resolutions condemning
nuclear weapons, extending from 1982 to date, and those
adopted as a follow-up to the 1996 ICJ Advisory Opinion on Nuclear
Weapons, extending so far from 1997 to 2015 (Public Sitting, 16
March 2016, at the Peace Palace, in the case regarding Obligations
concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament
(Marshall Islands v. United Kingdom), Preliminary Objections,http://www.icj-
cij.org/docket/files/160/18966.pdf). In its 5 October 2016
Judgment, the ICJ found that it has no jurisdiction and that ‘it
cannot
65
proceed with the merits of this case’ (para 56).
Talmon (2015a), p. 432.
to a firm conclusion.897Sender and Wood are of the view that
‘Professor Talmon provides his own definitions for “inductive”
and “deductive” methods, but then complains of the Court’s
“inconsistent and non-technical use of induction and
deduction”.’
In fact, it is not at all clear that the Court ever applies a
truly ‘deductive’ method to the determination of customary
international law. In any event, the Court itself does not use
abstract terms, such as ‘induction’ and ‘deduction’, to describe
what it does. It does not engage in theoretical speculation; no
amount of strained parsing of various occasional formulations
or reliance on a few fleeting references can change that. No
importance attaches to the Court’s occasional use of the word
‘deduce’, which in a plain English simply means ‘reach a
conclusion’. It is thus a little unfair to refer, as Professor
Talmon does, to ‘the Court’s peculiar and untechnical use of
the term “deduce”.’898
The opposition between the ‘inductive’ and ‘deductive’
methods has been addressed by the ILC. In the context of its
work on the identification of customary international law, the
Commission concluded that the two approaches are not
exclusive from one another. In the commentary to its draft
Conclusion 2, it explained that:
The two-element approach is often referred to as
“inductive”, in contrast to possible “deductive”
approaches by which rules may be ascertained on
account of legal reasoning rather than empirical evidence
of a general practice and its acceptance as law (opinio juris).
The two-element approach does not in fact preclude a
measure of deduction, in particular when considering
possible rules of customary international law that operate
against the backdrop of rules framed in more general
terms that themselves derive from and reflect a general
practice accepted as law (accompanied by opinio juris), or
when concluding that possible rules of international law
form part of an “indivisible regime”. 68
In support of its position, the ILC referred to the Territorial and
897See the reply to Professor Talmon’s article (2015) by

Sender
68 and Wood
Paragraph 5 of the(2015 ). See also the
commentary rejoinder
to the of Professor
draft Conclusion 2,
Talmon
2016 ILC( 2015b), EJIL: Talk !.
Report, n. 9,(p.
898See Sender and Wood
supra 201584—
).
footnotes omitted.
Maritime Dispute (Nicaragua v. Colombia) case, in which the Court
deducted the customary character of the paragraph 3 of Article
121 of UNCLOS from the customary character of its paragraph
2. In its 2012 Judgment, the Court considered that:
The Court observes, however, that the entitlement to
maritime rights accorded to an island by the provisions of
paragraph 2 is expressly limited by reference to the
provisions of paragraph 3. By denying an exclusive
economic zone and a continental shelf to rocks which
cannot sustain human habitation or economic life of their
own, paragraph 3 provides an essential link between the
long-established principle that “islands, regardless of their
size, [...] enjoy the same status, and therefore generate
the same maritime rights, as other land territory” [Maritime
Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain),
Merits, Judgment, ICJ Reports 2001, p. 97, para 185]) and the more
extensive maritime entitlements recognized in UNCLOS
and which the Court has found to have become part of
customary international law. The Court therefore
266 M. Fitzmaurice
considers that the legal regime of islands set out in
UNCLOS Article 121 forms an indivisible regime, all of
which (as Colombia and Nicaragua recognize) has the
status of customary international law.899
2.2.2 The Regime of Customary International Law
The question of customary international law was also raised at

the jurisdictional and admissibility stage of the case in relation
to the reservation made by the United States to the Optional
Declaration under Article 36(2) of the Court’s Statute accepting
compulsory jurisdiction of the Court. This Declaration
contained so-called ‘Vanderberg’ reservation, which excluded
from the Court’s jurisdiction disputes arising out of multilateral
conventions unless all parties to such a treaty affected by the
decision were also parties to the case before the Court or the
United States specially agreed to the Court’s jurisdiction. This
Declaration was relied upon by the United States to avoid the
jurisdiction of the Court, arguing that the Nicaragua’s case
concerned four multilateral treaties to both the US and
Nicaragua were parties, including the United Nations
Charter.900Nicaragua, mindful of this reservation, in a masterly
manner, based its parallel application to the Court on the
grounds of customary international law, which was accepted
by the Court by a majority of judges.901The Court rejected the
objection to its jurisdiction based on the ‘Vanderberg
Reservation’ because this reservation did not cover customary
international law. It thereby confirmed that customary
international law constitutes an autonomous source of
international law independent from treaties, even when both
sources provide for the same obligation.902
899Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, Judgment, ICJ Reports 2012, p.
674, para 139 (hereinafter ‘Nicaragua v. Colombia (Merits)’).
90070The four treaties were the United Nations Charter; the
Charter of the Organisation of American States; the
Montevideo Convention the Rights and Duties of States and
the 71
Havana Convention on Rights and Duties of States.
901 See on this: Pax (1985), p. 471.
Referring to this paragraph, the Court recently confirmed this
independence in the Croatia v. Serbia case (Application of the Convention on the
This clear independence was further confirmed by the Court
in relation to the ‘fundamental general principles of
humanitarian law.’903In the 1986 Judgment, the ICJ decided
that even if the ‘Vanderberg could prohibit the application of
the 1949 Geneva Conventions, the United States could be
adjudged solely on the basis of these principles, 904as they
constitute an autonomous source of obligations with customary
character. The Court explained that, according to these
Conventions,
v. Serbia), Judgment of 3
Prevention and Punishment of the Crime of Genocide (Croatia
February 2015, par 88). See also paragraph 2 of the
commentary to Conclusion 1 of the ILC on identification of
customary international law, 2016 ILC Report, supra n. 9, p. 79,
para 63, note 246.
90474Ibid.
268 M. Fitzmaurice
their denunciation does not affect the obligations of the
Parties which are binding on them pursuant to principles of
international law deriving from the ‘usages’ which were
established by civilised nations, ‘the laws of humanity and
dictates of public conscience’.905The Court further added that
the rules elaborated in common Article 3, regarding the conflict
on non-international nature constitute ‘a minimum yardstick, in
addition to more elaborate rules which also apply to
international conflicts’ and ‘reflect what the Court in 1949
called “elementary considerations of humanity”.’906
The Nicaragua v. United States case was also the opportunity for
the ICJ to clarify another important aspect of the regime of
customary international law. At the merits phase, the Court
analysed the question of non-compliance with a treaty rule and
a rule of customary international law. The Court ruled out the
analogy with the law of treaties based on Article 60 (material
breach of treaty) of the 1969 Vienna Convention on the Law of
Treaties (1969 VCLT) in relation to breaches of the rule of
customary international law. According to the Court:
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 [1969 VCLT] it is
exempted, vis-à-visthe other State. from a rule of treaty-law
because of the breach by that other State of a different
rule of treaty-law.907
However, in relation to customary international law, the
situation is different. If the treaty rule at hand also exist as
rules of customary international law, the non-compliance of
one State to apply one rule cannot justify the refusal of the
other State to apply the other rule.908The Court thus clarified
that rules which are identical in treaty law and in customary
international law are subject to different methods of
7
5
7
6 905Ibid.
7 906Ibid.
7 907Ibid., p. 95, para 178.
7 908Ibid. See Lang (1990), pp. 124-125.
8
7
9
application and interpretation.909
2.3 Concluding Remarks
The question of customary international law in the Nicaragua

case has become a central issue in the whole debate on this
source of international law. The approach of the Court to the
two -element structure of customary international law, has
been a source of a robust if inconclusive scholarly discussion
and speculation. The method of ascertainment of customary
international law by the Court in the 1986 Judgment
constituted a different approach (despite the Court’s statement
to the contrary) from the orthodox method of the
ascertainment adopted in the North
909Ibid.
270 M. Fitzmaurice
cases, where custom resulted from general
Sea Continental Shelf
and consistent practice followed by the opinio juris i.e. a sense of
legal obligation. A rather blunt assessment of the method
adopted by the Court is that in this case the Court ‘paid lip
service’ only to the classic test for custom and ascertained
customs of non-use of force and non- intervention from
statements such as General Assembly resolutions.910It is
argued that in this case the Court did not make a serious
inquiry into state practice, holding that it was sufficient for
conduct to be generally consistent with statements of rules,
provided that instances of inconsistent practice had been
treated as breaches of the rule concerned rather than as
generating a new rule.911
Such a ‘modern’ approach attracted many detractors such
as such as Professor D’Amato, as going against the traditional
structure of customary international law, by giving the priority
to the opinio juris over State practice.912The 1986 Judgment in
Nicaragua v. United States case gave rise to theoretical ideas aiming
at the reconciliation of both classic and modern approaches,
going beyond legal considerations.913Sir Robert Jennings
expressed his doubts over the compatibility of the theory of
the customary international law and reality stating that:
‘[p]erhaps it is time to face squarely the fact that the orthodox
test of custom - practice and opinio juris - are often not only
inadequate but even irrelevant for the identification of much
new law today’.914
As it was observed the scholarly debate on these issues
mostly raised various legal and philosophical questions
concerning the nature of customary international law, without,
however, providing a definite answer. There is no doubt,
however, that the Nicaragua case contributed, if not originated,
this discussion, which is notable, very robust and energising,
910Roberts (2001), p. 758.

911 Ibid., pp. 758-759.
912D’Amato (1987).
913See Kirgis (1987), Tasioulas (1996), Roberts (2001) and Benivisti
(2004).
914Jennings (1982), pp. 2-5.
as illustrated by the recent exchanges of views.
3 General Principles of Law
General principles of law are considered one of the main

sources of international law, albeit, in view of some scholars,
of a lesser importance than customary international law and
treaties. These principles of law referred to in Article 38(1) (c)
of the ICJ Statute are applied only when there is no treaty or
customary rule applicable to the situation at stake. General
principles of law are therefore not often the subject of lengthy
discussion in the Court’s case law. However, recently, an
important principle attracted much attention, the res judicata
principle.
This principle was discussed by the Court in its Judgment of
17 March 2016 in the Question of the Delimitation of the Continental Shelf
between Nicaragua and
Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v.
Colombia)8It was invoked by Colombia in its preliminary
objections. Colombia argued that the Court has no jurisdiction
in this case because it ‘has already adjudicated on Nicaragua’s
requests in its 2012 Judgment,’915916917rendered in the Territorial
and Maritime Dispute (Nicaragua v. Colombia) case. If res judicata issues
arose in previous cases, it is the first time this principle has
been at the heart of a Court’s Judgment.
In its 2016 Judgment, the Court began by clarifying the
meaning of the res judicata principle. The Court explained that it
must fulfil the following conditions: ‘an identity between the
parties (personae), the object (petitum) and the legal ground (causa
petendi).’87Interestingly, the Court did not verify the identity of
the two Nicaragua’s requests concerning the delimitation of the
continental shelf beyond 200 nautical miles. Yet, the scope of
the two requests were arguably not identical.918Instead, the
Court stated that:
It is not sufficient, for the application of res judicata, to
identify the case at issue, characterized by the same
parties, object and legal ground; it is also necessary to
ascertain the content of the decision, the finality of which
is to be guaranteed. The Court cannot be satisfied merely
by an identity between requests successively submitted
915Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200
nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment
of 17 March 2016 (hereinafter ‘Question of the Delimitation of the Continental Shelf beyond 200 nm
(Jurisdiction)’).
916Ibid., para 47.
91781 Ibid., para 55.
91888As Judges Donoghue and Greenwood pointed out in their
respective separate opinion appended to the 17 March 2016
Judgment, Nicaragua’s request in Question of the Delimitation of the Continental
Shelf beyond 200 nm is wider in scope than its request in the Territorial and
Maritime Dispute (see paras 2-3 of Judge Donoghue’s Opinion and
para 10 in Judge Greenwood’s Opinion). In the Territorial and Maritime
Dispute, Nicaragua’s request only concerns the delimitation of the
continental shelf between the mainland coast of the Parties
(supra n. 69, p. 636, para 17). In Question of the Delimitation of the Continental Shelf
beyond 200 nm, Nicaragua’s request also covers the delimitation of
90
the continental
Question shelf
of the Delimitation of thebetween beyond 200 nm (Jurisdiction),
Nicaragua’s
Continental Shelf mainland coast n.
and
supra
85,
Colombian Islands in the Caribbean Sea (supra n. 85, para 10).
Separate Opinion of Judge Greenwood, para 4.
to it by the same Parties; it must determine whether and
to what extent the 919first claim has already been
definitively settled.
As Judge Greenwood further explained in its separate
opinion appended to the 2016 Judgment, ‘the identity of these
three elements is a necessary, but not a sufficient, condition
for the application of res judicata. It is also essential that the
matter at issue must have been decided in the earlier
proceedings.’920
The application of the res judicata principle in this case led to a
sharp division within the Court. In a strong joint dissenting
opinion, seven Judges stated that:
919Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), supra n. 85,
920para 59.
274 M. Fitzmaurice
The final submission I (3) of Nicaragua in the Territorial and
Maritime Dispute case and the First Request in Nicaragua’s
Application in the present case have both the same
object (the delimitation of an extended continental shelf
entitlement that overlaps with Colombia’s 200-nautical-
mile entitlement, measured from the latter’s mainland
coast), the same legal ground (that such an entitlement
exists as a matter of customary international law and
under UNCLOS), and involve the same Parties. Nicaragua
is therefore attempting to bring the same claim against
the same Party on the same legal grounds. As explained
above, the Court rejected Nicaragua’s final submission I
(3) in the 2012 Judgment. Nicaragua’s First Request in
the present Application is thus an exemplary case of a
claim precluded by res judicata? 1
Strictly speaking, Nicaragua’s request in Nicaragua v. Colombia

has been decided in the 2012 Judgment in which the Court
found that ‘it cannot uphold the Republic of Nicaragua’s claim
contained in its final submission I (3).’921922However, the
majority found that the inquiry must go beyond the formal
rejection of a submission. Building on the Court’s case law on
requests for interpretation of a judgment,923the majority
explained that there is a ‘requirement that the meaning of the
operative part of a judgment be ascertained through an
examination of the reasoning on which the operative part is
based.’924
In their joint opinion, the seven dissenting Judges invoked
another general principle of law, the ne bis in idem principle.
921 Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction),
supra n. 85, Joint Dissenting Opinion of Vice-President Yusuf,
Judges Cancado Trindade, Xue, Gaja, Bhandari, Robinson and
Judge ad hoc Brower, para 18 (hereinafter ‘Question of the Delimitation of
the Continental Shelf beyond 200 nm (Jurisdiction) (Joint Dissenting
Opinion)’).
922supra n. 69, p. 719, para 251. See also Question of the Delimitation of the
Continental Shelf beyond 200 nm (Jurisdiction) (Joint Dissenting Opinion),
supra n. 91, para 16.
85, para 75, citing Request for Interpretation of the Judgment of 15 June 1962 in the case concerning
the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment, ICJ Reports
2013, p. 306, para 68.
85, para 75.
According to these Judges:
The principle of ne bis in idem operates, like res judicata, to protect
from the effects of repeat litigation. According to this
principle, a repeat claim is inadmissible whether or not
the issue is covered by the principle of res judicata. One
cannot knock at the Court’s door a second time with
regard to a claim already examined by the Court on its
merits. The fact that Nicaragua would now be able to
present evidence that was not available to it during the
judicial proceedings that led to the 2012 Judgment does
not make the new claim less repetitive of the previous
claim.925
The ne bis in idem principle was not discussed in the 2016
Judgment, most likely because it was not invoked by Colombia
in its preliminary objections. However, the description of this
principle by the dissenting Judges raises the question of its
scope and its articulation with the res judicata principle. As
described in the joint opinion, the consequences seem similar.
It will be for the Court to clarify these questions in its future
jurisprudence.
As to the principle res judicata, the 2016 Judgment indicates
that its application is far from clear (as evidenced by the Joint
Dissenting Opinion). The 2016 Judgment should rekindle the
debate on this principle, which until the present has not caused
much diverse comments.
4 Unilateral Acts
Least well-known contribution of the Nicaragua cases to the

further understanding and development of international law
concerns unilateral acts of states. Some of the findings of the
ICJ in its 1984 and 1986 Judgments in the Nicaragua v. United
States case influenced in particular the work of the International
Law Commission of the United Nations on unilateral acts.
4.1 The 1984 Judgment and Unilateral Acts of States
In the Military and Paramilitary Activities in and against Nicaragua case, it
925Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction) (Joint Dissenting
Opinion), supra n. 91, para 60.
276 M. Fitzmaurice
was argued that Nicaragua ‘represented to the United States
that it was not itself bound under the system of the Optional
Clause’ and that, therefore, ‘Nicaragua [was] estopped from
invoking compulsory jurisdiction under that clause against the
United States.’926In relation to argument, the ICJ explained that
‘estoppel may [only] be inferred from the conduct, declarations
and the like made by a State’ if that they had caused another
State or States, in reliance on such conduct, detrimentally to
change position or suffer some prejudice.’
In the commentaries of the ‘Guiding Principles Applicable to
Unilateral Declarations of States Capable of Creating Legal
Obligations’, the ILC expressly referred to this passage of the
1984 Judgment in order to explain what constitutes an
arbitrary withdrawal of a unilateral act.927
4.2 The 1986 Judgment and Unilateral Acts of States
The 1986 Judgment also influenced the work of the ILC. This
Judgment contains a statement concerning the resolution of 23
June 1979 and the pledge of free elections by letter of 12 July
1979 from the Junta of the Government of National Recon-
struction of Nicaragua,928which might be considered as
927Paragraph 3 of the commentary to Guiding Principle 10,
YbILC 2006, Vol. II, Part Two, p. 166.
928The resolution reads as follows: ‘Moreover, the Junta made
it plain in one of these documents that its invitation to the
Organization of American States to supervise Nicaragua’s
political life should not be allowed to obscure the fact that it
was the Nicaraguans themselves who were to decide upon and
conduct the country’s domestic policy. The resolution of 23
June 1979 also declares that the solution of their problems is a
matter ‘exclusively’ for the Nicaraguan people, while stating
that that solution was to be based (in Spanish, deberia inspirarse) on
certain foundations which were put forward merely as
recommendations to the future government. This part of the
resolution is a mere statement which does not comprise any
formal offer which if accepted would constitute a promise in
unilateral acts originating legal obligations. The Court, 929
however, disagreed that there was either in relation to the

resolution, ‘a promise in law, and hence a legal obligation’; or
in relation to the letter of the promise of free elections
‘commitment was of a legal nature’. It is a well-known
phenomenon in international law that under very well-defined
circumstances, unilateral acts by States can create legal
obligations.930Such an event is very rare and has a numerous
conditions set by the Court in classic case of Nuclear Tests make
almost impossible for States to fulfil all requisite conditions 931:
Declarations of this kind may be, and often are, very
specific. When it is the intention of the State making the
declaration that it should become bound according to its
terms, that intention confers on the declaration the
character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct
consistent with the declaration.
An undertaking of this kind, if given publicly, and with an
intent to be bound, even though not made within the
context international negotiations, is binding. In these
circumstances, nothing in the nature of a quid pro quo nor any
subsequent acceptance of the declaration, nor even any
reply or reaction from other States, is required for the
declaration to take effect, since such a requirement would
be inconsistent with the strictly unilateral nature of the
law, and hence a legal obligation. Nor can the Court take the
view that Nicaragua actually undertook a commitment to
organize free elections, and that this commitment was of a
legal nature. The Nicaraguan Junta of National Reconstruction
planned the holding of free elections as part of its political
programme of government, following the recommendation of
the XVIIth Meeting of Consultation of Foreign Ministers of the
Organization of American States. This was an essentially
political pledge, made not only to the Organization, but also to
the people of Nicaragua, intended to be its first beneficiaries.
But the Court cannot find an instrument with legal force,
whether unilateral or synallagmatic, whereby Nicaragua has
committed itself in respect of the principle or methods of
holding elections’ (see Nicaragua v. United States (Merits), supra n. 1, p.
110, para 231).
929"Nicaragua v. United States (Merits), supra n. 1, p. 132, para 261.
930For recent studies on unilateral acts of States: Kassoti ( 2015)
and Saganek (2015).
931Nuclear Tests (Australia v. France; New Zealand v. France), Judgments, ICJ Reports 1974,
respectively pp. 267-270, paras 43-52 and pp. 472, paras 46-55.
278 M. Fitzmaurice
juridical act932by which the pronouncement by the state
was made.
The Court further stated that the question of form such an
act is of no importance. The Court emphasised that the
declarations made the France were erga omnes and the were
made ‘in relation to the tests which constitute the very object
of the present proceedings, although France has not appeared
in the case’933and that ‘[t]he Court finds that the French
Government has undertaken an obligation of the precise
nature and limits of which must be understood in accordance
with actual terms in which they were publicly expressed’.934The
Court also stressed that the statements were made by the
President of France. Obligations derived from unilateral acts
are based on good faith. Since the Nuclear Test cases there were
several cases in which States attempted to rely on legal
obligations derived from unilateral acts, in majority of cases
however, without a success.935
Guiding Principle 3 of the ILC ‘Guiding Principles Applicable
to Unilateral Declarations of States Capable of Creating Legal
Obligations’ was inspired by paragraph 53 of the Nuclear Tests
Cases, taking into consideration, inter alia, the 1986 Judgment
case.
3. To determine the legal effects of such declarations, it is
necessary to take account of their content, of all the
factual circumstances in which they were made, and of
the reactions to which they gave rise.936
In the Commentary to this Guiding Principle, the
Commission has noted particular importance of taking into
account of the context and circumstances in which the
declarations were made. The Commission stated that ‘[i]n the
Military and Paramilitary Activities in and against Nicaragua and Frontier Dispute

933Ibid., p. 269, para 50.
934104Ibid, p. 270, para 51.
93505See e.g. Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, ICJ Reports 1986, pp. 573-
4, paras 39-40; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Reports 2006, p. 28,
para 49 and Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of 8 April 1993, ICJ
Reports 1993, pp. 16-18.
936106YbILC 2006, Vol. II, Part Two, p. 162.
cases, the Court found nothing in the content of the
declarations cited or the circumstances in which they were
made “from which it [could] be inferred that any legal
undertaking was intended to exist”.’937
5 Conclusions
This Chapter presents only a very general overview of the

invaluable contribution and the impact of cases in which
Nicaragua participated before the International Court of
Justice. As it was several times indicted throughout this
Chapter, many cases with the participation of Nicaragua
questioned the existing legal perceptions of fundamental
institutions of international law, including its sources. The
relationship between and ascertainment of two elements of
customary international law (practice and opinio juris) has had a
revival (initial debate of which was initiated by the 1986
Judgment). The heritage of this Judgment is clearly seen in the
ILC project on the Identification of customary international
law. It may be said this area of international law is undergoing
its renaissance in scholarly writings. However, there is no
indication that at the foreseeable future the diverse debate will
lead to tangible results, as views are very fragmented and in
many cases irreconcilable and diametrically opposed. The
judgments of other international courts and tribunals also
develop customary international law and their contribution
cannot be underestimated. Such a variety of judicial
approaches add to the general lack of cohesion and confusion.
Be as it may, there is no doubt that the contribution of 1986
Judgment to the further crystallisation and understanding of
sources of international law is significant and of a great
importance. The Judgment had revolutionised approaches to
the identification of customary international law and became a
very fertile ground for the continuing academic debate. This is
the most well-known contribution to international law by
937107Paragraph 1 of the commentary to Guiding Principle 3,
ibid.
280 M. Fitzmaurice
Nicaragua. However, in relation to other sources, such as
general principles of law and unilateral acts, the Nicaragua cases
have also made valuable contributions. It may be said that all
these cases had resulted in contentious Judgments, challenged
by many scholars. It, however, only has enhanced the
significance and importance of Nicaragua’s contribution to
development of international law.
References
Benivisti E (2004) Customary international law as a judicial tool
for promoting efficiency. In: Kirsch M (ed) The impact of
international law international cooperation. CUP, Cambridge,
pp 85-116
Bordin FL (2014) Reflections of customary international law:
the authority of codification conventions and ILC draft
articles on international law. ICLQ 63:535-567
Charlesworth H (1984-1987) Customary international law and
the Nicaragua case. AYbIL 11:2-32
Charlesworth H (1998) The unbearable lightness of customary
international law. ASIL Proc 92:44-47
Charney JL (1988) Customary international law in the
Nicaragua case. Judgment on merits. Hague YbIL 18:16-29
Crawford JR (2012) Military and paramilitary activities in and
Czaplinski W (1989) Sources of international law in the
Nicaragua case. ICLQ 38:151-166
D’Amato A (1985) Nicaragua and international law: the
“Academic” and the “Real”.
http://scholarlycommons.law.northwestern.edu/cgi/viewcont
ent.cgi?article=1134&context=facultyworkingpapers.
Accessed 7 Nov 2016
D’Amato A (1987) Trashing customary international law. AJIL
81:101-105
Jennings R (1982) The identification of international law. In:
Cheng B (ed) International law: teaching and practice.
Stevens, London, pp 3-9
Kassoti E (2015) The juridical nature of unlateral acts of states
in international law. Brill/Nijhoff, Leiden/Boston
Kirgis F (1987) Custom on a sliding scale. AJIL 81:146-151
Kolb R (2003) Selected problems in the theory of customary
international law. NILR 50:119-150 Lang C (1990) L’affaire
Nicaragua/Etats-Unis devant la Cour internationale de Justice.
LGDJ, Paris
Lepard B (2010) Customary international law: a new theory
with practical applications. CUP, Cambridge
Mendelson M (1989) The Nicaragua case and customary
international law. Coexistence 26:85-99 Meron T (1998) War
crimes law comes of age. Clarendon, Oxford
Pax TJ (1985) Nicaragua v. United States in the International
Court of Justice: compulsory jurisdiction of just compulsion?
Boston Coll Int Comp Law Rev 8:471-515 Roberts A (2001)
Traditional and modern approaches to customary international
law: a reconciliation. AJIL 95:757-791
Saganek P (2015) Unilateral acts of states in public
international law. Brill/Nijhoff, Leiden/Boston Schlutter B
(2010) Developments in customary international law. Theory
and practice of the International Court of Justice and the
International ad hoc Tribunals for Rwanda and Yugoslavia.
Martinus Njihoff Publishers, Leiden/Boston Sender O, Wood M
(2015) The international court of justice and customary
international law: a reply to Stefan Talmon. EJIL: Talk!.
http://www.ejiltalk.org/the-international-court-of-justice- and-
customary-international-law-a-reply-to-stefan-talmon/.
Accessed 7 Nov 2016 Skubiszewski K (1971) Elements of
custom and the Hague Court. ZaoRV 31:810-854 Talmon S
(2015a) Determining customary international law: the ICJ’s
methodology between induction, deduction and assertion. EJIL
26:417-443 Talmon S (2015b) Determining customary
international law: the ICJ’s methodology and the idyllic world
of the ILC. EJIL: Talk!. http://www.ejiltalk.org/determining-
customary-international-law-the-icjs-methodology-and-the-
idyllic-world-of-the-ilc/#more-13882. Accessed 7 Nov 2016
Tasioulas J (1996) In defence of relative normativity:
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438
Professor Malgosia Fitzmaurice holds

a chair of public international law
at the Department of Law, Queen Mary University of London
(QMUL).
Customary Principle of Sovereignty of States in
the Nicaragua Case
Vaughan Lowe
Abstract Theconcept of sovereignty is fundamental to

international law, but vague and essentially contested. It is
more often inferred from its effects than directly addressed.
The Nicaragua cases in the 1980s saw the concept used exten-
sively, both by the United States (in the jurisdiction phase) and
by Nicaragua (on the merits). The International Court linked
the concepts of ‘respect for State sovereignty’, sovereign
equality, non-intervention and the prohibition on the use of
force, but seems to have regarded sovereignty as an axiomatic
principle, bound to the notion of the ‘personality’ of a State.
Contents
1 The Uncertain Meaning of ‘Sovereignty’...................................................................................... 270
2 Exposition of ‘Sovereignty’........................................................................................................... 272
3 The Nicaragua Cases: Sovereignty as Juridical Equality........................................................ 273
4 The Nicaragua Cases: Sovereignty as Respectfor the‘Personality’ of a State........................ 274
5 Concluding Remarks...................................................................................................................... 278
References......................................................................................................................................... 279
‘the fundamental principle of State sovereignty, on which

the whole of international law rests, and the freedom of
choice of the political, social, economic and cultural
system of a State.’ International Court of Justice, Nicaragua
v. United States, 1986
The topic on which I was asked to write has an almost
astronomical quality. In much the same way that astronomers
infer the existence of black holes from the
Vaughan Lowe is part of the legal team representing the Republic of Nicaragua in the following cases:
Territorial and Maritime Dispute (Nicaragua v. Colombia); Question of the Delimitation of the
Continental Shelf between Nicaragua and Colombia (Nicaragua v. Colombia); Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia); Delimitation in
the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the
Northern Part of Isla Portillos (Costa Rica v. Nicaragua). The views and opinions expressed in this
Chapter are those of the author and do not necessarily reflect the views and opinions of the Republic of
Nicaragua.
2
V. Lowe (*) 6
9
270 V. Lowe
Essex Court Chambers,
London, UK e-mail:
vlowe@essexcourt.net
9_11
Customary Principle of Sovereignty of States in the Nicaragua
Case 271
perturbations that they produce in the behaviour of stars, but
cannot actually see the black holes themselves, sovereignty is
a principle whose influence permeates international law but
which is itself practically impossible to see and to describe. In
its 1986 Nicaragua Judgment, the International Court referred to
‘the fundamental principle of State sovereignty, on which the
whole of international law rests, and the freedom of choice of
the political, social, economic and cultural system of a
State.’938That resounding phrase encapsulates what the
Nicaragua v. United States of America case was ‘about’: the right of the
Nicaraguan people to determine the future of Nicaragua,
without intervention or interference by outside States. Yet the
logic of the legal argument in the Judgment rests remarkably
lightly on the concept of sovereignty. The focus of this short
paper is on the contrast between the ‘fundamental' importance
of sovereignty and the slightness of its role in the Court's legal
reasoning.
‘Sovereignty' is one of the most frequently used terms in
international law; but, as a specifically legal concept, it is
difficult to define. Every international lawyer will surely know
Max Huber's classic statement in his award in the Island of Palmas
case:
Sovereignty in the relations between States signifies
independence. Independence in regard to a portion of
the globe is the right to exercise therein, to 939 the exclusion
of any other State, the functions of a State.
That elegant formula served well for the task that Huber
had before him: the determination of which of the disputing
States had sovereignty over the Island of Palmas. Weighing
the proven displays of sovereignty on the part of the claimant
States, he decided that the evidence showed that it was the
Netherlands that had established its sovereignty over the
island at the critical date. The formula provided a framework
for addressing the question of who was the sovereign; but it is
of much less help when the question is whether that
sovereignty has or has not been infringed by the acts of
938 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of
America) Judgment, ICJ Reports 1986, p. 133, para 263 (hereinafter ‘Nicaragua v. United States
(Merits)’).
939Island of Palmas case (Netherlands/USA), Award, 4 April 1928, RIAA, Vol. II, p. 838.
272 V. Lowe
another State. Put another way, Huber’s formula is, in truth,
more a description than a definition of sovereignty, and a
description tailored to the concerns of a particular context.
1 The Uncertain Meaning of ‘Sovereignty’
When one speaks of violations of sovereignty, the reference is

to acts that usurp the exclusive right of the sovereign State to
exercise the functions of a State in regard to a portion of the
globe. That much clearly follows from Huber’s formula. But
what are the functions of a State? And how does one
determine if they have been violated, or merely constrained or
affected by an act of another State? And what is the nature of
the relationship that must link those functions to a portion of
the globe?
These days it is easy to regard it as self-evident that
activities such as armed intervention and fomenting civil strife
in another State constitute violations of its sovereignty. But
sovereignty can be seen as an example of an essentially
contested concept.940What one can infer from it depends upon
what one puts into it. ‘Sovereignty’ is a concept that could
have been—and could yet be941—interpreted very differently
from the way that it was interpreted in the second half of the
twentieth century.
For instance, the reference to ‘functions of a State’ might be
understood to be implicitly limited to the ‘legitimate’ functions
of a State, so that if the government of State A were to
tolerate activities on its territory that are intended to and do
lead to violations of the rights of another State, that toleration
would not be a ‘function of the State’. It is then a short step to
the argument that if State B takes action, for example by
destroying a terrorist camp in State A from which attacks on
940See Gallie (1956), pp. 167-198; Besson (2004); Sarooshi (2004);

Lowe (2008), pp. 77-84.
941I am probably not alone in seeing in recent State practice
in relation to Syria, Libya and other States a rather more
flexible notion of respect for sovereignty than has been the
case in the past.
Case 273
State B or its allies are prepared and controlled, it is not
usurping ‘the functions of a State’— because State A is not
exercising any such functions, despite its obligation under
international law to prevent the use of its territory for such
purposes—and is therefore not violating the sovereignty of
State A. Indeed, something similar was claimed in relation to
the Israeli raid on Entebbe in 1976,942and has been asserted or
assumed on many occasions since.
To take another aspect of the Huber formula, may a State
assert that the preservation of its ‘independence in regard to a
portion of the globe’ will sometimes justify it in taking action
outside its own territory? The State B action mentioned above
would be an example; but the claim could go wider. It might
be said that a State’s sovereignty and independence is
threatened if its military facilities or personnel abroad are
threatened, as was the case in the 1986 Berlin discotheque
bombing and the responsive US air strikes on Libya;943and
some might argue that the principle extends beyond military
facilities and personnel to attacks on the State’s nationals or
economic interests. It is practically tautological to say that
powerful States generally have more, and more extensive,
interests overseas than do weaker States; and if these
arguments were accepted, one practical consequence of this
view of sovereignty and independence would (at least
arguably) be to allow a wider right to powerful States than is
enjoyed by weaker States, even if they were on the abstract
level bound by the same rules.
2 Exposition of ‘Sovereignty’
These examples, current around the time of the Nicaragua, show

that the concept of sovereignty is not easy to pin down and
does not have an unquestionable meaning. It may even lack
any incontestable core meaning. The international community
has from time to time tried to give a little more clarity and
certainty to the concept.944The UN Charter, having announced
942See, e.g., Ronzitti (1985), pp. 175-176.
943See, e.g., Beard (2001), p. 559.
944In addition to the examples given here, see e.g.: UNGA
Res. 1803 (XVII), on Permanent Sovereignty over Natural
274 V. Lowe
in Article 2(1) that the UN ‘is based on the principle of the
sovereign equality of all its Members’, then makes no further
use of the principle.945But the drafting sub-committee for the
Charter used the term ‘sovereign equality’ ‘on the assumption
and understanding that it conveys the following:
(1) That states are juridically equal;
(2) That they enjoy the rights inherent in their full sovereignty;
(3) That the personality of the state is respected, as well as its
territorial integrity and political independence;
(4) That the state should, under international order, comply
faithfully with its international duties and obligations.’ 946
Those components were taken up practically verbatim,
under the hearing ‘the principle of the sovereign equality of
States’ (and at several other points), in the 1970 Declaration
on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter
of the United Nations, UN General Assembly resolution 2625
(XXV). The section reads as follows:
The Principle of Sovereign Equality of States
All States enjoy sovereign equality. They have equal
rights and duties and are equal members of the
international community, notwithstanding differences of
an economic, social, political or other nature. In
particular, sovereign equality includes the following
elements:
(a) States are juridically equal;
(b) Each State enjoys the rights inherent in full sovereignty;
(c) Each State has the duty to respect the personality of
other States;
(d) The territorial integrity and political independence of the
State are inviolable;
(e) Each State has the right freely to choose and develop its
Resources (1962); UNGA Res. 2131 (XX), Declaration on the

Inadmissibility of Intervention in the Domestic Affairs of States
and the Protection of Their Independence and Sovereignty
(1965); UNGA Res. 50/172, Respect for the principles of
respect for national sovereignty and non-interference in the
internal affairs of States in their electoral processes (1996).
945Though sovereign equality is mentioned again in Article 78
of the Charter.
946Quoted in Simma et al. (3rd ed. 2012), pp. 145-146. This
text gives an excellent account of the drafting of Article 2 of
the Charter.
Casepolitical, social, economic and cultural systems; 275
(f) Each State has the duty to comply fully and in good faith
with its international obligations and to live in peace with
other States.
The two core ideas—juridical equality, and respect for the
‘personality’— prefigure the Court’s great statement on State
sovereignty quoted at the head of this chapter. The question
is, how did they fare in the Nicaragua litigation in the 1980s?
3 The Nicaragua Cases: Sovereignty as Juridical Equality
On one level, the case concerning Military and Paramilitary Activities in

and Against Nicaragua, brought by Nicaragua against the United
States in 1984, was a striking expression of the principle of
sovereignty, and more specifically of the sovereign equality of
States. At that time the United States appeared to be the one
undisputed superpower influencing international relations right
across the globe. But the United States was required, despite
its vigorous objections, to appear before the International
Court of Justice to respond to the Application filed by
Nicaragua, one of the smaller States in the world and among
the poorest in the western hemisphere. The United States was
obliged to justify its actions in relation to its intervention in the
conflict in Central America, and its patent hostility to the
Government in Nicaragua. The principle of the sovereign
equality—the juridical equality—of States was vindicated with
unusual clarity.
The Court was widely considered to have side-stepped the
issue when it had been seised in the previous decade of a case
involving the security interests of a major State, in the Nuclear
Tests cases. Faced with the possibility of having to order France
to abandon its atmospheric nuclear weapons tests in the
Pacific, with little chance of France accepting such an order if it
was contrary to French interests, the Court held, in a much-
criticised judgment, that certain French statements of intention
to cease such tests after that cycle had rendered the case
moot. But in the Nicaragua case the Court grabbed the bull by
the horns. It took the case, treated Nicaragua and the United
States as juridically equal parties before it, and decided the
276 V. Lowe
case according to law.
In the first phase of the case, concerned with questions of
jurisdiction and admissibility, it was the United States that
made most use of the appeal to sovereignty and sovereign
equality. Noting that the US acceptance of the Court’s
jurisdiction was, in its own terms, terminable on 6 months’
notice, whereas Nicaragua’s acceptance of the Court’s
jurisdiction prescribed no such period of notice and was
implicitly terminable without notice, the United States
contended that ‘the principles of reciprocity, mutuality and
equality of States before the Court permit the United States to
exercise the right of termination with the immediate effect
implicitly enjoyed by Nicaragua.’947The Court robustly rejected
that argument, affirming that each State was free to frame its
acceptance of the Court’s jurisdiction as it wished; but having
done so, the State was bound by the terms that it had chosen
to use.948The United States had chosen to maintain its
Declaration in force for 6 months after any notice of
termination: Nicaragua had not. The positions of the two
States were different; and the United States had to accept the
consequences of its choice. That was the end of the matter.
4 The Nicaragua Cases: Sovereignty as

Respect for the ‘Personality’ of a State
The use of sovereignty as a basis for substantive, rather than

procedural, rights in the merits phase of the Nicaragua case was,
however, an altogether more muted affair. The case filed
against the United States was one of three initiated by
Nicaragua during the 1980s. The other two were the Border and
Transborder Armed Actions cases filed against Costa Rica and against
Honduras respectively in 1986. Together the three cases
provide an interesting case history in the use of the principle of
‘sovereignty’ in the International Court; and in all of them
947Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of
America), Preliminary Objections, Judgment, ICJ Reports 1984, p. 417, para 55 (hereinafter
‘Nicaragua v. United States (Jurisdiction)’).
948Nicaragua v. United States (Jurisdiction), pp. 418-420, paras 59-63.
Case 277
‘sovereignty’ plays only a modest role.
In the case against the United States, Nicaragua asked the
Court
[...] to adjudge and declare as follows:
(a) That the United States, in recruiting, training,
arming, equipping, supplying and otherwise encouraging,
supporting, aiding and directing military and paramilitary
actions in and against Nicaragua has violated and is
violating its express charter and treaty obligations to
Nicaragua [...] [under the UN Charter, the Charter of the
Organization of American States, the Convention on
Rights and Duties of States, and the Convention
concerning the Duties and Rights of States in the event of
Civil Strife.]
(b) That the United States, in breach of its obligation
under general and customary international law, has
violated and is violating the sovereignty of Nicaragua by:
- armed attacks against Nicaragua by air, land and sea;
- incursions into Nicaraguan territorial waters;
- aerial trespass into Nicaraguan airspace;
- efforts by direct and indirect means to coerce and
intimidate the Government of Nicaragua.
(c) That the United States, in breach of its obligation
under general and customary international law, has used
and is using force and the threat of force against
Nicaragua.
(d) That the United States, in breach of its obligation
intervened and is intervening in the internal affairs of
Nicaragua.
(e) That the United States, in breach of its obligation
infringed and is infringing the freedom of the high seas
and interrupting peaceful maritime commerce.
[...]
(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;
Casefrom all violations of the sovereignty, territorial integrity
278
or political independence of Nicaragua, including all
intervention, direct or indirect, in the internal affairs of
Nicaragua;
The structure of that Nicaraguan prayer for relief is

significant. Its successive subparagraphs distinguished
between what Nicaragua’s counsel, Professor Ian Brownlie,
called the different ‘causes of action’ or the ‘individual heads of
claim’ put forward by Nicaragua.949950It is evident that the
violation of Nicaragua’s sovereignty (subparagraph b) was
regarded as a matter that was legally distinct from the threat
or use of force against Nicaragua (subparagraph c) and from
breach of the duty of non-intervention in the internal affairs of
Nicaragua (subparagraph d).
The distinction was spelled out by Nicaragua in its oral
submissions. It was said that
[...] the most traditional and certainly the most
comprehensive cause of action consists of the category of
violations of the sovereignty of Nicaragua. Whilst many
serious violations of the sovereignty of a State entail the
use of force, this is by no means a necessary condition of
responsibility. Indeed, the indispensable condition for this
type of illegality is the actual exercise of some sovereign,
that is State, function, within the sphere of sovereignty of
another State, including its territorial sea and air space,
without that State’s consent.
[...]
A particular characteristic of this cause of action is that
it generates responsibility without proof of actual damage
or loss. Or, to express the matter differently, the intrusion
or usurpation of the jurisdictional sovereignty of the
applicant State is itself a delict, and a duty of reparation
arises even apart from proof of material damage, harm to
citizens, or economic loss.951
A similar distinction was evident in the Applications filed by
Nicaragua against Costa Rica and Honduras shortly afterwards.
In the Application against Costa Rica, Nicaragua referred to
intervention using armed force and also to the ‘threat against
the personality of Nicaragua or against its political, economic
949Application of the Republic of Nicaragua, 9 April 1984, para

26.
17
See,Pleadings,
e.g., Nicaragua v. Costa Rica, Memorial of Nicaragua, 10 August
950ICJ Case concerning Military and Paramilitary Activities in and Against Nicaragua
1987, chs
(Nicaragua III,States
v. United IV,ofVI; Memorial
America), Vol. V, p. 225.
951Ibid.
of Nicaragua (Merits), 30 April 1985, ICJ Pleadings, Case concerning Military
and Paramilitary
Activities In and Against Nicaragua (Nicaragua v. United States of America), Vol. IV, ch VII.
Case 279
or cultural elements’;952and in the Application against
Honduras, Nicaragua separated out breaches of the
prohibitions on intervention in the internal affairs of another
State, and on the use of force, and on the violation of the
sovereignty of another State.953So, too, in Nicaragua’s written
pleadings, the claim based on a violation of sovereignty was a
topic distinct from the claims based on the prohibitions on
intervention, on uses of armed force, and so on. 954
In abstract terms, the principle of sovereignty lay at the
heart of Nicaragua’s cases. The uses of armed force, and the
instances of intervention, and the mining of access
9525Application of the Republic of Nicaragua, 25 July 1986,

paragraph 16. The ICJ website gives the date of the
Application as 28 July 1986. The document itself is dated 25
July 1986.
953Application of the Republic of Nicaragua, 25 July 1986, ICJ
Pleadings, Case concerning Border
954and Transborder Armed Actions (Nicaragua
v. Honduras). Again, the ICJ
website gives the date of the Application as 28 July 1986. The
document itself is dated 25 July 1986.
280 V. Lowe
routes to Nicaraguan ports, and the killings and abductions of
Nicaraguan citizens, all of which were set out in painful detail,
were instances of a more fundamental problem. The United
States, and some of Nicaragua’s neighbours, did not want a
Sandinista State in Nicaragua. The armed attacks and
interventions in Nicaragua’s internal affairs were ways of
undermining the Sandinista Government: each act was
unlawful and objectionable in its own right, but was brought
before the Court in the context of a complaint about a
wholesale attempt to overthrow the Government in Nicaragua.
It was a perfect context in which the concept or principle of
sovereignty could be deployed in relation to threats to ‘the
personality of Nicaragua.’ Yet neither the Court nor Nicaragua
put great weight upon the principle.
The cases against Costa Rica and Honduras were
discontinued before a judgment was rendered on the merits;
but the case against the United States resulted in one of the
great judgments of the Court, notable both for its analysis and
for the firmness and clarity with which it affirmed and applied
the law. The Court, quoting its Judgment in the Corfu Channel
case, said that ‘[b]etween independent States, respect for
territorial sovereignty is an essential foundation of
international relations’, and that the principle of non-
intervention was ‘a corollary of the principle of the sovereign
equality of States’, noting that intervention would ‘from the
nature of things, [ . . . ] be reserved for the most powerful States,
and might easily lead to perverting the administration of
international justice itself.’955The reference to the position of
the most powerful States appears to point again to the
juridical equality of sovereign States and to emphasize that
Nicaragua has the same right to be free of foreign intervention
as does the United States.
The Court went on to ‘mention the principle of respect for
State sovereignty’, which it said was ‘expressed in, inter alia,
Article 2, paragraph 1 of the United Nations Charter,’ and
‘closely linked with the principles of the prohibition of the use
of force and of non-intervention.’956The Court thus linked
955Nicaragua v. United States (Merits), p. 106, para 202.
956Nicaragua v. United States (Merits), p. 111, para 212. Article 2(1) of
Case 281
‘respect for State sovereignty’, sovereign equality, non-
intervention and the prohibition on the use of force. When it
came to the application of customary international law to the
facts of the case, the Court analysed the position in
considerable detail in relation to the non-use of force, 957and
non-intervention.958The discussion of the claim that the United
States ‘has violated and is violating the sovereignty of
Nicaragua’, in contrast, was very brief.959
The Court noted that the Nicaraguan Memorial listed under
the heading of ‘violations of sovereignty’ only attacks on
Nicaraguan territory, incursions into its territorial sea, and
overflights.960It noted that those actions amounted to breaches
of the principle of the non-use of force, and also constituted
violations of Nicaragua’s sovereignty. The claim based on
violation of sovereignty was, in effect, subsumed within the
claim based on the non-use of force: ‘[t]he 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’, as the Court put it. 961
The Court also referred to Nicaragua’s claim regarding
United States ‘efforts by direct and indirect means to coerce
and intimidate the Government of Nicaragua’, observing that it
was presented in the Memorial under the heading of the threat
or use of force and that ‘[accordingly, that aspect of
Nicaragua’s claim will not be pursued further.’962The implication
seems to be that the legality of indirect efforts to coerce and
intimidate Nicaragua was also a question subsumed within the
analysis of the prohibition on the use of force. It might,
however, be thought that non-intervention was the more
appropriate principle to subsume such indirect efforts, and that
respect for the ‘personality’ of the State was the more
appropriate aspect of sovereignty to be considered. But Court
the UN Charter states ‘[t]he Organization is based on the
principle of the sovereign equality of all its Members.’
957Ibid, pp. 118-123, paras 227-238.
958Ibid, pp. 123-127, paras 239-249.
959Ibid., pp. 127-129, paras 250-253.
960Ibid., p. 128, para 250.
961Ibid., para 251.
962Ibid., para 250.
282 V. Lowe
did not consider that possibility in its Judgment. Indeed, there
is no analysis of the overlap between the applicability of
principles of non-intervention and of respect for sovereignty,
parallel to the (very brief) analysis of the overlap with the non-
use of force. After a brief examination of ‘another aspect of
the legal implications of the mining of Nicaragua’s ports’, which
was held to constitute an ‘infringement, to Nicaragua’s
detriment, of the freedom of communications and maritime
commerce’,963the Court left the question of the principle of
respect for sovereignty and moved on. It is as though a piece
of the jigsaw is missing.
The Court did come close to addressing the question of
indirect coercion and respect for the personality of the State,
but in a different context. One section of the Judgment
addressed the question ‘whether there is anything in the
conduct of Nicaragua which might legally warrant counter-
measures by the United States.’964The question was not
whether any of Nicaragua’s rights had been violated, but
whether the United States might have been able to defend
acts that were prima facie unlawful on the basis of a right to take
proportionate counter-measures against a breach of a legal
obligation by Nicaragua. The Court examined the possibility
that Nicaragua had breached a commitment to organize free
elections, but found that Nicaragua had made no legally-
binding international commitment of that kind and that even if
it had, it would not have justified the United States’ actions. 965
There then follows a section in the Judgment that is of
much interest. Referring to a finding by the US Congress that
the Nicaraguan Government had taken ‘significant steps
towards establishing a totalitarian Communist dictatorship’, the
Court said:
However the regime in Nicaragua be defined, adherence
by a State to any particular doctrine does not constitute a
violation of customary international law; to hold
otherwise would make nonsense of the fundamental
principle of State sovereignty, on which the whole of
international law rests, and the freedom of choice of the
political, social, economic and cultural system of a State.
963Ibid, p. 129, para 253.
964 Ibid., p. 130, para 257.
21
965Ibid., pp. 132-133, paras 261-262.

Case
[...] The Court cannot contemplate the creation of a new283
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.966
The statement is remarkably robust. The Court appears to
be saying that the principle of State sovereignty has something
like a jus cogens status. It is not simply that there is no rule
opening up a right of ‘ideological intervention’:967there cannot be
such a rule. State sovereignty is axiomatic; and customary
international law cannot generate rules that contradict axioms
of the international legal system.
The critical question is, of course, how one determines the
scope of the ‘freedom of choice of the political, social,
economic and cultural system of a State.’ The Court specifically
held that ‘State sovereignty evidently extends to the area of its
foreign policy, and [ . . . ] there is no rule of customary
international law to prevent a State from choosing and
conducting a foreign policy in co-ordination with that of
another State.’968And it held that the level of armaments of a
sovereign State is also a matter for that State to decide,
subject to any rules that may have been accepted by the
State.969But for the rest, it seems that the scope of State
sovereignty remains a matter for debate.
In this oblique way, the Court appears to have recognized
Nicaragua’s right to ‘respect for its personality’ as a sovereign
State. Similarly, the Court held, in the dispositif, that the mining
of Nicaraguan ports by the United States violated Nicaragua’s
sovereignty. It also indicated how the mining engaged
Nicaragua’s sovereignty:
The laying of mines within the ports of another State is
governed by the law relating to internal waters, which are
subject to the sovereignty of the coastal State. The
position is similar as regards mines in the territorial sea.
It is therefore the sovereignty of the coastal State that is
affected in such cases. It is also by virtue of its
sovereignty that the coastal State may regulate access to
its ports.970
966Ibid., p. 133, para 263.

967Ibid., p. 134, para 266.
968 Ibid., p. 133, para 265.
969Ibid., p. 135, para 269.
970Ibid., p. 111, para 213.
284 V. Lowe
The last sentence in that passage, which reads as if it were
an afterthought, points to the notion that a usurpation of the
right to regulate may constitute a violation of sovereignty.
That is a powerful idea, close to the demand that the
personality of Nicaragua be respected. While it was not
developed in the Judgment, it may yet become a key part of
the analysis of sovereignty.
The Nicaragua case concerned profound, existential questions

regarding Nicaragua’s sovereign statehood; and the Court
clearly recognized that it was dealing with fundamental
questions of State sovereignty. But in its Judgment it
articulated its analysis primarily in terms of corollaries of State
sovereignty, such as non-intervention, rather than in terms of
sovereignty itself. One practical reason for the Court’s
approach is that it reflected the way in which the case had
been pleaded. That in turn reflects a more basic point: that in
order to win a case, one must first create a case, in the sense
of
assembling a framework of facts to which the court can apply
the law. Courts do not make abstract pronouncements of law.
Even in advisory opinions, or when a court states apparently
general rules, there is at least an implicit factual paradigm
which the court’s pronouncements address. Establishing those
facts—or its version of the facts— is the overriding necessity
for a party before the court.
It is easier to demonstrate an attack, or a mining, or an
overflight than it is to demonstrate subversion or failure to
respect the sovereign rights of a State. Subversion is not so
much a fact as an inference from facts. In the Nicaragua case it
was perfectly natural that Nicaragua’s case should be
presented to the Court in terms of the concrete episodes that
evidenced the subversion of Nicaragua as a sovereign State.
But having done so, the Court then preferred to characterise
those episodes primarily as instances of violations of the
Case 285
principles of intervention and of the non-use of force. Brave
and bold as those findings were, behind them lurks an even
more powerful idea which may in future cases come closer to
the front of the stage.
References
Beard JM (2001) America’s new war on terror: the case for
self-defense under international law.
Harv J Law Public Policy 25:559-
590 Besson S (2004) Sovereignty in
conflict. EloP 8(15):1-50
Gallie WB (1956) Essentially contested concepts. Proc
Aristotelian Soc 56:167-198 Lowe V (2008) Sovereignty and
international economic law. In: Shan W, Simons P, Singh D
(eds) Redefining sovereignty in international economic law.
Bloomsbury, pp 77-84 Ronzitti N (1985) Rescuing nationals
abroad through military coercion and intervention on grounds
of humanity, Martinus Nijhoff
Sarooshi D (2004) The essentially contested nature of the
concept of sovereignty. Mich JIL 25:1107-1139
Simma B et al (2012) The Charter of the United Nation. A
commentary, vol 1, 3rd edn. Oxford
Vaughan Lowe QC,Essex Court Chambers, London. Emeritus

Professor of International Law and Emeritus Fellow of All Souls
College, University of Oxford.
The Law of State Responsibility
in the Nicaraguan Cases
Benjamin Samson and Tessa Barsac
Abstract The 1986 Judgment in the Military and Paramilitary Activities

in and against Nicaragua (Nicaragua v. United States of America) case is yet
again a key precedent in a field which constitutes one of the
cornerstones of international law: State responsibility. Mostly
known for its controversial contribution to the rules of
attribution of acts of private persons to a State, the 1986
Judgment also shaped the scope of certain circumstances
precluding wrongfulness. The Nicaragua v. United States case and
the recent proceedings concerning Certain Activities Carried Out by
Nicaragua in the Border Area (Costa Rica v. Nicaragua) have also raised
stimulating issues with regard to reparation.
Contents
1 Introduction.................................................................................................................................. 282
2 Attribution of Conduct to a State................................................................................................. 283
2.1............................................................................................................................................... Condu
ct of De Facto Organs of a State: The Complete Dependence Test........................................... 283
2.2............................................................................................................................................... Condu
ct Directed or Controlled by a State: The Effective Control Test.............................................. 285
2.3 Alternative Approaches of Attribution............................................................................. 291
Benjamin Samson was part of the legal team representing the Republic of Nicaragua in the following
cases: Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua);
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica); Question of
the Delimitation of the Continental Shelf between Nicaragua and Colombia (Nicaragua v. Colombia);
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia); Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and
Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua). The views and opinions
expressed in this Chapter are those of the author and do not necessarily reflect the views and opinions
of the Republic of Nicaragua. Special thanks to Vladyslav Lanovoy for his comments on an earlier draft.
The usual disclaimer applies.
B. Samson (*)
University Paris Nanterre, Paris, France
George Washington University Law School,
Washington, DC, USA e-mail:
benja.samson@gmail.com
T. Barsac
University of Paris Nanterre, Nanterre, France 2
University of Leiden, Leiden, 8
1
282 B. Samson and T. Barsac
The Netherlands e-mail:
t.barsac@gmail.com

9_12
3 Circumstances Precluding Wrongfulness....................................................................................... 293
3.1 Self-Defence......................................................................................................................... 293
3.2 Consent................................................................................................................................. 294
3.3 Counter-Measures................................................................................................................ 295
3.4 Other Justifications.............................................................................................................. 297
4 Reparation...................................................................................................................................... 298
4.1 Compensation....................................................................................................................... 298
4.2 Satisfaction........................................................................................................................... 300
5 Conclusion...................................................................................................................................... 301
References......................................................................................................................................... 302
1 Introduction
When one studies the law of State responsibility, the case

concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America) (hereinafter ‘Nicaragua v. United
States’) comes to mind almost immediately. Symbolically, this
case proved that ‘nul, en ce compris un “super-grand", n’est au-dessus de la
loi.’1For the first time, the then world’s unchallenged
superpower was indeed held responsible for acts contrary to
some of the most important rules of international law, i.e. the
prohibition of the threat or use of force and the principle of
non-intervention in the internal affairs of a State.971972
Legally, the Court’s findings in its 1986 Judgment have
undoubtedly helped developing the general law of State
responsibility on several issues. The most obvious of them is
that of attribution of acts of individuals to a State. Though it is
common to speak of ‘the Nicaragua test’,973the contribution of the
971Verhoeven (1987), p. 1238 (‘No one, including a “super-

power”, is above the law’—our translation). See also the
contribution by Pellet above.
972See Lang (1990), p. 1. See also the contribution by Schabas
below.
973See notably Prosecutor v. Dusko Tadic', ICTY Case No. IT-94-1-A,
Judgment, 15 July 1999, para 116 (hereinafter ‘Tadic' (Appeal
Judgment)’); Meron (1998), p. 237.
Judgment to the question of attribution is actually
twofold.974975Conspicuously, it formulated the test of ‘effective
control’ for entities under the direction and control of a State,
in the context of what would become Article 8 of the ‘Draft
Articles on Responsibility of States for Internationally Wrongful
Acts’ adopted by the International Law Commission in 2001
(hereinafter the ‘ILC Draft’). Discreetly, it set out as well the
test of ‘complete dependence’ for de facto organs of a State, and
in doing so exercised a ‘fonction de suppléance legislative’5in the
continuity of Article 4 of the ILC Draft.
974See notably Tadic (Appeal Judgment), supra n. 3, Separate and

Dissenting Opinion of Judge McDonald, pp. 295-296; Chiragov and
Others v. Armenia, ECHR Application No. 13216/05, 16 June 2015,
Concurring Opinion of Judge Motoc; Crawford (2013), p. 125, n.
73.
975Condorelli (2004), p. 305 (‘function of legislative
substitution’—our translation).
The Law of State Responsibility in the Nicaraguan Cases 284
These tests have been endorsed by several other bodies but
also criticised for being too stringent and creating an
accountability gap that the Court attempted to fill by using
alternative approaches.
Furthermore, the Nicaragua v. United States case, together with
the recent case concerning Certain Activities carried out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua) (hereinafter ‘Certain Activities'), have
shed light on two other central aspects of State responsibility:
circumstances precluding wrongfulness and reparation.
Although less often discussed, the clarifications provided either
have already proved to be a source of influence or might well
have some bearing on future cases.
2 Attribution of Conduct to a State
The Nicaragua v. United States case centrally concerned the issue

whether breaches of international humanitarian law committed
by private individuals—the ‘contras'—during the Nicaraguan civil
war could be attributed to the United States. For this purpose,
the Court identified different forms of private conduct of
increasing specificity that could generate responsibility, from
the paramilitary campaign in general to violations in the course
of specific operations.976In its 1986 Judgment, the Court
developed not one but two different tests for attributing acts of
private persons to a State. They are known as the ‘complete
dependence test' (Sect. 2.1) and the ‘effective control test'
(Sect. 2.2). The Court's findings have unquestionably influenced
the development of the law on attribution but have also
created an accountability gap (Sect. 2.3).
2.1 Conduct of De Facto Organs of a State: The Complete

Dependence Test
The first test developed by the Court in this context went

8
America), Merits, Judgment, ICJ Reports 1986, p. 62, para 109 (hereinafter ‘Nicaragua
976Crawford
v. United (2013), p. 147.
States (Merits)’).
almost unnoticed despite its far-reaching impact.977It aimed at
answering the question
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. 8
977See however e.g. Eisemann (1986), pp. 179-180.

The set of clues examined by the Court included the
creation of the entity by the State, the selection, installation
and payment of its leaders, the direct and critical support in
the organization, training and equipping of the force, the
planning of operations, the choosing of targets, and more
generally the actual exercise of strict control.978In other words,
the prime consideration is whether the entity has any degree
of autonomy left in relation to the State.979The Court concluded
that
the evidence available [...] 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.980
Building upon this statement,981the 2007 Judgment in the case
concerning the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
(hereinafter ‘Bosnia v. Serbia' or ‘Genocide') crystallised the notion
of de facto organs, somewhere in between the institutional
criterion of Article 4 of the ILC Draft and the factual criterion
reflected in Article 8—the Court having insisted that the
category so unveiled was distinct from both.982Such continuity
renders the distinction among them difficult but whereas an
organ is an entity whose conduct gives rise per se to the
responsibility of the State as it becomes functionally part of the
latter,983the same cannot be said of the entities contemplated
under Article 8.984
While the complete dependence test did not capture the
ILC's attention, it was referred to as the ‘relevant international
law' by the ECHR985and notably employed by the Independent
978Ibid., pp. 62-63.
979Ibid., p. 64, para 114.
980 Ibid., para 110.
981Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, pp. 204-205, paras 391-393
(hereinafter ‘Bosnia v. Serbia (Merits)’).
982Ibid., p. 207, para 397; Pellet (2011), p. 125.
984Crawford (2013), p. 126.
985See e.g., Catan and Others v. Moldova andRussia, ECHR Applications
International Fact-Finding Mission on the Conflict in Georgia in
order to determine whether the use of force by South
Ossetians could be attributed to Russia.986
Applying such standard to non-state armed groups
operating transnationally is however problematic: ‘[f]irst, these
groups usually operate outside any recognised legal
framework. Second, it may be difficult to distinguish the official
conduct of such groups, even if ultra vires, from their operation in
a purely private capacity.’987This is particularly true today in the
context of terrorism ‘given that acts of terrorism carried out by
state organs will virtually always be in the form of covert
operations, carried out by secret service agents who do not
display any outward manifestation of the authority under which
they act.’988
Such circumstances are however of exceptional character
since ‘States are more likely to channel unlawful acts through
private actors which are actually operating outside the formal
or de facto framework of the State.’989
2.2 Conduct Directed or Controlled by a State: The Effective

Control Test
Even more debatable, and actually scrutinized, is therefore the

second test elaborated in the Nicaragua v. United States case for the
attribution of the violations committed by the contras in the
course of particular operations. The Court remarkably took the
view that
United States participation, even if preponderant or
Nos. 43,370/04, 8252/05 and 18,454/06, Judgment, 19
October 2012, para 76, quoting the passage of the Judgment
on the Merits in the Genocide case which relies on the Nicaragua v.
United States case.
986Report of the Independent International Fact-Finding
Mission on the Conflict in Georgia, Vol. II, September 2009, p.
260, however referring solely to the Genocide case.
987Lanovoy (2017), p. 576.
988Trapp (2011), p. 35.
989Lanovoy (2017), p. 576.
decisive, in the financing, organizing, training, supplying
and equipping of the contras, the selection of its military or
paramilitary targets, and the planning of the whole of its
operation, is still insufficient in itself, on the basis of the
evidence in the possession of the Court, for the purpose
of attributing to the United States the acts committed by
the contras in the course of their military or paramilitary
operations in Nicaragua. All the forms of United States
participation mentioned above, and even the general
control by the respondent State over a force with a high
degree of dependency on it, would not in themselves
mean, without further evidence, that the United States
directed or enforced the perpetration of the acts contrary
to human rights and humanitarian law alleged by the
applicant State. Such acts could well be committed by
members of the contras without the control of the United
States. For this conduct to give rise to legal responsibility
of the United States, it would in principle have to be
proved that that State had effective control of the military
or paramilitary operations in the course of which the
alleged violations were committed.990
These findings have undoubtedly set a precedent which is
both ground-breaking and flawed as the Court indulged in
peremptory affirmations without referring to any judicial or
State practice991—and with ‘good’ reason: there was no
supporting authority for its new test. Most notably, in the
codification process of customary rules regarding the
attribution to a State of private conduct, the ILC had at the
time not referred to the notion of control.992Nevertheless, the
1986 Judgment seems to have instantly crystallised such
custom since the notion of control was uncritically endorsed by
990 Nicaragua v. United States (Merits), supra n. 8, pp. 64-65, para 115.
1
991See further Cassese (2007), p. 654.

992See Draft articles on State responsibility: texts adopted by
the Drafting Committee—title of chap. II and articles 7-9, YbILC
1974, Vol. I, pp. 152-153, Article 8: ‘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 person or group of persons was in
fact acting on behalf of that State; or
(b) such person or group of persons was in fact exercising
elements of the governmental authority in the absence of
the official authorities and in circumstances which justified
the exercise of those elements of authority’.
other international courts and tribunals,993as well as by the ILC
which accordingly redrafted Article 8 as it stands today, 994i.e.
The conduct of a person or group of persons shall be
considered an act of a State under international law if the
person or group of persons is in fact acting on the
instructions of, or under the direction or control of, that
State in carrying out the conduct.995
Subsequently, the ICJ did indeed confirm this formulation as
reflecting customary international law and affirmed that it had
to be understood in the light of its 1986 Judgment. 996
However, neither Article 8 nor its commentary997appears to
take a clear-cut position regarding the degree of control
necessary for the purpose of attribution. While the Special
Rapporteur on State responsibility had recommended clarifying
the draft to cover effective control,998the debate within the ILC
drew attention to the existence of ‘varying degree of sufficient
control required in different specific legal contexts.’999In fact,
993See notably Tadic (Appeal Judgment), supra n. 3, para 117

quoted below, subscribing to the notion of control and only
questioning the required degree of control.
994Crawford, Special Rapporteur, First report on State
responsibility, UN Doc. A/CN.4/490, YbILC 1998, Vol. II, Part One,
p. 40, paras 198 ff (hereinafter ‘Crawford, First report’); Report
of the International Law Commission on the work of its 50th
session (1998), UN Doc. A/53/10, YbILC 1998, Vol. 2, Part Two, p.
81, para 376, and pp. 83-84, paras 394-395, 406 (hereinafter
‘1998 ILC Report’).
995Text annexed to UNGA Res. 56/83, 12 December 2001,
definitively adopting Article 8 of the Draft articles provisionally
adopted by the Drafting Committee: articles 1, 3, 4 (Part One,
Chapter I), 5, 7, 8, 8 bis, 9, 10, 15, 15 bis and A (Chapter II),
YbILC 1998, Vol. I, p. 288.
996 Bosnia v. Serbia (Merits), supra n. 12, pp. 207-208, paras 398-
21
399.
997See however Lanovoy (2017), p. 576.
998 1 99 8 ILC Report, supra n. 27, p. 81, para 376.
999Ibid., p. 83, para 395. See further YbILC 2001, Vol. II, Part
One, p. 49 (footnotes omitted): ‘The Netherlands is pleased to
note that the words ‘direction or control’ allow for the
the Nicaragua test has led to one of the most famous normative
application of both a strict standard of ‘effective control’, as

used by the ICJ in the Military and Paramilitary Activities in and against Nicaragua
case, and a more flexible standard as applied by the Appeals
Chamber of the International Tribunal for the Former
Yugoslavia in the Tadic case. This inbuilt ambiguity is a positive
element and offers scope for progressive development of the
legal rules on State responsibility. ’
conflict among international courts and tribunals, causing a
major rift between general and investment law on one side—
sticking to the effective control standard—and criminal and
human rights law1000on the other side(s)—adopting lower
thresholds.
Espousing the 1986 Judgment, investment tribunals have
accordingly underlined that:
International jurisprudence is very demanding in order to
attribute the act of a person or entity to a State, as it
requires both a general control of the State over the
person or entity and a specific control of the State over
1000See in particular Loizidou v. Turkey, ECHR Application No.
15318/89, Judgement, 18 December 1996, para 56, referring
to a test of ‘effective overall control’ and Ilagcu and Others v. Moldova and
Russia, ECHR Application No. 48787/99, Judgment, 8 July 2004,
para 315: ‘It is not necessary to determine whether a
Contracting Party actually exercises detailed control over the
policies and actions of the authorities in the area situated
outside its national territory, since even overall control of the
area may engage the responsibility of the Contracting Party
concerned’. Subsequent decisions nevertheless reverted to the
expression ‘effective control’ (see e.g., Mozer v. The Republic of Moldova
and Russia, ECHR Application No. 11138/10, Judgment, 23
February 2016, para 101) and removed any ambiguity as to
the ambit of the ECHR standard which actually has no bearing
on the law of State responsibility (and thus goes beyond the
scope of the present contribution), see outstandingly Mozer, ibid.,
para 102: ‘The Russian Government submitted an argument
based on the ICJ Bosnian Genocide case [...] and the case of Nicaragua v.
the United States of America [...]. In these cases, the ICJ was concerned
with determining when the conduct of a group of persons
could be attributed to a State, with the result that the State
could be held responsible under international law for that
conduct. In the instant case, however, the Court reiterates that
it is concerned with a different issue, namely whether the facts
complained of by the applicant fall within the jurisdiction of a
respondent State within the meaning of Article 1 of the
Convention. As the Court has already found, the test for
the act the attribution of which is at stake; this is known
as the “effective control” test.1001
Actually, the test might be too demanding. The critics of the
Tadic Judgment in that respect are particularly enlightening.
Whereas the ICTY validated the effective control test with
regard to acts performed by single individuals or unorganised
groups, it expressly criticized its rigid and uniform application
by the Court in the case of organized and hierarchically
structured ones, such as military or paramilitary groups.1002It
admitted that
The requirement of international law for the attribution to
States of acts performed by private individuals is that the
State exercises control over the individuals. The degree of
controlmay, however, vary according to the factual
circumstances of each case. The
Appeals Chamber fails to see why in each and every
circumstance international law should require a high
threshold for the test of control.100310041005
establishing the existence of ‘jurisdiction’ under Article 1 of the

Convention has never been equated with the test for
establishing a State’s responsibility for an internationally
wrongful act under international law.’
1001Jan de Nul NV and Dredging International NV v. Egypt,ICSID Case No
ARB/04/13, Award, 6 November 2008, para 173 (emphasis
added), and see n. 17 in the original quoting Nicaragua v. United States
(Merits), supra n. 8, paras 113 and 115. See also Gustav F Hamester
GmbH and Co KG v. Ghana, ICSID Case No ARB/07/24, Award, 18 June
2010, para 179; White Industries Australia Ltd. v. India, IIC 529 (2011),
Final Award, 30 November 2011, paras 8.1.11-8.1.18; Electrabel SA
v. Hungary, ICSID Case No ARB/07/19, Award, 25 November
2015, para 7.69.
1002Tadic (Appeal Judgment), supra n. 3, in particular paras 124
and 137. See also Cassese (2007), p. 649.
1003Ibid., para 117 (emphasis in the original). See also in
favor of a differentiated approach Bosnia v. Serbia (Merits), supra n.
12, Dissenting Opinion of Vice-President Al-Khasawneh, p. 255,
para 37 and Dissenting Opinion of Judge ad hoc Mahiou, pp. 447-
449, paras 114-117.
1004Tadic (Appeal Judgment), supra n. 3, para 120.
The Tribunal then held that it was ‘sufficient to require that the
group as a whole be under the overall control of the State’ in
order to engage the responsibility of the latter for its
activities,35‘whether or not each of them was specifically imposed, requested or
directed by the State.’36In doing so, it underlined that the rationale
behind Article 8 of the ILC Draft
is to prevent States from escaping international
responsibility by having private individuals carry out tasks
that may not or should not be performed by State
officials, or by claiming that individuals actually
participating in governmental authority are not classified
as State organs under national legislation and therefore
do not engage State responsibility. In other words, States
are not allowed on the one hand to act de facto through
individuals and on the other to disassociate themselves
from such 100610071008100910101011
conduct when these individuals breach interna-
tional law.
Implicitly, the Tribunal accused the Court of creating an
accountability gap.
Nevertheless, neither test has elicited unanimity and this
frontal opposition was sealed outside the judicial arena: while
the practice of some UN bodies seems to have rallied to the
1006Ibid., para 117.

1007See in particular the Report of the Working Group on
Arbitrary Detention, 28 December 1999, E/CN.4/2000/4, paras
14-15, underlining that ‘[f]ar from being rigid, [the applicable]
criteria are evolving’ and accordingly presenting the Nicaragua
Judgment as the ‘third stage’ of this development before
concluding that the Tadic test represented the criteria finally
endorsed by international law. See further in this sense
Cassese (2007), p. 659.
1008See in particular the Report of the Independent
International Fact-Finding Mission on the Conflict in Georgia,
Vol. II, September 2009, p. 260.
1009Speech by H.E. Judge Gilbert Guillaume, President of the
International Court of Justice, to the
1010Sixth Committee of the General Assembly of the United
Nations, ‘The proliferation of interna
1011tional judicial bodies: The outlook for the international
41
Ibid., para
legal order’, 27 October 2000.
50.
Tadictest,38EU sponsored reports have unequivocally adhered to
the 1986 Judgment.39
Such ‘fragmentation’ alarmed the ICJ. Its President,
denouncing a ‘loss of the overall perspective’, gravely declared
that ‘[t]he proliferation of courts should be a source of
enrichment, not of anarchy.’40Nevertheless, both the ICJ and
the ICTY
subsequently forcefully upheld their respective tests.41The ILC,
caught in the middle of these ‘divorce’ proceedings, advanced
that the two fora did not face the same legal issues nor a
similar factual situation: whereas the ICJ was concerned with
State responsibility, the question at stake before the ICTY was
to determine the applicable rules of international humanitarian
law and the criminal responsibility of the accused.42By justifying
their divergences in this way, the ILC seemingly adhered to
the effective control test to solve issues of State responsibility.
It however ultimately acknowledged that
[i]n any event it is a matter for appreciation in each case
whether particular conduct was or was not carried out
under the control of a State, to such an extent that the
conduct controlled should be attributed to it. 43
Such a conclusion amounts in effect to a refusal to take a

stand in favour of either Nicaragua or Tadic, though it actually
resembles the affirmation of the ICTY that the degree of
control may vary according to the factual circumstances of
each
44
case.
In its subsequent work, the ILC referred again to both cases,
41
Ibid., para
50.
but, while still refusing to favour either,10121013101410151016it
abandoned its attempt to reconcile them, noting that
[t]he contrast between Nicaragua and Tadic is an example of a
normative conflict between an earlier and a later
interpretation of a rule of general international law. Tadic 46
does not suggest ‘overall control’ to exist alongside

‘effective control’ either as an exception to the general
law or as a special (local) regime governing the Yugoslav
conflict. It seeks to replace that standard altogether. 47
101241See on one side, Bosnia v. Serbia (Merits), supra n. 12, p. 209,

paras 406-407; and on the other side, Prosecutor v. Zlatko Aleksovski,
ICTY Case No. IT-95-14/1-A, Judgement, 24 March 2000,
paras 131-134; Prosecutor v. Zejnil Delalic , Zdravko Mucic , Hazim Delic and Esad
Landzo (‘Celebici Case’), ICTY Case No. IT-96-21-A, Decision, 20
February 2001, paras 12-26 and Lasva Valley, Prosecutor v. Kordic (Dario)
and Cerkez (Mario), ICTY Case No. IT-95-14/2-A, Judgment, 17
December 2004, para 307.
42
ILC, Draft articles on Responsibility of States for
Internationally Wrongful Acts, with commentaries, YbILC 2001, Vol.
II, Part Two, p. 48, para 5, endorsing the explanation given in
Tadic, supra n. 3, Separate Opinion of Judge Shahabuddeen, para
17.
43
Ibid.
1013Tadic (Appeal Judgment), supra n. 3, para 117, quoted above
and by the ILC itself, ibid.
101445Report of the Study Group of the International Law
Commission finalized by M. Koskenniemi,
1015Fragmentation of International Law: Difficulties Arising
from the Diversification and Expansion of International Law, 13
April 2006, UN Doc. A/CN.4/L.682, para 51.
101646Ibid., para 50, n. 52: ‘This need not be the only - nor
indeed the correct - interpretation of the contrast between the
two cases. As some commentators have suggested, the cases
can also be distinguished from each other on the basis of their
facts. In this case, there would be no normative conflict.
Whichever view seems more well-founded, the point of
principle remains, namely that it cannot be excluded that two
Indeed, the ICTY considered itself to be applying the rules of
attribution set out by practice and case law.1017Yet, in the
Genocide case, the ICJ chose not to discuss in any detail the
reasoning of the ICTY nor the material referred to in its 1999
Judgment. It appears instead to have merely imposed the
continuity of its own jurisprudence and affirmed its superiority
on issues of general international law lying within the specific
purview of its jurisdiction.1018
Without openly questioning the 1986 Judgment, Vice-
President Al-Khasawneh noted that
Unfortunately, the Court’s rejection of the standard in the
Tadic case fails to address the crucial issue raised therein
— namely that different types of activities, particularly in
the ever-evolving nature of armed conflict, may call for
subtle variations in the rules of attribution. In the Nicaragua
case, the Court noted that the United States and the Contras
shared the same objectives — namely the overthrowing
of the Nicaraguan Government. These objectives,
however, were achievable without the commission of war
crimes or crimes against humanity. The Contras could
indeed have limited themselves to military targets in the
accomplishment of their objectives. As such, in order to
attribute crimes against humanity in furtherance of the
common objective, the Court held that the crimes
themselves should be the object of control. When,
however, the shared objective is the commission of
international crimes, to require both control over the non-
State actors and the specific operations in the context of
which international crimes were committed is too high a
threshold. The inherent danger in such an approach is
that it gives States the opportunity to carry out criminal
policies through non-state actors or surrogates without
incurring direct responsibility therefore.1019
tribunals faced with similar facts may interpret the applicable

law differently. ’
1017See in particular the passages quoted above of the Tadic
Appeal Judgment and paras 125-130 relying notably on United
States v. Mexico (Stephens Case), RIAA, Vol. IV, pp. 266-267; Kenneth P. Yeager v.
Islamic Republic of Iran, Iran-U.S. Claims Tribunal Rep., Vol. 17, p. 92; Loizidou v.
Turkey, Merits, ECHR Application No. 15318/89, Judgement, 18
December 1996, para 56.
1018See in particular Bosnia v. Serbia (Merits), supra n. 12, pp. 208-
209, paras 401 and 403. See also Cassese (2007), p. 649.
1019Bosnia v. Serbia (Merits), supra n. 12, Dissenting Opinion of
Vice-President Al-Khasawneh, pp. 256-257, para 39. See also
52
Gibney (2007), p. 771; Lanovoy (2017), p. 578. See however
Crawford (2013), p. 156 supporting
the Court’s position.
Though, to borrow the Court’s formula, it is undeniable that
the control test should not ‘stretch [...] too far [...] the
connection which must exist between the conduct of a State’s
organs and its international responsibility’,1020it is difficult to
imagine under what circumstances State responsibility for
private conduct could ever be established if it could not be so
in the Genocide case.1021
Whereas practical wisdom and judicial restraint prompted
the Court in 1986 to refrain from making the non-appearing
Respondent superpower responsible for gross breaches of
international humanitarian law committed by the contras and to
regarding the differences between the Nicaragua and Genocide cases,

Bosnia v. Serbia (Merits), supra n. 12, Dissenting Opinion of Judge ad
hoc Mahiou, pp. 448-449, paras 115 and 117.
1020Ibid., p. 210, para 406. See also Crawford, First report, supra
n. 27, p. 43, para 213: ‘[t]he principle should not extend to
conduct which was only incidentally or peripherally associated
with
1021an operation, or which escaped from the State’s direction
and control’.
set accordingly the ‘very strict’ effective control ‘trap’, 1022it
should in the future critically reconsider—or at least rigorously
justify—its position regarding the applicable degree of control
in light of the changes in the structure of States and their
interactions with private actors. What is certain is that the
present normative conflict prejudices the sense of judicial
security that ought to prevail among States and international
organisations in a field that is yet at the heart of international
law and constitutes an essential part of what may be
considered the Constitution of the international community. 1023
Beyond what has turned into one of the most heightened
debates among international courts and tribunals lies however
a rather encouraging sign:
as a rule, international judges or arbitrators have to
experience an extreme sense of urgency before they
would decide to straight-up contradict their colleagues in
another international jurisdiction. And if such sense of
urgency were based on genuine concerns about the state
of development of an international legal matter, the
ensuing divergences in international jurisprudence might
be welcome triggers of progress in the law.1024
Undeniably, the Nicaragua v. United States case constitutes a
major step in the development of the law of attribution and,
eventually, a trigger of progress which goes beyond State
responsibility for private conduct by encouraging alternative
approaches.
1022See the contribution by H.E. Mohammed Bedjaoui above,

in particular p. 9. See also Cassese (2007), p. 654.
10234Reuter (1991), p. 390. See further on the fundamental
importance of the law of State responsibility, British claims in the Spanish
zone of Morocco (Spain v. United Kingdom), Award, 1 May 1925, RIAA, Vol. II,
p. 641: ‘La responsabilité est le corollaire necessaire du droit. Tous droits d’ordre international
ont pour consequence une responsabilité internationale’(‘responsibility is the
necessary corollary of rights. All international rights entail
international responsibility’— translation by the United Nations
Secretariat, YbILC 1973,Vol. II, p. 174, n. 43); and Barcelona Traction, Light
and Power Company, Limited (Belgium v. Spain), Judgment, ICJ Reports 1970, p. 33, para
36: ‘Responsibility is the necessary corollary of a right.’
1024Simma (2004), p. 846.
2.3 Alternative Approaches of Attribution
In order to fill the accountability gap created by the ‘Nicaragua

tests’, the Court has employed alternative approaches. 1025
In its 1986 Judgment, it decided that, even if the conduct of
the contras was not attributable to the United States, the
training and military support it gave them violated its
obligation under customary international law not to intervene
in the affairs of another State.1026
Further, the Court revealed the existence of ‘mirror-image
obligations, one positive, one negative.’1027In particular, it held
that the United States was under an obligation ‘to “respect”
the [1949 Geneva] Conventions and even “to ensure respect”
for them.’1028In form, this is an obligation to act, but it also
entails ‘an obligation not to encourage persons or groups
engaged in the conflict in Nicaragua to act in violation of the
provisions of Article 3’ common to the four
Conventions.1029Besides, in relation to the mines laid in the
Nicaraguan waters, the Court found that the responsibility of
the United States was twofold: not only did it violate its
negative obligations to refrain from particular actions 1030but
also its positive obligation to issue a warning or notification of
the presence of mines.1031
The Court adopted a similar approach in the Armed Activities
case. While endorsing the Nicaragua tests1032and observing that
1025See more generally on alternatives to the control tests,
Boon (2014), p. 330, notably studying omissions, the duty to
prevent and due diligence. See also Lanovoy (2017), pp. 579-
585, focusing on complicity and Lanovoy (2016).
1026Nicaragua v. United States (Merits), supra n. 8, p. 146, para 292(3).
102758Thirlway (2013), p. 581.
1029Ibid.
103061I.e., ‘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’, Nicaragua v. United States
(Merits), supra n. 8, p. 147, para 292(6).
1031Ibid., p. 148, para 292(8).
103263Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, ICJ Reports 2005, p. 226, para 160.
the evidence did not suggest that the rebel groups’ conduct
was attributable to Uganda, it also concluded that the training
and military support given by Uganda violated certain
obligations of international law.1033It further noted that even in
the absence of attribution, ‘the fact that Uganda was the
occupying Power in Ituri district [ . . . ] extends Uganda’s
obligation to take appropriate measures to prevent the looting,
plundering and exploitation of natural resources in the
occupied territory to cover private persons in this district and
not only members of Ugandan military forces.’1034
While the result appears to be the same—the State being
held responsible—these alternatives to attribution of private
conduct are however not entirely satisfactory since, ‘[f]ar from
simply providing technical standards, rules on attribution
embody judgments about the scope of state [ . . . ] obligations,
the range of persons bound by a given set of norms and the
potential spread of losses that give rise to remedial
rights.’1035Besides, the more emphasis on such alternatives to
overcome the strict rules on attribution of private conduct, the
more reliance on domestic enforcement mechanisms and
international criminal liability to address violations committed
by non-State actors, therefore perpetuating ‘the lack of State
responsibility proper, and possibly ignoring the grassroots of
the wrongdoing and leaving room for “system criminality” 67,68
1034Ibid., para 248. Likewise, the Court determined that the
FRY was under a duty to prevent acts of genocide in Bosnia v.
Serbia (Merits), supra n. 12, p. 225, para 438. The debate on Draft
Article 8 within the ILC had also pointed at the responsibility
for failure to prevent as a ‘complementary factor [...]’ to the
‘restrictive’ control test, see 1998 ILC Report, supra n. 27, para
396.
103566Boon (2014), p. 375. See however Crawford (2013), pp.
157-161, arguing—with respect to terrorism—that rather than
broadening the scope of Article 8 of the ILC Draft and diluting
the Nicaragua test to solve attribution problems, the preferable
approach is indeed to rely on primary norms of international
law to permit direct attribution to the State.
3 Circumstances Precluding Wrongfulness
Beyond the most significant developments on the issue of

attribution, the 1986 Judgment in the Nicaragua v. United States
case also contains interesting findings concerning certain
circumstances wrongfulness. Far less disputed and thus almost
disregarded, these findings deserve some comments as they
have directly or indirectly helped shaping the scope of self-
defence (Sect.3.1), consent (Sect.3.2) and counter-measures
(Sect.3.3). The Court further addressed several other possible
justifications for the acts of the United States, which are worth
pointing out in the present contribution (Sect.3.4).
3.1 Self-Defence
In the Nicaragua v. United States case, the only justification put

forward by the United States was the excuse of self-
defence.103610371038Whilst the issue of self-defence has been
dealt with in details above,1039one additional point deserves a
mention: the clarification of its scope as a circumstance
precluding wrongfulness by the 1986 Judgment.
In 1980, the ILC adopted a draft article enshrining self-
defence as one of the circumstances precluding
wrongfulness1040but limited its purpose, i.e.
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
1036Footnote 104: ‘Nollkaemper and van der Wilt (2009), p. 15;
see also J0rgensen (2003), p. 112’.
1037Lanovoy (2016), p. 329.
1038See Nicaragua v. United States (Merits), supra n. 8, p. 134, para
266.
1039See the contribution by Schabas below and in particular
pp. 314-317.
1040See Draft Article 34: ‘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
selfdefence taken in conformity with the Charter of the United
Nations’ (YbILC 1980,Vol. II, Part Two, p. 52).
or repelling aggression by another 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, 1041
of the
general prohibition on recourse to the use of force.
1041Commentary of Draft Article 34, ibid., para 1.

The Commission thus left aside the impact of self-defence on
the violation of other rules of international law.1042
In its 1986 Judgment, the Court ‘accepted the
conceptualisation of self-defence as a notion of the law of
responsibility endorsed by the ILC’1043but it ‘went beyond the
commentary’s explanation of the scope of draft Article 34, in
that it considered self-defence as a possible defence for
(forcible) violations of international law generally.’ 1044In
particular, it considered whether the violation of the principle
of non-intervention,1045Nicaragua’s territorial sovereignty1046and
the freedom of navigation and commerce protected by the
1956 Treaty of Friendship,1047could be justified by self-defence.
Although in each case, the Court refused to uphold such
excuse,1048its reasoning does show that it never questioned
that self-defence could justify the breach of obligations other
than those deriving from the prohibition on the use of force.
Due to the non-appearance of the United States, the Court
felt compelled to consider proprio motu1049circumstances
precluding wrongfulness other than selfdefence, specifically
consent and counter-measures.
1042In its Second report, Crawford pointed out this difficulty

(YbILC 1999, Vol. II, Part One, pp. 74-75, paras 298-300
(hereinafter ‘Crawford, Second report’)).
1043Paddeu (2015). See Nicaragua v. United States (Merits), supra n. 8,
pp. 44-45, para 74 and pp. 107-108, para 226.
1044Paddeu (2015).
1045See Nicaragua v. United States (Merits), supra n. 8, p. 126, para
247.
1046See ibid., p. 128, para 251.
1047See ibid., p. 139, para 278.
1048See ibid., respectively p. 126, paras 247-249, p. 128, para
252 and p. 141, para 282.
1049The Court explained that ‘[f]or 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 [...] so that the absence of one party has less impact’
(Nicaragua v. United States (Merits), supra n. 8, pp. 24-25, para 29).
3.2 Consent
Most notably, albeit indirectly, the 1986 Judgment helped

clarifying an important aspect of consent, namely who is
entitled to consent to the commission of an internationally
wrongful act. Considering possible legal justifications to the
U.S. intervention in the Nicaraguan internal affairs, the Court
explained that the principle of non-intervention
would certainly lose its effectiveness as a principle of law
if intervention were to be justified by a mere request for
assistance made by an opposition group in another State
- supposing such a request to have actually been made
by an opposition to the regime in Nicaragua in this
instance. Indeed, it is difficult to see what would remain
of the principle of non-intervention in international law if
intervention, which is already allowable at the request of
the government of a State, were also to be allowed at the
request of the opposition. This would permit any State to
intervene at any moment in the internal affairs of another
State, whether at the request1050 of the government or at
the request of its opposition.
Although the Court appears to be focused on the principle of
non-intervention,1051this obiter dictum could be transposed to any
violation of international law. It stems from that passage that
only the legitimate1052government of a State ‘has status to give
consent to what would otherwise be an unlawful act against
the State.’1053
1050Ibid., p. 126, para 246.

1051See also ibid., p. 108, para 206. Interestingly, in a recent
statement, Austria referred to the Nicaragua v. United States case in
support of its condemnation of the supply of arms to the
Syrian opposition (see ‘Syria: Austrian Position on Arms
Embargo’, 13 May 2013, p. 2,
https://www.theguardian.com/world/julian-borger-global-
security-blog/interactive/2013/may/15/austria-eu-syria-arms-
embargo-pdf, accessed on 29 March 2017—cited in Gray (2016),
pp. 168-169).
1052Legitimacy is a relative notion and the right of certain
governments to consent to a foreign military intervention in
their country has been recently questioned. One may refer for
example to the government of Viktor Yanukovych in Ukraine
(for a discussion, see Vermeer 2014) and that of Abdrahbu
Mansour Hadi in Yemen (for a discussion, see Vermeer 2015).
1053Thirlway (2013), p. 605. See also Byrne (2016), pp. 107-117.
3.3 Counter-Measures
With respect to counter-measures, the Court stated that:

[w]hile 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 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.1054
Ten years later, in the Gabcikovo-Nagymaros Project case, a
landmark case on counter-measures, the Court sought support
on this passage when it set out the conditions that counter-
measures must meet, notably the proportionality
requirement.1055
However, the most important point made in the said
passage concerns the holder of the right to adopt counter-
measures in reaction to an internationally wrongful act,
1054 Nicaragua v. United States (Merits), supra n. 8, p. 127, para 249;

5
see also p. 128, para 252.

1055Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p. 55,
para 83. See also Crawford, Second report, supra n. 77, p. 93
and Third report on State responsibility, UN Doc. A/CN.4/507,
2000, Vol.(2013
II, ),
Part One, p. 105, para 400 (hereinafter
93
Crawford
YbILC
‘Crawford,
p. 704. Third report’).
a question which was1056sparking controversies at the time the
Court rendered its Judgment.1057The passage has been
interpreted as a firm rejection of the entitlement of third
States to take counter-measures.1058The reasoning of the Court
appears however more subtle. As with the right to (collective)
self-defence, the Court distinguished between armed attacks
and uses of force of lesser gravity. When use of force does not
amount to an armed attack, only the injured State has the
right to take counter-measures.1059Yet, the Court did not rule
out the possibility for third States to adopt counter-measures
in case of armed attacks, which involve the collective
interest.1060Indeed, the Court denied the United States the
right to take counter-measures because the acts allegedly
committed by Nicaragua did not amount to an armed attack.
The ILC’s Special Rapporteur on State responsibility built on
the 1986 Judgment in his Third report. He argued that:
[t]here is here an analogy with collective self-defence. In
the Military and Paramilitary Activities in and against Nicaragua case, ICJ noted
that action by way of collective selfdefence could not be
taken by a third State except at the request of the
primary obligee (the State subjected to the armed
attack). Yet, of course, the rules relating to the use of
force give rise to obligations erga omnes: they are collective
obligations. The Military and Paramilitary Activities in and against Nicaragua
case was referred to by the Court in the Gabcikovo-Nagymaros
Project case as relevant to the law of countermeasures, and
the analogy seems a reasonable, if not a compelling, one.
If State A cannot act in collective self-defence of State B
without State B’s consent, it does not seem appropriate
to hold that it could take (collective) countermeasures in
cases where State B is the victim, irrespective of State B’s
1056The debate is still ongoing with respect to counter-

measures in reaction to the violation of jus cogens norms (see the
odd redaction of Article 54 of the ILC’s Articles on State
responsibility and the commentary hereto (YbILC 2001,Vol. II, Part
Two, p. 137).
1057Alland (1994), pp. 334-335.
1058See e.g., D. Alland who explains that ‘[l]a Cour internationale de Justice a énoncé très nettement
la condamnation des contre-mesures prises par les Etats tiers dans l’affaire des activites militaires et
paramilitaires des Etats-Unis au Nicaragua et contre celui-ci’ (ibid., pp. 337-338). See also David
(1986), p. 167.
1059Verhoeven (1987), p. 1216.
1060Sicillianos (1990), pp. 152-154. See also Crawford, Third
report, supra n. 86, p. 37, para 114.
wishes. On the other hand, if State A, a member of the
international community to which the obligation is owed,
cannot take proportionate countermeasures on behalf of
State B, the victim of the breach, then State B is in effect
left to face the responsible State alone, and a legal
relationship based on multilateral obligation is effectively
converted to a bilateral one at the level of its
implementation. That too does not seem right as a
matter of principle.1061
More recently, Professor James Crawford confirmed that ‘it
seems reasonable to conclude, by analogy with collective self-
defence, that’ third States would be entitled to take collective
counter-measures, had the victim requested so.93
1061Crawford,
93
Crawford (2013Third
), report, supra n. 86, p. 105, para 400—
footnotes omitted.
p. 704.
The position adopted by the Court in its 1986 Judgment still

corresponds to the current state of the law on this issue as
reflected in the 2001 ILC’s Articles. If the ILC only mentioned
the injured State(s) as holder of the right to take counter-
measures,1062it did not exclude third States’ entitlement when
some general interest is at stake. Article 54 (‘Measures taken by
1063
States other than an injured State’ ) provides that ‘ [t]his chapter
[devoted to counter-measures] does not prejudice the right of
any State, entitled under Article 48, paragraph 1, to invoke the
responsibility of another State, to take lawful measures against
that State to ensure cessation of the breach and reparation in
the interest of the injured State or of the beneficiaries of the
obligation breached.’1064In the commentary of Article 54, the
ILC further explained that:
[t]his article speaks of “lawful measures” rather than
“counter-measures” so as not to prejudice any position
concerning measures taken by States other than the
injured State in response to breaches of obligations for
the protection of the collective interest or those owed to
the international community as a whole.1065
3.4 Other Justifications
Finally, in the Nicaragua v. United States case, the ICJ addressed—

and eventually
rejected—three additional possible justifications for the
conduct of the United
States, which can be linked to circumstances precluding
wrongfulness:1066
- First, the Court mentioned in passing ‘a supposed rule of
“ideological intervention”’, which would have been a ‘striking
innovation’1067with a ‘discretionary’ definition had it been
106294See Articles 49 and 52 (YbILC 2001,Vol. II, Part Two, pp.
129-130 and 135).
106395Emphasis added.
1064YbILC 2001,Vol. II, Part Two, p. 137.
106597Commentary to Article 54, ibid., p. 139, para 7.
106698On these three arguments, see Eisemann (1986), pp. 186-
187.
1067"Nicaragua v. United States (Merits), supra n. 8, p. 134, para 266.
advanced not solely in a political context but as a legal
argument1068;
- Second, the Court dealt with ‘the argument derived from the
preservation of human rights in Nicaragua’1069and explained
that ‘the use of force could not be the appropriate method
to monitor or ensure such respect’1070; and
- Third, the ICJ explored the excuse based on the militarization
of Nicaragua and noted that ‘in international law there are
no rules [ . . . ] whereby the level of armaments of a sovereign
State can be limited.’1071
1068100Ibid.
1069 Ibid, pp. 134-135, para 268.
102
1070
93 Ibid.
Crawford (2013),para 269.
1071Ibid, p. 135,
p. 704.
It is worth confronting these findings with one of the most
controversial concepts of the past decade: responsibility to
protect (‘R2P’). Most notably, the arguments put forward by
western States in support of their agenda towards the ‘Arab
spring’ bear a resemblance with those used by the United
States to justify their actions in Nicaragua, such as the
protection of human rights put forward in defence of their
unilateral intervention in Syria.1072From a legal point of view,
these arguments are no more valid today than they were in
the eighties. In line with the 1986 Judgment,1073R2P rejects
unilateralism.1074As Professor Kohen argued, ‘[t]he emphasis
placed by R2P on collective action was indeed pre-empted by
the Court’ in that Judgment.1075
4 Reparation
Finally, the Nicaragua v. United States and the Certain Activities cases
have offered an opportunity for the Court to address rarely-
discussed questions with regard to reparation and, more
specifically, compensation (Sect. 4.1) and satisfaction (Sect.
4.2).
4.1 Compensation
The Certain Activities case may constitute a new opportunity for

the ICJ to clarify certain compensation issues, in particular
with regard to environmental damage, since Costa Rica
requested the Court to decide the question of compensation
pending between the Parties.1076
1072Nollkaemper (2012).
107305See Nicaragua v. United States (Merits), supra n. 8, pp. 134-135,
para 266-269.
1074See UNGA Res. 60/1, ‘2005 World Summit Outcome’, 24
October 2005, paras 138-139 and UNSC Res. 1674, ‘Protection
of
109 Civilians in Armed Conflict’, 28 April 2006, para 4. See also
By a letter of 12 September 1991, Nicaragua requested
Kohen
‘that an(2012 ), p.be
Order 163.made
1075Kohen (2012), p. 163.officially
recording
1076 08 the discontinuance
Certain Activities carried out by Nicaraguaof the
in the proceedings
Border Area (Costa Ricaand directing
v. Nicaragua),
the removal of the case from the
list’, Nicaragua v. United States, Order of 26 September 1991, ICJ Reports 1991, p. 48.
Although it was discontinued before the end of the
compensation phase,1077the Nicaragua v. United States case raised
innovative questions regarding compensation.
The first concerned the possibility of ordering an interim
award on compensation.1078In its Memorial and at the end of
the hearings, in addition to the traditional
1077Compensation, Order of 2 February 2017.

1078On this request, see Thirlway (2013), p. 623.
request to settle compensation issues in a separate phase of
the proceedings, Nicaragua requested that, in its Judgment on
the Merits, the Court provisionally orders the United States to
pay a substantial lump sum of money corresponding to ‘the
minimum valuation of the direct damages, with the exception
of damages for killing nationals of Nicaragua, resulting from
the violations of international law’1079and that it reassesses this
evaluation at the compensation phase.1080This has been the
first (and only) time the Court faced a request of this nature.
Nicaragua’s request was rather creative since the Statute is
silent on this question.1081As the Court noted, this absence of
provisions ‘empowering the Court to make an interim award’
on compensation does not debar it from making such an
award either.1082And indeed, the Court contemplated that
possibility and explained that it would be appropriate ‘in
exceptional circumstances, and where the entitlement of the
State making the claim was already established with certainty
and precision.’1083It nonetheless rejected Nicaragua’s request
because, due to their non-appearance, the views of the United
States ‘on the matter [were] not known to the Court.’ 1084
Further issues of reparation were addressed in depth in the
Memorial of Nicaragua on compensation.1085It is neither
relevant nor appropriate to discuss the validity of Nicaragua’s
arguments in the present contribution but it is worth noting
the questions raised and discussed in this Memorial with
respect to:
- the difference between the attribution of an act and the
1080Ibid.
1081The provisions on provisional measures in the Statue and
the Rules of the Court were not meant to encompass requests
of this kind, if only because requests for provisional measures
have priority over any other matter pending before the Court
(see Article 74(1) of the Rules of Court).
1083Ibid.
1084Ibid.
1085On 29 March 1988.
obligation to compensate the damages caused by that
act;1086
- the mode and delicate calculation of compensation for death
and personal
119
injuries; 1087
- compensation as a possible form of reparation for the
violation of the sovereignty of a State;1088and
- the impact of the jus cogens nature or erga omnes character of an
obligation on compensation.1089
4.2 Satisfaction
Finally, beyond the Nicaragua v. United States case, the 2015

Judgment in the Certain Activities case contains interesting
considerations on satisfaction. Under the law of State
responsibility, a declaration that a State has breached its
obligations towards another often constitutes an appropriate
satisfaction.1090In 2015, the Court specified the stage of the
proceedings where such declaration could actually be treated
as a relief. Costa Rica had accused Nicaragua of having
violated an ICJ Order on provisional measures and requested
new measures. During the hearings, Nicaragua acknowledged
that its actions represented an infringement of its obligations
under the said Order1091and the Court ascertained this violation
in its new Order on provisional measures.1092At the merits
1086See Memorial of Nicaragua (Compensation), 29 March

1988, paras 48-58.
1087See ibid., paras 59-71 and 82-110.
1088See ibid, paras 380-399.
1089See ibid, paras 407-432.
1090122Paragraph 6 of the Commentary to Article 37 of the
ILC’s Articles on State responsibility, YbILC 2001, Vol. II, Part Two,
pp. 106-107.
1091123See Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua);
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment,
ICJ Reports 2015, p. 713, para 125 (hereinafter ‘Certain Activities; Construction of a Road
(Judgment)’).
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Provisional
Measures, Order of 22 November 2013, ICJ Reports 2013, pp. 364-365, paras 45-46. See also, ibid., p.
phase, Nicaragua argued that the new Order properly
addressed Nicaragua’s responsibility stemming from the
breach of the former one and that it constituted an
appropriate satisfaction.1093Therefore, according to Nicaragua,
there was ‘no need to reopen the debate on the existence or
substance of the internationally wrongful acts alleged at that
time by Costa Rica.’1094
The Court rejected Nicaragua’s argument. It explained that
its second Order ‘was only instrumental in ensuring the
protection of the rights of the Parties during the judicial
proceedings’1095and this did not constitute a declaration of
Nicaragua’s responsibility. The Court stated that the only
appropriate place for assessing the responsibility arising from
the breach of provisional measures is the judgment on the
merits. Before such judgment, it cannot ‘be said that any
responsibility for the breach has ceased: what may have
ceased is the breach, not the responsibility arising from the
breach.’1096
Without challenging the Court’s findings on this issue, Judge
Cancado Trindade advanced that.
the determination of a breach of a provisional measure of
protection is not — should not be — conditioned by the
completion of subsequent proceedings as to the merits of
the case at issue. The legal effects of a breach of a
provisional measure of protection should in my
713, para 126.

1093125CR 2015/7, 17 April 2015, p. 37-38, para 5 (Pellet).
1094126Ibid. See also Costa Rica’s reply, CR 2015/14, 28 April
2015, pp. 39-42, paras 2-10 (Parlett).
1095121 Certain Activities; Construction of a Road (Judgment), p. 713, para 126.
1096128Ibid.
view be promptly determined, with all its legal
consequences. In this way, its anticipatory rationale
would be better served. There is no room for raising here
alleged difficulties as to evidence, as for the ordering of
provisional measures of protection, and the determination
of non-compliance with them, it suffices to rely on prima facie
evidence (commencement de preuve). And it could not be
otherwise.1097
The idea is undoubtedly interesting. It would certainly make
the urgent character of provisional measures more meaningful.
Furthermore, nothing debars the Court from treating a breach
of provisional measures separately from the original merits
issues submitted to the Court by the Application or the Special
Agreement. Orders of provisional measures create new legal
obligations upon the Parties, different from those vindicated in
the merits. However, the urgent character of provisional
measures should not lead to lightening the burden of proof, if
the responsibility of one of the Parties were to be established
since any decision on that issue would be final.
5 Conclusion
In the wake of the 1986 Judgment, commentators have

expressed doubts on its importance.1098It is fair to say that
they have been proven wrong. As regards the law of State
responsibility—as well as other fields of international law, the
findings of the Court have been a source of inspiration as
much as a catalyst for debate and reflection. While they have
triggered a major controversy among international bodies
concerning specifically the attribution of private conduct to a
State, their contribution to the development of the law of
attribution as well as circumstances wrongfulness is
undeniable. The ‘Nicaraguan cases’ have also paved the way
for innovative answers to the question of reparation. They will
undoubtedly continue to irrigate the discussions on these
issues, and with potentially even greater acuteness in light of
the
131 changes in the structure of States, the diversification of
See e.g., UNSC Res. 1377 (2001), 12 November 2001
1097 Ibid., Separation Opinion of Judge Cancado Trindade, para
declaring ‘that acts45-46.
of international
35; see also paras
1098See e.g. Verhoeven
terrorism constitute one of (1987
the), p. 1238.
most serious threats to
international peace and security in the
twenty-first century’, see also more recently UNSC Res. 2199
(2015), 12 February 2015.
modern actors in international relations, as well as the

emergence of new and yet ‘most serious’ threats to
international peace and security such as terrorism.131
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quiet strength (Miscellanea in memoriam Geza Herczegh).
Pazmany Press, Budapest, pp 111-133 Reuter P (1991) Trois
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the International Court of Justice: fifty years of jurisprudence.
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la violence - Les arrêts Nicaragua c. Etats-Unis RGDIP
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Vermeer Z (2014) Intervention with the consent of a deposed
(but legitimate) government? Playing the Sierra Leone card.
http://www.ejiltalk.org/intervention-with-the-consent-of-a-
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Benjamin Samson is a PhD Candidate at University Paris Nanterre.

He is also a consultant in public international law and acts as
counsel in cases before the International Court of Justice, the
International Tribunal for the Law of the Sea and UNCLOS
Annex VII Arbitral Tribunals. He has taught at University Paris
Nanterre and Science Po (European Franco-German Campus).
Tessa Barsac holds a Master degree of the University Paris
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cases before the International Court of Justice, the
International Tribunal for the Law of the Sea and UNCLOS
Annex VII Arbitral Tribunals.
The Use of Force in the Nicaraguan Cases
William Schabas
Abstract The 1986 judgment in Nicaragua v. United States is of

seminal importance in the development of international law
governing the use of force, crowning a process of legal
development that began in the first decades of the century.
The case concerned various forms of material and logistical
support provided by the United States to contra rebels in
Nicaragua who were directly responsible for armed attacks.
After unsuccessfully challenging Nicaragua’s request for
provisional measures and failing at the jurisdiction and
admissibility stage, the United States boycotted subsequent
proceedings. The Court relied upon customary international
law, given the multilateral treaty reservation to jurisdiction of
the United States. It distinguished the most grave forms of the
use of force (those constituting an armed attack) from other
less grave forms. The Court rejected the idea that collective
selfdefence might have justified the use of force. The
judgment has been considered in several subsequent cases
before the Court and its holdings on the use of force continue
to influence the broader debate, in particular with respect to
the provisions of the Rome Statute of the International
Criminal Court, as amended by the Kampala Review
Conference, governing the crime of aggression.
Contents
1 Introduction.................................................................................................................................... 306
2 Use of Force Issues in the Case Against the United States............................................................ 308
2.1 Provisional Measures Order of 10 May 1984...................................................................... 308
2.2................................................................................................................................................ Jurisd
iction and Admissibility Judgment of 26 November 1984......................................................... 310
2.3................................................................................................................................................ Judg
ment on the Merits of 27 June 1986............................................................................................ 311
3 Customary International Law and the Use of Force....................................................................... 312
4 Individual and Collective Self-Defence......................................................................................... 314
5 Subsequent Case Law of the Court and the Judgment in Military and Paramilitary
3
Activities........................................................................................................................................ 317
0
5
306 W. Schabas
W. Schabas, OC MRIA (*)
Middlesex University London, London, UK
Leiden University, Leiden, The Netherlands
National University of Ireland,
Galway, Ireland e-mail:
w.schabas@mdx.ac.uk
9_13
6 Influence on the Rome Statute of the International Criminal Court.......................................... 321
7......................................................................................................................................................... Concl
uding Remarks................................................................................................................................... 323
References......................................................................................................................................... 324
1 Introduction
The prohibition of the use of force in the settlement of

international disputes is among the most significant
developments in public international law of the twentieth
century. At the outset of what historian Eric Hobsbawm
branded the ‘short twentieth century’,1resort to war was not in
principle considered to be contrary to the law of nations. On
28 July 1914, Austria’s armed attack on Serbia was explained
by the latter’s failure to accede to an ultimatum. Days later,
when Germany invaded Belgium, the charge that international
law had been breached was premised on the violation of a
century-old treaty enshrining Belgian neutrality.2At the Paris
Peace Conference, the Commission on Responsibilities said
responsibility for the war lay with Austria and Germany who
pursued ‘a policy of aggression, the concealment of which
gives to the origin of this war the character of a dark
conspiracy against the peace of Europe’.3But the Commission
resisted the proposal to try the German emperor for his role in
starting the war after concluding that ‘a war of aggression may
not be considered as an act directly contrary to positive
law’.4The Council of Four subsequently decided to try the
Kaiser for ‘a supreme offence against international morality
and the sanctity of treaties’.5In his unsuccessful effort to obtain
the Kaiser’s extradition from the Netherlands, Clemenceau
described the charge not as ‘une accusation publique ayant le caractère
juridique quant au fond’ but rather ‘un acte de haute politique internationale
imposee par la conscience universelle dans lequel les formes du droit ont été prevues
The Use of Force in the Nicaraguan Cases 307
uniquement pour assurer a l’accuse un ensemble de garanties tel que le droit publique
n’en a jamais connu.’6
When the ‘short twentieth century’ came to a close, with the
fall of the Berlin Wall and the collapse of the Soviet Union,
there could be no doubt about the prohibition of the use of
force to settle international disputes. According to article 2 (4)
of the Charter of the United Nations, ‘[a]ll Members shall
refrain in their international relations from the threat or use of
force against the territorial integrity or political independence
of any state, or in any other manner inconsistent with the
Purposes of the United Nations’. A year after its adoption, the
International Military Tribunal described crimes against peace
as the ‘supreme international crime 109911001101110211031104
1099Hobsbawm (1994).
1100Treaty of London, 19 April 1939, Art. 1.
1101Adatci (1920), p. 98.
1102
12
Ibid., p. 118.
Ibid.,
1103Treaty of Peace between the Allied and Associated
Powers
p. 142. and Germany (‘Treaty of Versailles’), (1919) LNTS 4, Art.
227.
1104Mevis and Reijntjes (2014), p. 216.
308 W. Schabas
differing only from other war crimes in that it contains within
itself the accumulated evil of the whole’.7This evolution in
international law may also be glimpsed in the holding of the
International Court of Justice, in its first contentious case, that
the United Kingdom had violated Albanian sovereignty when a
well-armed flotilla swept the Corfu Channel of mines. 8In 1966,
in its Commentary on the draft articles on the law of treaties,
the International Law Commission said that the prohibition of
the use of force ‘constituted a conspicuous example of a rule in
international law having the character of jus cogens’.9Four years
later, in the Barcelona Traction case, the International Court of
Justice described the ‘outlawing of acts of aggression’ as an
obligation erga omnes.1105110611071108
This profoundly important legal development may well have
been crowned by the International Court of Justice in its
judgment of 27 June 1986 in Military and Paramilitary Activities in and
against Nicaragua. President Singh attempted to put the issue in
context in his separate opinion:
[T]his 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 extension 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
1105''France et al. v. Goring et al., (1946) 22 IMT 411, p. 427.
11068Corfu Channel (United Kingdom v. Albania), Merits, Judgment, ICJ Reports 1949, p. 35.
11079Paragraph 1 of the Commentary on Draft Article 50 on
the Law of Treaties, YbILC 1966, Vol. II, p. 247 (cited by Judge
Sette-Camara in his Separate Opinion appended to Military and
Paramil
1108itary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, ICJ Reports 1986, p. 189 (hereinafter ‘Nicaragua v. United States (Merits)’)).
being taken forthwith11091110
to eliminate such a contingency
arising in the future.
President Singh heralded ‘the contribution of the Court in
emphasizing that the principle of non-use of force belongs to
the realm of jus cogens’, describing it as ‘the very cornerstone of
the human effort to promote peace in a world torn by strife’. 12
Three applications concern the attacks on the Sandinista
government by so-called contras during the early 1980s. The
first of them, filed in 1984, was directed against the United
States of America. It resulted in what is without doubt one of
the Court's most important judgments. Nicaragua prevailed,
with large, comfortable majorities of the Court finding the
United States to have violated
110910Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, ICJ
Reports 11
1970, p. 32, para 34.
1110 Nicaragua v. United States (Merits), Separate Opinion of Judge
Singh, p. 141.
12
Ibid.,
p. 142.
310 W. Schabas
customary international law governing the use of force, non-
intervention and territorial sovereignty, as well as some
bilateral treaties.
The United States promptly declared that it would not abide
by the judgment, in defiance of article 94 of the Charter of the
United Nations that requires every Member State ‘to comply
with the decision of the International Court of Justice in any
case to which it is a party’. Flush with victory, Nicaragua filed
applications against Honduras and Costa Rica that focused on
violations of the prohibition of the use of force under both
conventional and customary international law. These cases
never reached the merits stage. Nicaragua submitted
declarations of discontinuance and directed removal of the
cases against Costa Rica and Honduras from the list. 1111In the
main case against the United States, Nicaragua filed a
memorial on the subject of reparations. However, it
subsequently informed the Court that the two countries had
reached agreement ‘ aimed at enhancing Nicaragua’ s
economic, commercial and technical development to the
maximum extent possible’. Like the other two cases, Military and
Paramilitary Activities in and against Nicaragua ended with a
discontinuance.1112
2 Use of Force Issues in the Case Against the United States
2.1 Provisional Measures Order of 10 May 1984
On 9 April 1984, Nicaragua submitted an application against

the United States of America with respect to military and
paramilitary activities in and directed against it. According to
the application, ‘the United States of America is using military
force against Nicaragua and intervening in Nicaragua’s internal
1111Border and Transborder Armed Actions (Nicaragua v. Costa Rica), Order of 19 August 1987, ICJ
Reports 1987, p. 182; Border and Transborder Armed Actions (Nicaragua v. Honduras), Order of 27
May 1992, ICJ Reports 1992, p. 222.
America), Order of 26 September 1991, ICJ Reports 1991, p. 47.
16
Ibid., para
4.
affairs, in violation of Nicaragua’s sovereignty, territorial
integrity and political independence and of the most
fundamental and universally-accepted principles of
international law’.1113The Application cited legislation enacted
that year by the American Congress budgeting $24 million to
support ‘directly or indirectly, military or paramilitary
operations in Nicaragua by any nation, group, organization,
movement or individual’.1114Nicaragua sought a condemnation
of the United States for violating its obligations under several
treaties, including article 2(4) of the Charter of the United
Nations and articles 18 and 20 of the Charter of the
Organization of American
1114America), Application instituting proceedings, 9 April 1984,
para 1.
312 W. Schabas
States, as well as ‘its obligation under general and customary
international law’. Nicaragua accompanied its application with a
request for provisional measures:
First, that the United States should immediately cease
and desist from providing directly or indirectly any
support including training, arms, ammunition, supplies,
assistance, finances, direction or any other form of
support to any nation, group, organization, movement or
individual engaged or planning to engage in military or
paramilitary activities in or against Nicaragua [...] then,
that the United States should immediately cease and
desist from any military or paramilitary activity by its own
officials, agents or forces in or against Nicaragua and
from any other use or threat of force in its relations with
Nicaragua.1115
In support of its application, Nicaragua alleged that the
United States was ‘presently engaged in the use of force and
the threat of force against Nicaragua through the
instrumentality of a mercenary army of more than 10,000 men,
recruited, paid, equipped, supplied, trained and directed by the
United States, and by means of the direct action of personnel
of the Central Intelligence Agency and the U.S. armed forces’.
Nicaragua pointed to the deaths of more than 1400
Nicaraguans as well as other dire consequences of the use of
force. The United States responded by arguing that the Court
was without jurisdiction. It also pointed to ongoing
negotiations involving several Central American States known
as the ‘Contadora process’.
The Court granted Nicaragua’s request for provisional
measures but noted, as is the case in all such rulings, that it
was without prejudice to the merits of the case. It held by
fourteen votes to one:
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
America), Provisional Measures, Order of 10 May 1984, ICJ Reports 1984, p. 113.
Nations Charter and the Charter of the Organization of
American States.’1116
Judges Mosler and Jennings wrote a separate opinion
recalling that ‘the duties, in accordance with the provisions of
the United Nations Charter, and in accordance with the Charter
of the Organization of American States, to refrain in their inter-
national relations from the threat or use of force against the
territorial integrity or the political independence of any State,
and to refrain from intervention in matters within the domestic
jurisdiction of a State, are duties which apply to the Applicant
State as well as to the Respondent State’.1117The judge of
American nationality, Stephen Schwebel, was the lone
dissenter. He assailed the ‘preoccupation of the Court’ with
Nicaragua’s claims as being ‘so objectionable, as a matter of
law, as a matter of equity, and as a matter of the place of the
Court as the principal judicial organ of the United Nations’.
Judge Schwebel described the prohibition on the use of force
set out in article 2(4) of the Charter of the United Nations as a
‘bedrock’ principle of international law that was not merely a
bilateral rule ‘in whose observance and realization third States
have no legal interest’ but a universal norm in which all States
had a legal interest.1118
2.2 Jurisdiction and Admissibility Judgment of 26

November 1984
At the jurisdiction and admissibility stage, the United States

submitted arguments dealing with matters germane to the
issue of the legality of the use of force. The United States
argued, in its Counter-Memorial, that charges concerning the
unlawful use of force were reserved to the Security Council by
article 39 of the Charter of the United Nations.1119The United
States also contended that dealing with Nicaragua’s suit would
1116Ibid., p. 181.
1117Ibid., Separate Opinion of Judges Mosler and Jennings, p.
189. 20
1118 Ibid., Dissenting Opinion of Judge Schwebel, p. 196.
America), Preliminary Objections, Judgment, ICJ Reports 1984, p. 392, paras 89-91.
314 W. Schabas
require it to rule on the application of article 51 of the Charter,
a matter it said was also the prerogative of the Security
Council. Moreover, it said that subjecting such claims to judicial
examination in the course of a conflict would impair the
exercise of the right of self-defence.1120
Rejecting Washington’s objections, the Court cited article 24
of the Charter whereby the Security Council has primary but
not exclusive responsibility in matters of international peace
and security.1121With respect to the article 51 issue, the Court
said that the fact that the Charter refers to self-defence as a
‘right’ provides an indication of its ‘legal dimension’.
Consequently, ‘if in the present proceedings it becomes
necessary for the Court to judge in this respect between the
Parties - for the rights of no other State may be adjudicated in
these proceedings - it cannot be debarred from doing so by
the existence of a procedure for the States concerned to report
to the Security Council in this connection’.1122
The United States also contended that there was an
inherent obstacle to the judicial examination of an ongoing
conflict. Such a situation could not provide ‘a pattern of legally
relevant facts discernible by the means available to the adjudi-
cating tribunal, establishable in conformity with applicable
norms of evidence and proof, and not subject to further
material evolution during the course of, or subsequent to, the
judicial proceedings. It is for reasons of this nature that
ongoing armed conflict must be entrusted to resolution by
political processes.’1123Dismissing
1120Ibid., para 91.

1121Ibid., pp. 434-435, para 95.
112224Ibid., p. 436, para 98.
112325Ibid., pp. 436-437, para 99.
the argument, the Court noted that to the extent there were
difficulties proving the charges, this was a problem for
Nicaragua as it bore the burden of proof. ‘A situation of armed
conflict is not the only one in which evidence of fact may be
difficult to come by, and the Court has in the past recognized
and made allowance for this’, it said.1124
2.3 Judgment on the Merits of 27 June 1986
In its judgment on the merits of 27 June 1986, the Court

imputed two manifestations of the use of force to the United
States: the laying of mines in Nicaraguan internal or territorial
waters in early 19841125and certain attacks on Nicaraguan
ports, oil installations and a naval base in 1983 and 1984.1126It
said that these activities were ‘infringements of the principle of
the prohibition of the use of force’ unless they could be
justified by circumstances that exclude their
unlawfulness.1127Rejecting the plea of collective self-defence
against an alleged armed attack on El Salvador, Honduras or
Costa Rica that the United States had invoked to justify its
conduct, the Court concluded that ‘the United States has
violated the principle prohibiting recourse to the threat or use
of force’.1128
The Court concluded that although there was no evidence
that the United States had actually participated in military or
paramilitary operations within Nicaragua, it said it was ‘clear’
1124Ibid., pp. 437-438, para 101.
1125 Nicaragua v. United States (Merits), supra n. 9, p. 48, para 80 and
22
p. 118, para 227.

1126Ibid., p. 48, para 81, pp. 50-51, para 86 and p. 118, para
227. In the dispositive it referred specifically to 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.
1127
32 Ibid., para 227.
Ibid.,
1128 p. 123,
Ibid, p. 123, para 238.
para 238.
316 W. Schabas
that such operations conducted by contras ‘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’.
1129
The Court also recognized that
the recruitment, encouragement and assistance provided by
the United States to the contras was a ‘prima facie violation’ of
the principle of the non-use of force. The Court concluded that
to the extent that the assistance to the contras involved a threat
or use of force, this constituted a breach of international law
by the United States.32It rejected Nicaragua’s charge that
military manoeuvres conducted by the United States
1129Ibid., p. 61, para 106.

could be considered a breach of ‘the principle forbidding
recourse to the threat or use of force’.1130
The Court pointed to the prohibition in the Declaration on
Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter
of the United Nations,1131adopted by the General Assembly in
1971, of ‘organizing or encouraging the organization of
irregular forces or armed bands [...] for incursion into the
territory of another State’ and ‘participating in acts of civil
strife [...] in another State’, noting that ‘participation of this
kind is contrary to the principle of the prohibition of the use of
force when the acts of civil strife referred to “involve a threat
or use of force”’. It said that while arming and training of the
contras would fall within the prohibition, ‘this is not necessarily
so in respect of all the assistance given by the United States
Government. In particular, the Court considers that the mere
supply of funds to the contras, while undoubtedly an act of
intervention in the internal affairs of Nicaragua [...] does not in
itself amount to a use of force.1132
After losing its challenge to jurisdiction and admissibility, the
United States decided to boycott the proceedings and,
therefore, did not participate in the merits phase. 1133In its
judgment, the Court noted that the United States had not
made any pleading on the merits and was not represented at
the oral hearing. However it observed that in its Counter-
Memorial for the jurisdiction and admissibility stage of the
proceedings, the United States had ‘made clear’ that ‘by
providing, upon request, proportionate and appropriate
assistance to third States not before the Court’ it claimed ‘to be
acting in reliance on the inherent right of self-defence
1130Ibid.
1131UNGA Res. 2625 (XXV), ‘Declaration on Principles of
International Law concerning Friendly Relations and Co-
operation among States in accordance with the Charter of the
United Nations’, 24 October 1970.
1132Nicaraguav. United States (Merits), supra n. 9, pp. 118-119, para
228.
1133Ibid., p. 17, para 10.
318 W. Schabas
“guaranteed [...] by Article 51 of the Charter” of the United
Nations, that is to say the right of collective self-
defence’.1134The arguments of the United States were also
developed in academic journal articles by lawyers who were
close to the government.1135
3 Customary International Law and the Use of Force
Although it had rejected the challenge to jurisdiction and

admissibility, at the merits stage the Court held that it did not
have jurisdiction to rule on breaches of multilateral treaties by
the United States because of the reservation, known as the
‘Vandenberg reservation’, that accompanied its declaration
accepting the jurisdiction of the Court. Nevertheless, the Court
concluded that it was not prevented from examining charges
made by Nicaragua, in particular those concerning the use of
force, to the extent that they arose as a result of obligations
under customary international law.1136The United States had
argued at the jurisdiction and admissibility stage that the Court
could not consider the issue of use of force from the
standpoint of customary law because the matter had been
exhaustively codified in the Charter of the United Nations and
in particular by article 2(4).1137Although the Court had rejected
the contention in its 1984 decision, it felt that it was necessary
to ‘develop and refine’ its views on this point in its judgment
on the merits.1138
Observing that the United States appeared to take the view
that ‘the existence of principles in the United Nations Charter
precludes the possibility that similar rules might exist
independently in customary international law, either because
existing customary rules had been incorporated into the
Charter, or because the Charter influenced the later adoption
1134 Ibid., p. 22, para 24.

31
1135See e.g. Moore (1986) and Rostow (1986).

1137Ibid., pp. 92-93, para 173.
1138Ibid., p. 93, para 174.
of customary rules with a corresponding content’. 1139It pointed
to the reference to the ‘inherent right’ of individual or collective
selfdefence set out in article 51 of the Charter as evidence of a
body of law that was quite explicitly left intact rather than
subsumed by the Charter.1140Although acknowledging the
possibility that treaty law and customary law might diverge
with the passage of time, the Court said that in the area of the
use of force, ‘the Charter gave expression in this field to
principles already present in customary international law, and
that law has in the subsequent four decades developed under
the influence of the Charter’.1141It continued: ‘The essential
consideration is that both the Charter and the customary
international law flow from a common fundamental principle
outlawing the use of force in international relations.’ 1142Later in
the judgment, the Court said that what was unlawful, in
accordance with the principle of the prohibition of the use of
force, ‘is recourse to either the threat or the use of force
against the territorial integrity or political independence of any
State’.1143
Turning to the specific content of the customary
international law relevant to the use of force, the Court noted
that both the United States and Nicaragua took 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’.1144For evidence of opinio juris, the
Court pointed to declarations adopted by the United Nations
General Assembly, in particular the Friendly Relations
Declaration,1145the Helsinki Final Act,1146and the work of the
International Law Commission.1147According to James
1139Ibid.
1140Ibid., p. 94, para 176.
1141Ibid., pp. 96-97, para 181.
1142Ibid.
1143Ibid., p. 138, para 227.
114441 Ibid., pp. 99-100, para 188 and Dissenting Opinion of
Judge Jennings, p. 520.
1146Ibid., p. 100, para 189.
1147Ibid, pp. 100-101, para 190.
320 W. Schabas
Crawford, ‘ [t]his constitutes the most extensive reliance by
the Court on resolutions of international organizations as a
source of law’.1148
In a formulation that has frequently been referred to, the
Court said it was necessary to distinguish ‘the most grave
forms of the use of force (those constituting an armed attack)
from other less grave forms’, given the importance of the latter
in the dispute between Nicaragua and the United States.
Although such ‘less grave forms’ of the use of force could not
provide a justification for exercise of the right of selfdefence,
they might be invoked to answer charges that the principle of
non-intervention in the internal affairs of a State had been
breached.1149The Court turned again to the Friendly Relations
Declaration because ‘[a]longside certain descriptions which
may refer to aggression, this text includes others which refer
only to less grave forms of the use of force’.1150As examples
drawn from the Declaration, the Court noted a duty upon
States ‘to refrain from acts of reprisal involving the use of
force’, ‘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’, ‘to refrain from organizing or
encouraging the organization of irregular forces or armed
bands, including mercenaries, for incursion into the territory of
another State’, and ‘to refrain from organizing, instigating,
assisting or participating in acts of civil strife or terrorist acts in
another State or acquiescing in organized activities within its
territory directed towards the commission of such acts, when
the acts referred to in the present paragraph involve a threat
or use of force’.1151
114851Crawford (2012), p. 178.

247 and p. 127, para 249.
1150Ibid., pp. 101-102, para 191.
115154Ibid.
4 Individual and Collective Self-Defence
The Court noted that under customary law there were

exceptions to the prohibition on the use of force. In particular,
it pointed to the right to both individual and collective self-
defence, something that finds codification in article 51 of the
Charter of the United Nations.1152Returning again to the
Declaration on Friendly Relations, it pointed to the following
caveat: ‘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’. According to the Court, ‘[t]his 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’. 1153The
Court recalled that it was not expressing any view on the
lawfulness of a response to an imminent threat of armed
attack and that it was concerned only with one that had
already occurred. It noted that the lawfulness of measures
taken in selfdefence depended upon observance of criteria of
necessity and proportionality.1154In this respect, the Court
concluded that the acts of the United States could not be
described as either necessary or proportionate under the
circumstances.1155
Because the United States had invoked the right of
collective self-defence, the Court considered it was required to
examine evidence of the use of force by Nicaragua. It noted
that ‘[t]he possible lawfulness of a response to the imminent
threat of an armed attack which has not yet taken place has
not been raised’ and that, consequently, it was required ‘to
determine first whether such attack has occurred, and if so
115255For discussion of the travaux preparatories of article 51, see ibid.,

Dissenting Opinion of Judge Oda, pp. 253-258, paras 91-96.
193.
1154 Ibid., p. 103, para 194.
51
1155Ibid., pp. 122-123, para 237.

322 W. Schabas
whether the measures allegedly taken in self-defence were a
legally appropriate reaction as a matter of collective self-
defence’.1156The Court referred to the Counter-Memorial of the
United States on jurisdiction and admissibility, where it was
alleged that Nicaragua had ‘promoted and supported guerilla
violence in neighbouring countries’, especially El Salvador, but
also Guatemala, Costa Rica and Honduras, and that it had
conducted cross-border military attacks on Honduras and
Costa Rica.1157The Court found that until early 1981 ‘an
intermittent flow of arms was routed via the territory of
Nicaragua to the armed opposition in El Salvador’, but it said
‘the evidence is insufficient to satisfy the Court that, since the
early months of 1981, assistance has continued to reach the
Salvadorian armed opposition from the territory of Nicaragua
on any significant scale, or that the Government of Nicaragua
was responsible for any flow of arms at either period’. 1158It said
that there was evidence of certain trans-border military
incursions into the territories of Honduras and Costa Rica that
could be imputed to Nicaragua, but was sceptical about
evidence that these States had requested protection by the
United States.1159
The Court turned to another General Assembly resolution,
that of 1974 setting out the definition of aggression, in order
to identify the criteria necessary for the existence of an ‘armed
attack’.1160It said that the exercise of individual self-defence
was conditioned on the State having been the victim of an
‘armed attack’.1161With reference to article 3(g) of the definition
of aggression, the Court said 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
1156Ibid., pp. 27-28, para 35.

1157Ibid., pp. 71-72, para 128.
1158 Ibid., p. 86, para. 160 and p. 119, paras 229-230.
1159Ibid., pp. 87-88, paras 164-166 and pp. 119-121, paras
231-234.
1160UNGA Res. 3314 (XXIX), ‘Definition of Aggression’, 14
December 1974.
195.
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”’.1162It explained that this
description reflected customary international law. Furthermore,
‘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 refused to extend the
scope of an armed attack under customary law to ‘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.’1163
The notion of ‘collective self-defence’ owes its existence to
the Charter of the United Nations. Arguably, the word
‘inherent’ in article 51 is meant to modify ‘individual’ and not
‘collective’. As Judge Jennings noted in his dissenting opinion,
‘collective self-defence is a concept that lends itself to abuse’.
He said that ‘[o]ne must therefore sympathize with the anxiety
of the Court to define it in terms of some strictness’. 1164The
Court required that the State that is the victim of the armed
attack ‘must form and declare the view that it has been so
attacked. There is no rule in customary international law
permitting another State to exercise the right of collective self-
defence on the basis of its own assessment of the
situation.’1165The Court insisted that ‘under international law in
1162For discussion of the drafting of the Declaration on

Aggression, see ibid., Dissenting Opinion of Judge Schwebel, pp.
340-347, paras 162-171.
195 and p. 119, para 230.
1164 Ibid., Dissenting Opinion of Judge Jennings, p. 533.
61

195.
324 W. Schabas
force today - whether customary international law or that of
the United Nations system - States do not have a right of
“collective” armed response to acts which do not constitute an
“armed attack”’.1166According to the Court, the Central
American States themselves did not appear to consider that
they had been victims of an ‘armed attack’ at the relevant
times. Thus, what the Court described as a sine qua non for
exercise of ‘collective self defence’ was simply not present and
could not therefore justify the use of force by the United
States.1167It also said ‘there is no rule permitting the exercise of
collective selfdefence 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
1166Ibid., pp. 110-111, para 211.

1167 Ibid., pp. 122-123, para 237.
10
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.’1168
The second sentence of article 51 of the Charter of the
United Nations requires that measures taken by States in the
exercise of the inherent right of self-defence ‘shall be
immediately reported to the Security 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 Court did not consider
this requirement to be contained within the customary law on
the right of self-defence. It said that it was ‘not a condition of
the lawfulness of the use of force in self-defence that a
procedure so closely dependent on the content of a treaty
commitment and of the institutions established by it, should
have been followed’. Nevertheless, to the extent that self-
defence is invoked to justify measures that would otherwise
breach both the principle prohibiting resort to force in both
customary law and the Charter of the United Nations, the
Court said that ‘it is to be expected that the conditions of the
Charter should be respected’. Consequently, the reporting
requirement in the second sentence of article 51 is relevant to
the customary law analysis because ‘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’.1169The Court noted that at no time had the United
States addressed such a report to the Security Council.
Acknowledging that it was without jurisdiction to find the
United States to be in breach of the article 51 requirement, the
Court said however that its conduct ‘ hardly conforms with the
latter’s avowed conviction that it was acting in the context of
collective self-defence’.1170It pointed out that the United States
had itself taken the position in the Security Council that a
failure to observe the report requirement contradicted the
1168Ibid., p. 105, para 199.
1170Ibid., pp. 121-122, para 235.
326 W. Schabas
claim of a State to be acting on the basis of collective self-
defence.1171The Court’s reference concerned a statement by
the United States with respect to Soviet military activity in
Afghanistan in 1980.
5 Subsequent Case Law of the Court and the

Judgment in Military and Paramilitary Activities
Issues concerning the use of force and the inherent right of

self-defence have returned to the Court on several occasions
since the Nicaragua cases. In its 1996 Advisory Opinion on
nuclear weapons, the Court repeated its pronouncement in
Military and Paramilitary Activities in and against Nicaragua about the
requirement that any measures of self-defence meet
conditions of necessity and proportionality.75When it then
declared that ‘[t]he proportionality principle may thus not in
itself exclude the use of nuclear weapons in self-defence in all
circumstances’,76the Court opened the door for its controversial
holding that the use of nuclear weapons might be lawful in ‘an
extreme circumstance of self-defence, in which [a State’s] very
survival would be at stake’.77Judge Koroma, in his separate
opinion, argued that in Nicaragua the Court had ‘rejected the
assertion that the right of self-defence is not subject to
international law’, but that in its Advisory Opinion it ‘would
appear to be departing from its own jurisprudence by saying
that it cannot determine conclusively whether or not it would
be lawful for a State to use nuclear weapons’.78
The Oil Platforms case,79taken by Iran against the United
States, bore many similarities with Military and Paramilitary Activities in
and against Nicaragua. In a dissenting opinion, Judge Elaraby
compared the firm language in Nicaragua with the ‘rather
truncated and consequently incomplete’ dispositif that the Court
adopted. He expressed concern ‘that the parameters defined in
the United Nations Charter and reaffirmed by the Court’s
jurisprudence established in the Nicaragua case may be
detrimentally affected as a result of the formulation
adopted’.80With reference to Nicaragua, he said that the Court
should have ‘[p]ronounce[d] in clear terms that the use of
force by the United States was a breach of its obligations
1171Ibid., citing UN Doc. S/PV.2187.

under customary international law not to use force in any form
against another State’.81Attractive as his views may seem,
Judge Kooijmans was undoubtedly correct to insist that the
case was about a bi-lateral treaty rather than the obligations of
the United States under customary international law. He
explained that ‘[i]n spite of the similarities between the
Nicaragua case and the present case, this essential difference
should be kept in mind continuously since in the present case
the Court’s jurisdiction is considerably more limited’. 82The Court
recalled its insistence that measures taken in self-defence be
necessary and proportionate, and that this is not something
whose assessment is left to the subjective judgment of the
party.83The Court also signalled its statement in Nicaragua
distinguishing between armed attack capable of justifying
resort to self-defence and ‘less grave forms’ of the use of
force.8411721173
1172Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 245,
para 41 (hereinafter ‘Legality of the Threat or Use of Nuclear Weapons’); see also ibid., Dissenting
Opinion of Judge Higgins, p. 583, paras 4-5.
1173Legality of the Threat or Use of Nuclear Weapons, supra n. 75, p. 245, para 42.
11
Ibid., p. 263, para 97.
78
Ibid., Dissenting Opinion of Judge Koroma, p. 561.
79
See Oil Platforms (Islamic Republic ofIran v. United States ofAmerica), Merits, Judgment, ICJ Reports
2003,
80 p. 161 (hereinafter ‘Oil Platforms (Merits)’).
Ibid., Dissenting Opinion of Judge Elaraby, p. 292.
81
Ibid.
2
Oil Platforms (Merits), supra n. 79, Separate Opinion of Judge
Kooijmans, p. 251, para 17 and Separate Opinion of Judge
Owada, pp. 315-316, para 32 and p. 318, para 37.
83
Oil Platforms (Merits), supra n. 79, p. 183, para 43, pp. 196-197,
para
90 74223,
Ibid., p. and p. 198, para 76. 84Ibid., pp. 186-187, para 51 and
pp.
para191-192,
147. para 64.
328 W. Schabas
The issue of self-defence also arose in the Advisory Opinion
on the Wall, but the Court, without citing Military and Paramilitary
Activities in and against Nicaragua, said that article 51 of the Charter
had no application to the case.1174Judge Higgins expressly
disagreed with the Court’s holding in Nicaragua that selfdefence
could only be invoked in response to an armed attack although
‘accepting, as I must, that this is to be regarded as a
statement of the law as it now stands’.1175With reference to the
1986 judgment, the Court affirmed that ‘the principles as to
the use of force incorporated in the Charter reflect customary
international law’.1176
Finally, issues concerning the use of force were also
considered by the Court in Armed Activities on the Territory of the Congo.
The case concerned military intervention in the eastern part of
the Democratic Republic of the Congo by Ugandan troops.
Parallel claims were filed against Rwanda and Burundi but they
were soon discontinued.1177Issuing judgment on the merits in
the Ugandan case, the Court began by noting that self-defence
was invoked only with respect to an armed attack that had
already occurred, recalling that this was also the case in
Nicaragua and that it had expressed no view on the issue of the
lawfulness of a response to the imminent threat of armed
attack. ‘So it is in the present case’, said the Court. 1178However,
it said it felt constrained to note that a Ugandan High
Command document concerning the presence of its troops in
the Democratic Republic of the Congo did not make reference
to armed attacks that had already occurred. Rather, the
document justified this with reference to ‘Uganda’s legitimate
security interests’ in a context that was ‘essentially
preventative’. The Court concluded that there was no legal or
1174Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, ICJ Reports 2004, p. 194, para 139 (hereinafter ‘Legal Consequences of the Construction of a
Wall’).
1175Ibid., Separate Opinion of Judge Higgins, p. 215, para 33.
1176Legal Consequences of the Construction of a Wall, supra n. 85, p. 171, para 87.
1177Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi),
Order of 30 January 2001, ICJ Reports 2001, p. 3; Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Rwanda), Order of 30 January 2001.
1178Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, ICJ Reports 2005, p. 222, para 143 (hereinafter ‘ Armed Activities on the Territory of the
factual basis for a claim of self-defence by Uganda and
therefore no need to address ‘whether and under what
conditions contemporary international law provides for a right
of self-defence against large-scale attacks by irregular forces’.
It also said that it need not consider the issues of necessity
and proportionality. Nevertheless, it observed that ‘the taking
of airports and towns many hundreds of kilometres from
Uganda’s border would not seem proportionate to the series of
transborder attacks it claimed had given rise to the right of
self-defence, nor to be necessary to that end’.1179
The Court’s reserved approach came in for criticism from
some of its members. Citing Nicaragua, Judge Kooijmans
criticized the failure to ‘answer the question as
Ibid., p. 223,
90
1179 Congo (Judgment)’).
para 147.
330 W. Schabas
to the kind of action a victim State is entitled to take if the
armed operation by irregulars, “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” (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports
1986, p. 103, para. 195) but no involvement of the “host
Government” can be proved’.1180Judge Elaraby pointed to the
Court’s recognition, in Nicaragua, that article 3(g) of the General
Assembly Declaration on Aggression should be taken as a
statement of customary international law:
The gravity of the factual circumstances and context of
the present case dwarfs that of the Nicaragua case. The
acknowledgment by the Court of the customary
international law status of the definition of aggression is
of considerable importance to the instant case and in
particular to the Democratic Republic of the Congo’s
claim that Uganda has violated the prohibition of
aggression in international law. Indeed the definition of
aggression applies a fortiori to the situation at hand: the full
force of the Charter provisions are applicable; the nature
and form of the activities under consideration fall far
more clearly within the scope of the definition; the
evidence before the Court is more complete and both
Parties have 1181
been present at all stages of the
proceedings.
Describing the Court’s statement on aggression in the
Nicaragua case as dicta, Judge Elaraby insisted that it had rarely if
ever been called upon to pronounce itself on such an
egregious case of aggression. ‘This makes it all the more
important for the Court to consider the question carefully and
— in the light of its dicta in the Nicaragua case — to respond
positively to the Democratic Republic of the Congo’s allegation
that Ugandan armed activities against and on its territory
amount to aggression and constitute a breach of its obligations
under international law’, he said.1182
Judge Simma was also very critical for many of the same
reasons as Judges Kooijmans and Elaraby. He noted that
1180Ibid., Separate Opinion of Judge Kooijmans, p. 313, para
26.
1181Armed Activities on the Territory of the Congo (Judgment), supra n. 89,
Separate Opinion of Judge Elaraby, p. 331, para 16.
1182Ibid., p. 332, para 18.
‘[c]ompared to its scale and impact, the military adventures
the Court had to deal with in earlier cases, as in Corfu Channel,
Military and Paramilitary Activities in and against Nicaragua or Oil Platforms,
border on the insignificant’.1183According to Judge Simma,
‘[f]rom the Nicaragua case onwards the Court has made several
pronouncements on questions of use of force and self-defence
which are problematic less for the things they say than for the
questions they leave open, prominently among them the issue
of self-defence against armed attacks by non-State
actors’.1184He called upon the Court to reconsider the
‘restrictive reading’ of article 51 of the Charter that it adopted
in Nicaragua
1183Armed Activities on the Territory of the Congo (Judgment), supra n. 89,

Separate
Ibid., p. 223,
90 Opinion of Judge Simma, pp. 334-335, para 2.
1184 Ibid., p. 336, para 9.
para 147.
whereby an attack by a non-State group, even if on a large
scale, could not provide a justification for the exercise of the
right to self-defence.1185
6 Influence on the Rome Statute of the

International Criminal Court
The judgment of the International Court of Justice in Military and

Paramilitary Activities in and against Nicaragua was not without influence
in the negotiation of the Rome Statute of the International
Criminal Court, and particularly the amendments on the crime
of aggression that were adopted at the Kampala Review
Conference in June 2010.1186Two issues presented obstacles
that the Rome Conference of 1998 was unable to resolve: the
definition of the crime of aggression and the role of the
Security Council in authorizing the Court to exercise jurisdiction
over the crime.
With respect to the definition, the challenge was to
distinguish between acts of aggression warranting criminal
prosecution and those of lesser gravity, reflecting the words in
Nicaragua about ‘less grave’ forms of the use of force.
1187
The
Kampala Review Conference adopted a definition of the crime
of aggression that incorporates the acts of aggression listed in
the 1974 General Assembly Declaration. The reliance placed
upon the Declaration by the International Court of Justice was
regularly referred to during the negotiations of the definition in
the Rome Statute.1188Article 8 bis of the Rome Statute, which
entered into force in 2013 but which is not subject to exercise
of jurisdiction by the Court until 2017, states that the ‘crime of
aggression’ is an ‘act of aggression’ that ‘by its character,
gravity and scale, constitutes a manifest violation of the
Charter of the United Nations’. In a statement at the
1185Ibid., p. 337, para 11.

1186Res. RC/Res.6, ‘The crime of aggression’, 11 June 2010.
1187Zimmermann
statements by Observerand Freiberg (2015),the
States after p. 583.
adoption of resolution
1188For example, Historical
RC/Res.6 on the crime of Review of Developments Relating
to the Crime RC/11,
aggression, of Aggression,
p. 125. UN Doc.
101
Ibid., p. 126.
conclusion of the Kampala Conference, Cuba declared that ‘the
phrase “by its character, gravity and scale, constitutes a
manifest violation of the Charter of the United Nations” is
ambiguous and may give rise to problems, as it would be the
Court itself that would qualify these elements, with the usual
subjective factor’. According to Cuba, ‘the use of force by a
State in a manner inconsistent with the Charter of the United
Nations constitutes in itself a violation of the Charter’. 1189Along
similar lines, Iran declared that ‘[a]ny act of aggression is
serious by its very nature, irrespective of its consequences’. 101
1189PCNICC/2002/WGCA/L.1, 24 January 2002, paras 448-

449.
334 W. Schabas
The United States delegation, having boycotted the
negotiations of the definition of aggression that took place
prior to Kampala, just as it had done a quarter of a century
earlier in the oral hearing on the merits in Military and Paramilitary
Activities in and against Nicaragua, did not directly attack the consensus
that had been reached in the Special Working Group on the
Crime of Aggression. Instead, it attempted to introduce
Understandings aimed at attenuating the prohibition of
aggression. Two of the Understandings that were adopted
concern the threshold clause:
6. It is understood that aggression is the most serious
and dangerous form of the illegal use of force; and that a
determination whether an act of aggression has been
committed requires consideration of all the circumstances
of each particular case, including the gravity of the acts
concerned and their consequences, in accordance with
the Charter of the United Nations.
7. It is understood that in establishing whether an act
of aggression constitutes a manifest violation of the
Charter of the United Nations, the three components of
character, gravity and scale must be sufficient to justify a
“manifest” determination. No one component can be
significant enough to satisfy the manifest standard by
itself.
Both Understandings appear to constrain still further the
‘manifest violation’ threshold established in article 8 bis(1). The
language in Understanding 6 is derived from article 2 of the
definition of aggression in General Assembly Resolution 3314
(XXIX). Addition of the phrase ‘in accordance with the Charter
of the United Nations’ resulted from an Iranian proposal that
was politely accepted by the American delegation. It had the
consequence of transforming the Understanding so that any
use of force requires authorization by the Security
Council.1190This is in keeping with the concept of the
‘responsibility to protect’ as set out in a 2005 General
Assembly resolution.1191However, the hope of the American
delegation had been to widen this so that so-called
‘humanitarian intervention’ would be judged in light of its
professed purposes, even if it did not have Security Council
1190Ibid.
1191UNGA Res. 60/1, ‘2005 World Summit Outcome’, 24
October 2005, para 139.
authorization. An Understanding to this effect proposed by the
American delegation was rejected.1192
At the Rome Conference, the permanent members of the
Security Council had insisted that the Court could not proceed
with a prosecution for aggression unless it had prior
authorization from the Council.1193Although in a somewhat
different form, this was essentially the view advanced by the
United States in Nicaragua when it contended that the
International Court of Justice was without jurisdiction because
the use of force had been reserved to the Security Council by
article 39 of the Charter of the United Nations. The Court
rejected the position of the United States, as was noted in a
study prepared by the United Nations Secretariat to assist the
negotiations of the aggression provisions in the Rome
Statute.1194The permanent members persisted in their view
about the prerogatives of the Security Council up to and even
during the Kampala Conference. Ultimately, however, the
amendments that were adopted authorize the Prosecutor to
proceed with a case of aggression without any requirement
that she obtain the permission of the Security Council. In
explanation of vote, France said it had ‘decided not to oppose
the consensus, despite the fact that it cannot associate itself
with this draft text as it disregards the relevant provisions of
the Charter of the United Nations’. The United Kingdom
pointed to article 39 of the Charter and said ‘the text that has
been adopted cannot derogate from the primacy of the United
Nations Security Council in relation to the maintenance of
international peace and security’.1195
1192See Krep et al. (2011).

11939th plenary meeting, 17 July 1998, UN Doc.
A/CONF.183/SR.9, para 51 (United Kingdom).
1194Historical Review of Developments Relating to the Crime
of Aggression, supra n. 99, paras 435-437.
1195Statements by States Parties in explanation of position
after the adoption of resolution RC/Res.6 on the crime of
aggression, RC/11, Annex VIII, pp. 122-124.
336 W. Schabas
In her Separate Opinion in the Oil Platforms case, Judge Higgins

suggested that the United States had learned some lessons
from the Nicaragua judgment. She noted that ‘[t]he United
States - perhaps especially remembering the injunction of the
Court in the Military and Paramilitary Activities in and against Nicaragua (Nica-
ragua v. United States of America) of 1986 as to the legal requirement
of reporting any self-defence measures to the Security Council
- had taken care to do so in this instance’.1196Nevertheless, the
United States continues to contest an inexorable legal
development, manifested most vividly in Military and Paramilitary
Activities in and against Nicaragua, towards limitation of the use of
force. It fought a rearguard action at the 2010 Kampala
Conference out of concern that the use of force dressed up as
humanitarian intervention might be deemed a manifest
violation of the Charter of the United Nations. It has continued
its campaign to block the measures required by articles 15 bis
and 15 ter of the Rome Statute that will enable the
International Criminal Court to exercise jurisdiction over the
crime of aggression.
Referring to the provisions of the Charter of the United
Nations on the use of force, the High-level Panel on Threats,
Challenges and Change convened by the Secretary-General of
the United Nations in 2004 observed that ‘[f]or the first forty-
four years of the United Nations, Member States often violated
these rules and used military force literally hundreds of times,
with a paralyzed Security Council passing very few Chapter VII
resolutions and Article 51 only rarely providing credible
cover’.1197The Panel pointed to the end of the Cold War as the
turning point. It also
1196Oil Platforms (Merits), supra n. 79, Separate Opinion of Judge

Higgins, pp. 238-239, para 50.
1197A More Secure World: Our Shared Responsibility, annexed
to UN Doc. A/59/565, 2 December 2004, para 186 (references
omitted). One authority indicated by the Panel was Franck
(1987).
observed that ‘ [t]here were fewer inter-State wars in the
last half of the twentieth century than in the first half’. 1198But
this view greatly understates the situation. It exaggerates the
scale of post-1945 international armed conflicts and neglects
the importance of developments in public international law.
The two world wars of the first half of the twentieth century
accounted for approximately 90 million deaths, or an average
of about 2 million victims a year. During those 50 years many
other armed conflicts resulted in huge numbers of casualties
but it is unnecessary to add them to the total for the purposes
of this demonstration. The world’s population now exceeds
seven billion whereas it was two billion until 1950. When the
first half of the twentieth century is compared with the early
years of the twenty-first century, the contemporary equivalent
of the previous century’s fatality rate due to international
armed conflict would be about 7 million per annum. Yet there
have surely not been 7 million deaths due to international
armed conflict in any of the first fifteen years of the century.
In fact, there have not been 7 million deaths due to
international armed conflict over the entire fifteen-year period.
Probably there have not been 7 million deaths during that time
due to armed conflict altogether, both non-international and
international.
The 1986 judgment of the International Criminal Court in
Military and Paramilitary Activities in and against Nicaragua is a landmark in
the history of the Court as well as in the progressive
development of international law on the use of force. It
brought an end to doldrums in which the Court had long
languished. Over the twenty-five years prior to the Nicaragua
judgment, only seventeen applications had been filed with the
Court. Perhaps its noble reputation, burnished by Corfu Channel,
had suffered from the equivocations of the South-West Africa
cases. All of that changed with Nicaragua. Over the twenty-five
years that followed judgment, there were eighty-one
applications. Since the time of the Monroe Doctrine, the United
States had used real or threatened military power to impose its
11 will on States throughout the hemisphere. In 1986, much
0
1198Ibid., para 11.
338 W. Schabas
of the world was impressed, indeed breathless, with a Court
that could call Washington to account. The International Court
of Justice deserves great credit for its independence,
impartiality and integrity. And Nicaragua deserves great credit
for taking the case.
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Zimmermann A, Freiberg E (2015) Article 8 bis. Crime of
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the Rome Statute of the International Criminal Court,
Observers’ Notes, Article by Article, 3rd edn. C.H.
Beck/Nomos/Hart, Munich/Baden-Baden/Oxford, pp 568-
606
William Schabas OC
MRIA is professor of international law at
Middlesex University, London; Professor of international
criminal law and human rights at Leiden University and emeritus
professor of human rights law, National University of Ireland
Galway.
International Law of the Sea
and the Nicaraguan Cases
Donald R. Rothwell
Abstract When considered in sum, the Nicaraguan ICJ cases

have made significant contributions to the development of the
law of the sea and to international law more generally. The
most prominent of the ICJ Nicaraguan law of the sea cases
has been the 2012 Territorial and Maritime Dispute (Nicaragua v. Colombia)
case where the Court was called upon to determine
sovereignty over a number of islands and maritime features in
the South-Western Caribbean Sea claimed by Nicaragua and
Colombia, the maritime entitlements of those features, and the
consequent exclusive economic zone (EEZ)/continental shelf
boundary. That case has particular significance in terms of
how the ICJ sought to characterise certain maritime features in
the Caribbean Sea, and how it then determined the relevant
maritime boundary. This chapter reviews these and other
Nicaraguan cases before the ICJ which have had an impact on
the development of the law of the sea. The analysis proceeds
on the basis of an assessment of the particular law of the sea
dimension which the ICJ commented upon in its judgments.
Six law of the sea issues are assessed commencing with the
characterisation of maritime features, followed by the status of
low-tide elevations, historic bays, internal waters, the regime
of islands, and the delimitation of maritime boundaries.
Contents
1 Introduction..................................................................................................................................... 328
2 The Nicaraguan Cases and the Law of the Sea............................................................................... 330
2.1 Characterisation of Maritime Features.................................................................................. 330
2.2 Low-Tide Elevations............................................................................................................ 332
2.3 Historic Bays........................................................................................................................ 334
2.4 Internal Waters..................................................................................................................... 336
2.5 Regime of Islands................................................................................................................. 338
2.6 Maritime Boundary Delimitation......................................................................................... 339
3 Concluding Remarks...................................................................................................................... 344
References............................................................................................................................................. 346
3
2
7
328 D.R. Rothwell
D.R. Rothwell (*)
ANU College of Law, Acton,
ACT, Australia e-mail:
donald.rothwell@anu.edu.au
9_14
1 Introduction
The international law of the sea has undergone significant

development over the course of the past 100 years. Initially
through the development via state practice of customary
international law, maritime zones such as the territorial sea
and continental shelf were recognised,1199and then in 1958
with the adoption of the four Geneva Conventions on the Law
of the Sea1200significant content was given in treaty law for the
first time to a number of maritime zones, and the regime of
the high seas. Significantly the International Court of Justice
soon after its creation also began to make major contributions
to the development of the law of the sea, with the Court’s very
first judgment in Corfu Channel1201establishing jurisprudence on
the principles associated with navigational rights and freedoms
especially with respect to warships. Notwithstanding the failure
of the 1960 Second United Nations Conference on the Law of
the Sea to resolve some ongoing issues, the law of the sea
continued to develop during the 1960s and 1970s via state
practice, during which time fishing zones gained greater
acceptance. The 1970s ultimately proved to be the high point
in terms of the modern development of the law of the sea
during which time the Third United Nations Conference on the
1199Jessup (1970).
12002Convention on the Territorial Sea and Contiguous Zone
(adopted 29 April 1958, entered into force on 10 September
1964) 516 UNTS 206; Convention on the High Seas (adopted 29
April 1958, entered into force on 30 September 1962) 450 UNTS
11; Convention on Fishing and Conservation of the Living
Resources of the High Seas (adopted 29 April 1958, entered
into force on 20 March 1966) 559 UNTS 285; Convention on the
Continental Shelf (adopted 29 April 1958, entered into force on
10 June 1964) 499 UNTS 311.
12013Corfu Channel Case (UK v. Albania), Merits, Judgment, ICJ Reports, 1949, p. 4.
International Law of the Sea and the Nicaraguan Cases 329
Law of the Sea convened in order to negotiate a
comprehensive single treaty, culminating in 1982 with the
conclusion of the United Nations Convention on the Law of the
Sea.1202Though UNCLOS did not enter into force until 1994, a
number of its provisions were relatively quickly recognised by
the ICJ as reflecting customary international law, and since
that time the importance of UNCLOS has only continued to
grow through ongoing state practice and the developing
jurisprudence of not only the ICJ but other international courts
and tribunals such as the International Tribunal for the Law of
the Sea and Annex VII Arbitral Tribunals established ad hoc
under UNCLOS mechanisms to determine individual disputes.
The law of the sea is now at a point of its development where
through treaty law, customary international law, and the
decisions of international courts and tribunals it remains one of
the more developed and sophisticated areas of contemporary
international law.
Given this background, and the role of the ICJ, some of the
Nicaraguan cases before the ICJ have been significant in the
development and clarification of certain aspects of the law of
the sea. In some instances, the law of the sea dimension has
been relatively minor, while in others it has been more central.
Nevertheless, when
6
Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, Judgment, ICJ Reports 2012,
1202
p. 624United
4
Nations‘Nicaragua
(hereinafter Convention on (Merits)’).
v. Colombia the Law of the Sea
(adopted 10 December 1982, entered into force on 16
November 1994) 1833 UNTS 397.
330 D.R. Rothwell
considered in sum, the Nicaraguan ICJ cases with a law of the
sea dimension have made significant contributions to the
development of the law of the sea and to international law
more generally.
For example, one of the fundamental norms upon which law
of the sea has historically been grounded and which is
reflected in the modern law of the sea under UNCLOS is the
freedom of navigation. However, as coastal state entitlements
to a range of maritime zones have been recognised over the
past 50 years there has been an increased need to balance the
rights and interests of coastal and maritime states with respect
to how the freedom of navigation is exercised. The ICJ
summed up the process of balancing these various rights and
interests in the Case Concerning Military and Paramilitary Activities in and
Against Nicaragua, just 4 years after the conclusion of UNCLOS.
The Court observed that:
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 of the freedom
necessary for maritime navigation.1203
This statement encapsulates some of the key principles
upon which this body of the international law of the sea is
based and which continues to have an impact.
The most prominent of the ICJ Nicaraguan law of the sea
cases to date has been the 2012 Territorial and Maritime Dispute
(Nicaragua v. Colombia) case
1204
where the Court was called upon to
determine sovereignty over a number of islands and maritime
features in the South-Western Caribbean Sea claimed by
Nicaragua and Colombia, the maritime entitlements of those
features, and the consequent exclusive economic zone
(EEZ)/continental shelf boundary. That case has particular
significance in terms of how the ICJ sought to characterise
certain maritime features in the Caribbean Sea, and how it
1203Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, ICJ Reports 1986, para 214 (hereinafter ‘Nicaragua v. United States
1204(Merits)’).
then determined the relevant maritime boundary.
This chapter will review the Nicaraguan cases before the ICJ
which have had an impact on the development of the law of
the sea. The analysis will proceed on the basis of an
assessment of the particular law of the sea dimension which
the ICJ commented upon in its judgment. To that end, where
necessary some context will be given to the relevant law of the
sea dimension and the maritime dimension of the Nicaraguan
case before the ICJ. A total of six law of the sea issues have
been chosen for deliberation. They are:
• The characterisation of maritime features
• Low-tide elevations
• Historic Bays
• Internal Waters
• Regime of Islands
6
Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, Judgment, ICJ Reports 2012,
p. 624 (hereinafter ‘Nicaragua v. Colombia (Merits)’).
332 D.R. Rothwell
• Maritime Boundary Delimitation
In conclusion some observations will be made with respect
to how this ICJ jurisprudence in the Nicaragua cases has
impacted upon the development of the law of the sea.
2 The Nicaraguan Cases and the Law of the Sea
2.1 Characterisation of Maritime Features

A central aspect of UNCLOS is that it confers entitlements to
assert a claim over a maritime zone to a ‘coastal
State’.1205While the term ‘coastal State’ is not defined in
UNCLOS it is taken to encompass any state that has a
territorial entitlement which encompasses a sea
coast.1206Problematic issues arise with respect to maritime
features claimed by coastal states, including those that have
been subject to territorial claim or which are encompassed
within territorial claims, and the capacity of those features to
generate maritime zones. These features will range in size
from islands, as properly defined, through the whole gamut of
associated maritime features including atolls, cays, islets,
rocks, banks, shoals, and reefs. The status of these features,
and their ability to be subject to territorial claim and their
ultimate capacity to generate maritime zones can be
contentious.
In the case of islands, the ‘Regime of Islands’ is specifically
referred to in Part VIII of UNCLOS. Article 121(1) defines an
island as ‘a naturally formed area of land, surrounded by
water, which is above water at high tide’. An artificial island
does not therefore meet the criteria, nor does an area of land
not above water at high tide, which may in other respects
meet the criteria of a low-tide elevation.1207Rocks, shoals, or
reefs which may be visible at low tide are therefore not islands
1205See, e.g., UNCLOS, Arts. 2, 33, 56, 76.
1206To that end UNCLOS make direct reference to a ‘land-
locked State’ which is a ‘State which has no sea-coast’:
UNCLOS, Art. 124(1)(a).
1207UNCLOS, Art. 13(1) defines a low-tide elevation as ‘a
naturally formed area of land which is surrounded by and
above water at low tide but submerged at high tide’.
for the purposes of UNCLOS. The importance of Article 121(1)
islands is that they generate the complete range of maritime
zones extending from a 12 nautical mile territorial sea to a
continental shelf with a minimum entitlement of 200 nautical
miles, though in some instances the entitlement may be more
extensive.1208A small island is therefore capable of generating a
continental shelf or EEZ that may be many times the size of
the island’s land dimensions and considerably more eco-
nomically valuable in terms of living and non-living natural
resources. The only exception to this entitlement is the case of
islands that may be characterised as
1208Coastal states are able to claim a continental shelf beyond

200 nautical miles if the geomorphological structure of the
continental
6
shelfDispute
Territorial and Maritime meets the v.
(Nicaragua criteria set
Colombia), down
Merits, in ICJ
Judgment, UNCLOS,
Reports 2012,
p. 624 76.
Article (hereinafter ‘Nicaragua v. Colombia (Merits)’).
rocks, even though they may be above water at high tide.
Rocks which ‘cannot sustain human habitation or an economic
life of their own’ do not enjoy an entitlement to a continental
shelf or an EEZ,1209but will still nonetheless enjoy a territorial
sea and contiguous zone. Unsurprisingly these provisions of
UNCLOS have generated some analysis and consideration by
international courts as to the distinction between islands and
rocks and the differential entitlements they enjoy to maritime
zones.
A major feature of the South-Western Caribbean Sea case was the
maritime features found in the sea areas that were the subject
of dispute between Colombia and Nicaragua.1210In this respect
the Court took the step of actually seeking to characterise
seven maritime features in the disputed area. These were the:
• Alburquerque Cays,
• East-Southeast Cays,
• Roncador,
• Serrana,
• Quitasueno,
• Serranilla, and
• Bajo Nuevo.
1211
Some of these maritime features are of considerable size.

Alburquerque, for example is an atoll with a diameter of about
8 km, within which there are two cays: North and South Cay.
In assessing the status of these features the ICJ defined for
the first time the characteristics of these features, including
cays, atolls, banks, and shoals.1212A key threshold issue for
determination was the capacity of these features to be subject
to appropriation and the Court reaffirmed established
principles in this respect by distinguishing between the
capacity of islands, even very small islands, to be subject to
appropriation, while low-tide elevations cannot be
1209“UNCLOS, Art. 121(3).

1210For more specific analysis of this case see contribution by
Lawrence H Martin and Yuri Parkhomenko.
15
Ibid., para
1211 26;v.referring
Nicaragua to Maritimepara
Colombia (Merits), 24. and Territorial Questions between Qatar
Delimitation
and
1212Ibid., para 20. For example, the ICJ defined cays as
Bahrain (Qatar v. Bahrain), Merits, Judgment, ICJ Reports 2001, para 206 (hereinafter
‘small,
‘Qatar low islands composed largely of sand
v. Bahrain (Merits)’).
appropriated other than if they fall within the territorial sea. 1213
An issue that particularly confronted the Court in the South-
Western Caribbean Sea case was its capacity to be able to
distinguish between maritime features that were properly
islands, and those which were properly low-tide elevations,
and in that respect the ICJ was mindful of the need for
appropriate evidence to demonstrate that a feature was above
water at high tide.1214This was an issue that was particularly
significant in the case of Quitasueno, which was described by
the Court
1213derived from the physical breakdown of coral reefs by

wave action and subsequent reworking by wind’: Ibid.
1214Nicaragua v. Colombia (Merits), para 36.
336 D.R. Rothwell
as a ‘large bank approximately 57 km long and 20 km
wide’.1215The parties differed as to their characterisation of the
features associated with Quitasueño. In this respect, the Court
restated the requirement under Article 121(1) of UNCLOS that
an island was ‘naturally formed’ and that international law
focusses on whether the feature is above water at high tide
rather than its geological composition.1216
2.2 Low-Tide Elevations
The law of the sea has grappled with how to deal with low-tide
elevations. The principal difficulty is their characterisation;
which was highlighted in the Qatar/ Bahrain case when the ICJ
was presented with conflicting submissions as to whether
certain features were either islands or low-tide
elevations.1217Often because they are disconnected from the
coastline, they are not part of the geographic coast. Likewise,
their size and the fact that they are washed at high tide
excludes them from being considered islands.1218As Article 6
separately refers to reefs, there is a further distinction
between those features and low-tide elevations. Article 13
makes clear that a low-tide elevation must meet three criteria:
that it is a naturally formed area of land, that it is surrounded
by and above water at low tide, and that it is submerged at
high tide. Such a feature could therefore include a rock or
rocks (of varying size), shoals, and sandbars. That sandbars
could be legitimately included in this category emphasises that
UNCLOS does not make any reference to the permanence of
1215 Ibid., para 24.
11
1216Ibid., para 37.

1217Qatar v. Bahrain (Merits), paras 191-195, where the Court was
eventually satisfied that Qit’at Jaradah was an island as it
fulfilled the criteria set out in UNCLOS, Art. 121. In this case
the Court was also confronted with how to address competing
sovereignty claims over these features; see ibid., para 200-209.
1218UNCLOS, Art. 121(1) defines an island as being ‘a
naturally formed area of land, surrounded by water, which is
above water at high tide’.
the feature, other than that it is submerged at high tide. The
difficulty which arises with respect to low-tide elevations is that
Articles 7 and 13 of UNCLOS when combined make clear that
whilst a low-tide elevation may generate a territorial sea from
a low-water baseline, they cannot be relied upon for the
drawing of straight baselines unless lighthouses or other
similar installations which are permanently above sea level
have been built upon these features, or there has been
general international recognition of the legitimacy of the use of
such features for the drawing of baselines.
In South-Western Caribbean Sea the distinction between islands,
rocks and low-tide elevations was an important one and
became particularly relevant in the context of the
characterisation of some of the individual features on
Quitasueno where Nicaragua and Colombia took differing
positions as to whether the features qualified as islands. 1219The
Nicaraguan position was that the features on Quitasueño were
permanently submerged at high tide and party relied upon a
1937 survey to support its position. Colombia on the other
hand relied upon two surveys from 2008 and 2010 which
asserted there were 34 individual features on Quitasueno
which qualified as islands, and that within 12 nautical miles of
those features there were an additional 20 low-tide elevations.
These features were identified as QS1 to QS 54.1220A
particularly contested feature was QS32, where differing
positions were taken by Nicaragua and Colombia based on
their reliance upon tide models for calculating whether the
feature was or was not above water at high tide, and whether
the feature was a naturally formed area of land because of the
coral debris located there. Nicaragua also placed particular
significance upon the size of the feature, asserting that QS32
measured some ‘10 to 20 cm’ with the effect that it was not an
island for the purposes of international law. Colombia had
countered by arguing that customary international law did not
prescribe a minimum size for a maritime feature to qualify as
1219Nicaragua v. Colombia (Merits), para 36.

1220Ibid., paras 28-29.
338 D.R. Rothwell
an island. 1221
The Court assessed the various evidence on this matter and

notwithstanding the differing tidal models it was clear that
QS32 was above water at high tide. Nicaragua’s contention
that because QS32 was composed of coral debris meant that it
did not qualify as an island was considered to be ‘without
merit’, with the ICJ observing that:
International law defines an island by reference to whether
it is “naturally formed” and
whether it is above water at high tide, not by reference to
its geological composition.1222
That QS32 was also very small was not considered to make
a difference ‘since international law does not prescribe any
minimum size which a feature must possess in order to be
considered an island.’1223
While QS32 was ultimately considered to be an island that
was subject to appropriation, the other maritime features of
Quitasueno that Colombia had asserted to be islands were not
considered to meet the necessary criteria but rather were low-
tide elevations.1224The result of this finding, when combined
with the effect of Article 13, was that Colombia was able to
rely upon low-tide elevations located within 12 nautical miles
of QS32 for the purposes of determining the territorial sea
baseline.1225However, as the status of QS32 as anything other
than a rock had not been contested, Colombia was not able to
claim either an EEZ or continental shelf from Quitasueño.1226
2.3 Historic Bays
Any historical review of the law of the sea will immediately

reveal the importance of bays to the development of the law,
and the way in which coastal states first sought to regulate
activities in their adjacent offshore waters. It should therefore
be of no surprise that when the modern law of the sea came
1221Ibid., paras 30-33.

1222Ibid., para 37.
1223Ibid.
1224Ibid., para 38.
122521 Ibid., para 183.
1226Ibid.
to develop specific rules regarding bays some difficulty was
encountered in devising provisions which reflected the nature
of the different bodies of waters which may comprise a bay.
Article 10 of UNCLOS explicitly and implicitly recognises five
types of bays:
1. Historic bays, which are not subject to the straight baseline
system under Article 7 or generally dealt with under Article
10;
2. Bays which have been enclosed within internal waters as a
result of the drawing of straight baselines under Article 7; 1227
3. Bays which are subject to claims by more than one state,
which are not subject to the provisions of Article 10;
4. Bays which meet the criteria for recognition as a juridical
bay with natural entrance points of less than 24 nm;
5. Bays which meet the criteria for recognition as a juridical
bay with natural entrance points greater than 24 nm.
The importance attached to the recognition of a juridical
bay for the purpose of the LOSC is that a closing line may be
drawn across the entrance to the bay, or within the bay, with
the effect that the waters on the landward side of the line
become internal waters and the coastal state is able to delimit
the territorial sea from the baseline rather than the coastline of
the bay, which depending on the size of the bay may be
significant for the ultimate area of territorial sea the coastal
state may be able to claim. The ICJ declared in the 1992 Land,
Island and Maritime Frontier Dispute that the Article 10 of UNCLOS
provisions on bays ‘express general customary law’,1228and
state parties to UNCLOS are bound to adhere to them in good
faith. That finding was significant as neither El Salvador,
Honduras, or Nicaragua as the intervening state in the
122729This would be the case where there are offshore fringing

islands adjacent to the bay which has permitted the drawing of
straight baselines between the mainland and those islands,
effectively enclosing the bays within those offshore straight
baselines.
1228Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening),
Merits, Judgment, ICJ Reports 1992, para 383 (hereinafter ‘El Salvador/Honduras (Merits)’).
340 D.R. Rothwell
proceedings, were parties to the Convention on the Territorial
Sea and Contiguous Zone or UNCLOS, of which UNCLOS had
yet to enter into force at that time.1229
For Nicaragua, the status of the Gulf of Fonseca as either a
juridical bay or historic bay has been of some importance and
proved to be a catalyst for Nicaragua intervening in the Land,
Island and Maritime Frontier Dispute between El Salvador and
Honduras. State practice regarding historic bays has developed
over many centuries as a result of particular laws being
applied by coastal states to significant bays which either due
to their size or location were considered to be so economically,
politically or strategically significant they were equated to the
land area of that state for the purposes of sovereignty and
jurisdiction. The status of historic bays gained greater
recognition during the nineteenth century, and during the
twentieth century was directly referred to in early codifications
of the law of the sea and ultimately in the 1958 Convention on
the Territorial Sea and Contiguous Zone and Article 10(6) of
UNCLOS. However, both conventions specifically excluded his-
toric bays from the regime of juridical bays leaving their status
to customary international law.1230
Historic bays must be distinguished from the broader
concept of historic waters, which as the ICJ noted in the Anglo-
Norwegian Fisheries case would extend to ‘waters that are treated
as internal waters but which would not have that character
were it not for the existence of an historic
title.’1231Nevertheless, whilst there is a clear linkage between
the two types of waters, the ICJ noted in 1982 with reference
to the way this matter had been considered during UNCLOS III
that:
There are, however, references to “historic bays”, or
“historic titles” or historic reasons in a way amounting to
1229Ibid.
1230See generally Lathrop (2015), pp. 82-84.
1231Fisheries (United Kingdom v. Norway), Merits, Judgment, ICJ Reports 1951. This
broader concept of historic waters may extend to the waters
that fall within archipelagos, straits, or estuaries, or areas akin
to bays such as gulfs.
a clear reservation to the rules set forth therein. It seems
clear that the matter continues to be governed by
general international law which does not provide for a
single “regime” for “historic waters” or “historic bays”, but
only for a particular regime for each of the concrete, 1232
recognized cases of “historic waters” or “historic bays”.
This approach was endorsed by the ICJ in the Land, Island and
Maritime Frontier Dispute,where the Court also observed that the
regime of an historic bay in the case the Gulf of Fonseca was
1233
sui generis, suggesting that each historic bay may have its own
distinctive legal regime. The Court accordingly set about
determining what the precise regime was that governed the
Gulf and undertook an historical analysis of the Gulf from the
time of its discovery in 1522, and the exercise of sovereignty
over the bay by the Spanish and the present riparian states: El
Salvador, Honduras, and Nicaragua.1234The ICJ concluded that
the Gulf of Fonseca was an historic bay, observing that this
was the position of the three coastal States which was not
contested by the differing views of a third State.1235
Two principal issues are associated with historic bays. The
first is whether a coastal area and adjacent waters qualifies as
an historic bay. Not only did the ICJ in 1992 confirm the Gulf
of Fonseca as an historic bay, it also described it as a ‘pluri-
State bay’ because of joint sovereignty exercised by El
Salvador, Honduras and Nicaragua over the bay.12361237The
second issue is the delimitation of an historic bay from that of
the adjoining waters. Here the Court noted a particular aspect
of the Gulf given the presence of three coastal States:
Moreover, the Gulf being a bay with three coastal States,
there is a need for shipping to have
access to any of the coastal States through the main
channels between the bay and the
39
ocean.
Accordingly, there was a need to take into account the
1232Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p. 74.
1233El Salvador/Honduras (Merits), paras 384 and 412.
1234Ibid., paras 385-386.
123531 Ibid., paras 394.
1236Ibid., para 393. For further discussion of the notion of a
‘pluri-state bay’ see Rossi (2015).
1237El Salvador/Honduras (Merits), para 393.
342 D.R. Rothwell
legitimate rights of navigational access to the Gulf by each of
the three coastal States, as opposed to the navigational rights
and freedoms that were to be exercised by third states within
the waters of the Gulf and any adjoining territorial sea.
Assessing the history of the Gulf, the manner in which the
coastal States had exercised sovereignty over the waters of
the Gulf, and the ongoing significance of a 1917 Judgment of
the Central American Court of Justice, the ICJ concluded that:
the Gulf waters, other than the 3-mile maritime belts, are
historic waters and subject to joint
sovereignty of the three coastal States.1238
A remaining issue was the status of any closing line drawn
across the entrance to the Gulf of Fonseca. The ICJ noted that
a ‘normal geographical closing line’ for the waters of the Gulf
between the two natural entrance points had been that which
the three coastal states had recognised in their
practice.1239Therefore, a closing line for an historic bay
reflecting general principles of international law in its
delimitation and which has been accepted by other states
would have legitimacy.
2.4 Internal Waters
The sovereignty of the coastal State over its waters, including

certain adjacent waters, is a matter that has been central to
the development of the contemporary law of the sea as
reflected in both customary international law and treaty law.
The fundamental principle that the sovereignty of the state in
customary international law and Article 2(1) of the Charter of
the United Nations extends to the internal waters of the state
and to the territorial sea was recognised by the ICJ in 1986 in
the Case Concerning Military and Paramilitary Activities in and Against
1240
Nicaragua.

1239Ibid., para 410; the line is 19.75 nm in width.
1240Nicaragua v. United States (Merits), para 212.
The ICJ, which also commented on the sovereignty of the
coastal State also extending to territorial sea and the air space
above the territorial sea as reflected in the Convention on the
Territorial Sea and Contiguous Zone and UNCLOS, also
observed that ‘these prescriptions of treaty-law merely
respond to firmly established and longstanding tenets of
customary international law.’1241As internal waters fall within
the sovereign territory of a coastal State,1242the State has
recognised sovereignty over those waters fully encompassing
prescriptive and enforcement jurisdiction, subject only to the
limitations imposed under international law.
In Case Concerning Military and Paramilitary Activities in and Against Nicaragua
aspects of the regime of internal waters were briefly
considered in the context of access to ports within internal
waters, and the controls that the coastal State can legitimately
exercise over internal waters. The Court referred to the
customary international law right of innocent passage through
the territorial sea for the purpose of entering or leaving
internal waters, which Article 18(1)(b) of UNCLOS
codifies.1243Other than in this instance, UNCLOS is silent as to
whether foreign ships have a right of access to a port.
However, there is both treaty law and case law in support of
the general principle that a State does not have an unlimited
power to prohibit access to its ports.1244With particular
1241Ibid.
1242Ibid.,para 213.
1243Ibid.,para 214.
124446O’Connell (1982); Colombos (1967), pp. 176-177. The 1923
Convention and Statute on the International Regime of
Maritime Ports (adopted 9 December 1923, entered into force
26 July 1926) 58 LNTS 287 provides for a general recognition of
equality of treatment between the state parties with respect to
reciprocal rights of port access. This principle was later
recognised in the 1958 Saudi-Arabia v. Arabian American Oil Company (Aramco)
arbitration (1963) 27 ILR 117, where the arbitrator observed
that: ‘According to a great principle of public international law,
the ports of every State must be open to foreign merchant
344 D.R. Rothwell
reference to the laying of mines within the waters of a port
and the impact this has upon access to and from the port, the
ICJ also referred to not only the impact this activity has upon
navigation within the port and the sovereignty of a coastal
State over its internal waters, but also referred to the freedom
of communications and maritime commerce conferring a ‘right
of free access enjoyed by foreign ships’ to ports.1245This
statement is an important clarification of customary
international law with respect to the freedom of navigation as
it applies to ports.
The application of the regime of internal waters was also
considered by the ICJ in the context of the Gulf of Fonseca,
which as previously observed was a body of water
characterised by the Court as a ‘pluri-state’ or ‘three-State bay’
considered historic waters. A particular difficulty faced by the
ICJ was reconciling rights of navigation within the Gulf, akin to
rights of innocent passage in the territorial sea, with the status
of the Gulf as historic waters being akin to internal waters. The
ICJ observed as to the particular status of the Gulf waters
that:
The Gulf waters are therefore, if indeed internal waters,
internal waters subject to a special and particular regime,
not only of joint sovereignty but of rights of passage. It
might, therefore, be sensible to regard the waters of the
Gulf, insofar as they are 1246the subject of condominium or
co-ownership, as sui generis.
2.5 Regime of Islands
The Part VIII provisions of UNCLOS dealing with the ‘Regime

of Islands’ have become of increasing significance as coastal
states have begun to actively rely upon islands for the
purposes of Article 76 submissions to the Commission on the
Limits of the Continental Shelf for claims to a continental shelf
vessels and can only be closed when the vital interests of the
State47so require. ’
1245 Nicaragua v. United States (Merits), para 214.
1246El Salvador/Honduras (Merits), para 412.
beyond 200 nautical miles. In that regard, the distinction
between an Article 121(1) island and an Article 121(3) rock
has taken on particular significance because of the inability of
rocks to generate either an EEZ or a continental shelf.
Article 121 proved to be a particular focus of attention to
the ICJ in SouthWestern Caribbean Sea with respect to the significance
of the maritime features within the disputed area for the
purposes of the delimitation of the maritime boundary
between Nicaragua and Colombia. In this respect the Court
restated its view from Qatar v. Bahrain that the provisions of
Article 121(1) and (2) were a part of customary international
law.1247Attention was then given to the status of Article 121(3)
and its interaction with the other paragraphs in Article 121, a
point that had not been specifically addressed in Qatar v. Bahrain.
Here the ICJ observed that Article 121(3) provided an
‘essential link’ between the entitlements of islands, regardless
of their size, to generate the same maritime rights as land
territory ‘and the more extensive maritime entitlements
recognized in UNCLOS and which the Court has found to have
become part of customary international law.’1248The Court then
concluded this analysis by observing that:
[...] the legal regime of islands set out in UNCLOS Article
121 forms an indivisible regime, all of which (as Colombia
and Nicaragua recognize) has the status of customary
international law.1249
This finding by the ICJ, which is its most comprehensive
statement by the Court as to the legal effect of Article 121,
makes clear that the three paragraphs that make up that
Article are to be considered as a whole. The consequences are
that when
1247Ibid., para 139; see Qatar v. Bahrain (Merits), paras 167-185.

1248 Nicaragua v. Colombia (Merits), para 139.
North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of
53
1249Ibid.
Germany v. The Netherlands), Judgment, ICJ Reports 1969, p. 3.
346 D.R. Rothwell
consideration is given to the maritime entitlements of an island
there will be a need for characterisation of that feature as to
not only whether it meets the criteria for recognition as an
island for the purposes of international law, but additionally
whether it is properly an Article 121(1) island or an Article
121(3) rock. Such a determination will then become critical
with respect to what the Court has termed the ‘maritime
entitlements’ of that feature which not only would extend to
the delineation of maritime claims generated from that island
but also how the island would be factored into any delimitation
of a maritime boundary with other states.
2.6 Maritime Boundary Delimitation
The final distinctive area where Nicaraguan cases before the

ICJ have had an impact upon the law of the sea is with respect
to maritime boundary delimitation. It can initially be observed
that the law of maritime boundary delimitation is very well
developed with Articles 15, 73 and 84 of UNCLOS providing a
legal framework allowing coastal states to seek to delimit their
overlapping boundaries by agreement, or which permit
international courts and tribunals to apply developed legal
principles to bring about their resolution.1250In that respect, it
can be observed that the ICJ commencing with the North Sea
Continental Shelf cases53in 1969 has had a particularly long and
distinguished jurisprudence with respect to maritime boundary
disputes and delimitation. As of 2015,17 of the 161
contentious cases before the ICJ have addressed maritime
boundary delimitation. A constant theme in many of these
cases has been the significance of the equidistance method of
maritime boundary delimitation. Equidistance as a method of
maritime boundary delimitation has its roots in the 1958
Geneva Conventions, State practice, and the jurisprudence of
the Court including in North Sea Continental Shelf. Direct reference is
made to equidistance in Article 15, which indicates that in the
1250See generally Rothwell and Stephens (2016).

absence of agreement between the coastal States, neither
State is to ‘extend its territorial sea beyond the median line
every point of which is equidistant from the nearest points on
the baselines from which the breadth of the territorial sea of
each of the two States is measured.’ Notwithstanding the
weight that has been given to equidistance in State practice
and by the ICJ, the Court nonetheless observed in 2007 in Case
Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea that:
The jurisprudence of the Court sets out the reasons why
the equidistance method is widely used in the practice of
maritime delimitation: it has certain intrinsic value
because of its scientific character and relative ease with
which it can be applied. However, the equidistance
method does not automatically have priority over other
methods of delimitation
53
North Sea Continental Shelf (Federal Republic of Germanyv. Denmark; Federal Republic of
348 D.R. Rothwell
and, in particular circumstances, there may be factors which
make the application of the
equidistance method
inappropriate.1251125212531254125512561257125812591260
In the 2007 Case Concerning Territorial and Maritime Dispute between
Nicaragua contended that
Nicaragua and Honduras in the Caribbean Sea
this was not an instance where the equidistance method was
applicable to the delimitation of the territorial sea with
Honduras.55Accordingly, the ICJ considered a delimitation
methodology to be applied in the context of an Article 15
territorial sea boundary.56First, the Court observed that
consideration should be given to the drawing of a provisional
equidistance line.57Secondly, the Court noted that if this proves
impossible because of certain features on the coastline or
within the area of delimitation, an equidistance line can be
abandoned due to special circumstances.58Third, the Court may
consider alternate methods of delimitation proposed by the
parties or elect to apply its own methods. In this case the ICJ
found that an equidistance line could not be applied in the first
instance because of geographical and geological difficulties
associated with the nature of the coastline and unstable
coastal features, including the identification of basepoints from
which an equidistance line could be drawn.59As an alternate to
equidistance, the Court sought to apply a ‘bisector’ line, 60which
had been promoted in Nicaragua’s submissions. 61Finally, with
respect to methodology and approach to territorial sea
1251Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, ICJ Reports 2007, para 272 (hereinafter ‘Nicaragua v. Honduras
(Judgment)’).
125255Ibid., para 273. For a reviews of this case see Kirk (2008)
and Tanaka (2008).
1253Ibid., paras 262-282.
125457Ibid., para 268.
1256Ibid., paras 273-280.
1257Ibid., para 287 which the court described as ‘an
approximation of the equidistance method’.
1258 Ibid., paras 83-4, 201, 290-1.
1259Ibid., para 292; this would be an especially important factor
in instances of where a river mouth is part of the land
boundary.
1260Qatar v. Bahrain (Merits), p. 40.
delimitation the ICJ observed that it will also need to take into
account relevant coasts which will include reference to the
geographical configuration of the coastline and the geo-
morphological features of the area adjacent to the endpoint of
a land boundary.62
UNCLOS emphasises the capacity of the states to determine
their territorial sea boundaries by agreement, and that in the
absence of agreement, claims of historic title, or special
circumstances, a median line that is equidistant from the
nearest points on the baselines is to be employed. Through
decisions such as Maritime Delimitation and Territorial Questions between
Qatar and Bahrain63and Case Concerning Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea the ICJ has developed a
clear delimitation methodology in interpreting Article 15. Whilst
concerns exist over the potential distorting effects
53
North Sea Continental Shelf (Federal Republic of Germanyv. Denmark; Federal Republic of
of an equidistance line, this is minimised within the
comparatively small areas of the territorial sea under
delimitation.1261As to what may constitute ‘special circum-
stances’ nothing in Article 15 suggests that certain features are
excluded from consideration or that there is ‘a finite list of
special circumstances’.1262In the Case Concerning Territorial and Maritime
Dispute between Nicaragua and Honduras in the Caribbean Sea the ICJ was
prepared to find that the unstable nature of the adjacent
coast, which included unstable islands at the mouth of the
River Coco, created geomorphological problems which were a
‘special circumstance’ that impacted upon the delimitation of
the territorial sea.1263As a response to the dynamic coastal
geomorphology and the uncertain nature of the land boundary
terminus, the Court elected in this instance to set the starting
point of the territorial sea boundary at a distance three
nautical miles out to sea from a point that had previously been
identified by the 1962 Mixed Commission.1264
A particular issue which arises in maritime boundary
delimitation is the potential distorting effects that islands have
on maritime boundaries, especially if those islands are granted
their full entitlement to extensive maritime zones such as a
continental shelf or EEZ and a number of judicial techniques
have been applied to address this problem.1265There are also
examples in State practice where small, sparsely inhabited
islands which are located very close to the mainland of another
State have been given minimal effect in negotiated maritime
boundaries settled by way of treaty.1266This significance of
1261Nicaragua v. Honduras (Judgment), para 269.
1262Delimitation in the Maritime Boundary between Guyana and Suriname, Award, 17
September 2007, ILR, Vol. 139, para 302 (hereinafter
‘Guyana/Suriname’).
1263Nicaragua v. Honduras (Judgment), para 280. For analysis see
Lathrop (2008).
126467Guyana/Suriname, para 311.
126568See, e.g., Delimitation of the Continental Shelf between France and the United Kingdom,
1266Decision, 30 June 1977, RIAA, Vol. XVIII, paras 245-251
(hereinafter ‘Anglo-French Continental Shelf (1977 Award)’) (where the
71
See, e.g.,
Arbitral Tribunal
Maritimeelected
Delimitationto give
in the Black the Scillyv.Isles
Sea (Romania in Merits,
Ukraine), the southern
Judgment, ICJ
portion paras
Reports 2009,of 187-188.
the English Channel ‘half-effect’).
ensuring that small islands do not have a distorting impact
upon a maritime boundary is further reinforced in UNCLOS
which makes clear that the delimitation of these maritime
zones is to achieve an ‘equitable outcome’,1267as reflected in
recent ICJ decisions.1268
In the South-Western Caribbean Sea case the ICJ was confronted by
the existence of multiple small offshore maritime features,
which as noted above ranged
126769See, e.g., Treaty between Australia and the Independent State of Papua New Guinea concerning
Sovereignty and Maritime Boundaries in an area between the two Countries, including the area
1268known as the Torres Strait, and Related Matters (Australia-Papua New
Guinea) (adopted 18 December 1978, entered70into force 15
February 1985) [1985] Australian Treaty Series No. 4. UNCLOS, Arts.
74(1), 83(1).
352 D.R. Rothwell
from islands as legitimately recognised under Article 121(1) to
low-tide elevations.1269The existence of these multiple features
created particular challenges for the delimitation of the
maritime boundary between Nicaragua and Colombia,
especially as the Colombian islands were relatively small as
against the coastal front of Nicaragua facing the Caribbean
Sea. In approaching this task the Court sought to apply the
delimitation methodology that it had endorsed in the 2009 Black
Sea case,
1270
which involves the establishment first of a
provisional delimitation line, consideration of whether there are
relevant circumstances which justify adjustment of that line so
as to achieve an equitable result, and finally the application of
a disproportionality test.1271Importantly in the context of the
relevant maritime area, the Court emphasised that in applying
this methodology the provisional delimitation line would take
into account the territories of the Parties, including the island
territories, using methods that were ‘geometrically objective
and appropriate for the geography of the area.’ 1272In this
regard the Court noted that its approach should not be
‘applied in a mechanical fashion’ and that every case may not
be appropriate to commence with a provisional
equidistance/median line.1273
The construction of the provisional median line immediately
raised the issue of the weight to be accorded to the offshore
Nicaraguan islands and the Colombian islands in the relevant
maritime area. The Court included the offshore Nicaraguan
islands in the construction of the base points from which
Nicaragua’s entitlements to an EEZ and continental shelf were
to be determined.1274The Colombian coast was confined to the
islands within the area of overlapping entitlements, and the
entire coastlines of those islands was considered, though the
1269For a general discussion of this case see Khan and Rains

(2013).
1270Nicaragua v. Colombia (Merits), paras 115-116.
1271 Ibid, paras 190-193.
14
1272 Ibid., para 191.

15

1274 Ibid., paras 145, 201.
11
smaller cays were not.1275The total lengths of the relevant
coasts were 531 km (Nicaragua) and 65 km (Colombia) with a
ratio of 1:8.2 in favour of Nicaragua.1276The Court was,
however, more selective when it came to determination as to
the impact of the Colombian islands upon the provisional
median line. It was determined that Quitasueno would not
contribute to the provisional median line on the grounds that
‘[w]hen placing base points on very small maritime features
would distort the relevant geography, it is appropriate to
disregard them in the construction of a provisional median
line.’1277Similar considerations were applied to Serrana and Low
Cay, so that the Colombian base points were limited to four
islands and cays in the region.1278
Following construction of the provisional median line, the
Court then proceeded to take into account relevant
circumstances. In this respect consideration had been given to
whether, if the Colombian islands were granted their full
entitlements to an EEZ and continental shelf, Nicaragua’s EEZ
and continental shelf rights as generated to the east offshore
its mainland coast and those of its islands would be ‘cutoff’ by
as much as three quarters of the area into which the coast
projects. Noting that this ‘cut-off’ effect would be created by a
few small islands which are many nautical miles apart, the ICJ
concluded that the islands should not be treated as though
they were a continuous mainland coast stretching for over 100
nautical miles and accordingly determined that this was a
factor for consideration in determining whether a provisional
boundary line should be adjusted to produce an equitable
result,1279while also observing that Colombia’s entitlements
should also be maintained and that likewise there was no
consequential cut-off applied in the case of the Colombian
islands.1280

1278Ibid., paras 202-203.
354 D.R. Rothwell
Taking all of these factors into account the ICJ then came to
a deliberation as to the course of the maritime boundary. Here
Nicaragua had argued that each of the Colombian islands
should be subject to an enclave, however the Court observed
that the use of this technique in the Anglo-French Continental Shelf
case had arisen in the context of delimitation between two
mainland coasts where the Channel Islands were very closely
located within the vicinity of the French coast.1281The Court
then proceeded to draw a line that connected up the western
limits of the maritime entitlements of the principal Colombian
islands, from which straight lines where then drawn so as to
the connect the EEZ and continental shelves of these islands
east into the Caribbean Sea, thereby ensuring respect for the
maritime entitlements of these islands.1282With respect to the
other two Colombian maritime features that were to the north
of this line—Quitasueno and Serrana—the Court concluded
that both were entitled to only generate a 12 nautical mile
territorial sea with the effect that both were enclaved within an
area of Nicaraguan EEZ and continental shelf.1283In the case of
Quitasueno, as noted above, the Court had concluded that
QS32 was a rock from which only a 12 nautical mile territorial
sea could be generated, though the territorial sea was also
measured from adjacent low-tide elevations that fell within the
12 nautical miles of QS32.1284With respect to Serrana, the
Court had already concluded that it was unnecessary to
determine its status for the purpose of Article 121 of
UNCLOS,1285and accordingly the determinative factor for the
purposes of boundary delimitation was its small size and
remoteness which meant that to achieve an equitable result it
was necessary to limit the island to only a 12 nautical mile
territorial sea.1286
1281Ibid., para 231; see Anglo-French Continental Shelf (1977 Award),

paras 245-251.
128481 Ibid.
As the chapters in this volume have highlighted, Nicaragua has

been an active litigant before the ICJ. The principal Nicaraguan
cases reviewed in this chapter have arisen following the
commencement of proceedings by Nicaragua, or in one
instance following Nicaragua’s intervention when its interests
were activated. Notwithstanding Nicaragua’s proactive
approach towards litigating aspects of law of the sea dispute
before the ICJ, its submissions have not always been accepted
by the Court. Nonetheless, even when Nicaragua has not
succeeded in certain aspects of its legal argument, the
Nicaraguan cases have made particular contributions to the
law of the sea. Three can be readily identified. The first is that
the court has considered and commented on some of the
fundamental principles of the law of the sea such as coastal
state sovereignty over the territorial sea,1287the rights of
coastal states within internal waters,1288access to ports,1289and
the freedom of navigation including the right of innocent
passage.1290
The second is that the court has considered, applied and
developed distinctive principles that have precedential value
for the future. This is particularly the case with respect to the
Court’s consideration of maritime boundary delimitation in two
instances: the territorial sea, and the EEZ/continental shelf. In
the Case Concerning Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea the Court applied the Article 15 of
UNCLOS delimitation methodology and made some general
observations as to its interpretation. There are few other
instances where international courts and tribunals have been
called upon to consider territorial sea boundaries and so this
decision has significance in that respect. On the other hand,
whilst there have been numerous maritime boundary cases
decided by international courts and tribunals with respect to
1287Nicaragua v. United States (Merits), para 212.

1288Ibid.
1289Ibid., para 214; El Salvador/Honduras (Merits), para 412.
356 D.R. Rothwell
the EEZ/continental shelf, there have been relatively few which
have required those courts to give such precise attention to
the status of maritime features, the entitlement of those
features to generate maritime zones consistent with UNCLOS,
and the impact of those features upon the decided maritime
boundary. The South-Western Caribbean Sea case is an important case
in this regard because it not only considers these issues in
their totality, but also does so within the context of the ICJs
preferred delimitation methodology developed in the Black Sea
case. Here the ICJ demonstrated that it was prepared to
undertake a forensic analysis in order to determine whether
certain maritime features were Article 121(1) islands, Article
121(3) rocks, or low-tide elevations. In doing so the Court
confirmed that it would take a holistic approach to its
interpretation of Article 121 with the Court well aware of the
implications that arise from the characterisation of different
maritime features. The Court also highlighted that it would
consider a range of issues as they relate to islands in its
assessment of what are the relevant circumstances following
the drawing of a provisional equidistance or median line. To
that end, clearly the size of the island and its potential
distorting effect upon a maritime boundary are factors to be
considered.
The third dimension of these cases is that they have
provided particular decisions with respect to the unique coastal
geography and maritime domain of Nicaragua. This is
particularly the case with respect to the characterisation of the
Gulf of Fonseca as an historic pluri-State bay, that the waters
of the Gulf are historic waters over which El Salvador,
Honduras, and Nicaragua share sovereignty, the delimitation
of the territorial sea maritime boundary between Honduras
and Nicaragua in the Caribbean Sea, and the delimitation of
the EEZ/continental shelf between Colombia and Nicaragua in
the Caribbean Sea. In this latter respect, the SouthWestern
Caribbean Sea case is of particular significance because of the
characterisation by the Court of the multiple maritime features
located within that part of the Caribbean Sea which provide a
definitive ruling as to the status of those features for the
ongoing relationship between Colombia and Nicaragua in the
Caribbean.
The significance of the Nicaragua cases for the law of the
sea is further highlighted by their impact upon subsequent
jurisprudence. This is highlighted by the weight accorded to
the South-Western Caribbean Sea case by the Annex VII Arbitral
Tribunal in the 2016 South China Sea case.1291In a decision that will
have a longstanding impact upon the law of the sea due to the
clarity of the Award with respect to the regime of islands and
its implications more generally with respect to the law of the
sea in the South China Sea, the Tribunal relied upon the South-
Western Caribbean Sea case in reaffirming that low tide elevations
cannot be subject to appropriation if they are located beyond
the territorial sea.1292The analysis of the Court as to the status
of Quitasueno was relied upon by the Philippines in its
submissions,1293and endorsed by the Tribunal when
characterising a rock for the purposes of Article 121(3) as a
feature that is naturally formed and above water at high tide,
irrespective of its geological composition or size.1294The South
China Sea Annex VII Arbitral Tribunal likewise relied upon the
Court’s view in SouthWestern Caribbean Sea that international law
does not prescribe a minimum size for a feature to be
considered an island.1295A close analysis of the South China Sea
case and the argument made by the Philippines before the
Tribunal highlights the importance of the Court’s deliberations
in South-Western Caribbean Sea and its role in clarifying critical
elements of the Article 121 regime of islands.
In sum, the Nicaragua cases before the ICJ as they relate to
the law of the sea represent a unique set of decisions by the
Court. Some have common themes, while others address
distinctive issues. The legacy of these decisions is not only
greater
certainty with respect to law of the sea matters for Nicaragua
1291The South China Sea Arbitration (Philippines v. China), PCA Case No. 2013-
19, Award on Merits, 12 July 2016.
1294 Ibid., para 480.
91

358 D.R. Rothwell
and its neighbours, but also for the general law of the sea with
respect to the interpretation of UNCLOS and relevant
customary international law. Given the general application of
some of the principles which the ICJ articulated in the
Nicaraguan cases, the decisions of the Court will have ongoing
significance for law of the sea disputes elsewhere and may
prove to be pivotal for the future resolution of law of the sea
disputes in other seas and oceans, as has already occurred
with respect to the South China Sea. Therefore, the
Nicaraguan law of the sea cases not only have sought to
resolve the particular disputes involving Nicaragua but also
have value for their interpretation of the law in critical areas of
the law of the sea. This will ultimately be Nicaragua’s major
legacy for the law of the sea into the future.
References
Colombos CJ (1967) The international law of the sea, 6th edn.
Longmans, London Jessup PC (1970) The law of territorial
waters and maritime jurisdiction. Jennings, New York. Kraus
Reprint, 1970
Khan MI, Rains DJ (2013) Doughnut hole in the Caribbean
Sea: the maritime boundary between Nicaragua and Colombia
according to the international court of justice. Houst JIL
35:589 Kirk EA (2008) Case concerning territorial and maritime
dispute between Nicaragua and Honduras in the Caribbean
Sea. ICLQ 57:701
Lathrop CG (2008) Territorial and maritime dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v
Honduras). AJIL 102:113 Lathrop CG (2015) Baselines. In:
Rothwell DR, Oude Elferink AG, Scott KN, Stephens T (eds)
The Oxford handbook of the law of the sea. OUP, Oxford
O’Connell DP (1982) The international law of the sea, vol I.
OUP, Oxford Rossi CR (2015) Jura novit curia? Condominium in
the Gulf of Fonseca and the “local illusion” of a pluri-state bay.
Houst JIL 37:793
Rothwell DR, Stephens T (2016) The international law of the
sea, 2nd edn. Hart, Oxford Tanaka Y (2008) Case concerning
territorial and maritime dispute between Nicaragua and
Honduras in the Caribbean Sea. Int J Mar Coast Law 23:327
Donald R. Rothwell, Professor of International Law, ANU College of

Law, ANU.
Environmental Law and Freshwater
Ecosystems
Stephen C. McCaffrey
Abstract This chapter focuses on the contributions of the

International Court of Justice to environmental law in two
cases involving Nicaragua, which have been many and
significant. The judgment in the two cases considered, the
Certain Activities and Construction of a Road cases, contains a wealth of
material bearing upon the law of wetlands of international
importance, governed by the Ramsar Convention,
transboundary pollution, and the right of a state to maintain
the flow and navigability of a watercourse within its borders.
These cases also illustrate the challenges posed by cases
involving substantial evidence of a scientific and technical
nature, as well as those that deal with harm that builds
incrementally. Finally, the Court’s judgment in the two cases
shows that the Court is fully prepared to hold States to their
procedural obligations in the field of the environment but that
it will require clear and convincing evidence of harm before
finding a breach of the obligation to prevent transboundary
environmental harm.
Contents
1 Introduction..................................................................................................................................... 348
2 The Case Concerning Certain Activities Carried Out by Nicaragua in the Border Area
and the Case Concerning Construction of a Road in Costa Rica Along the San Juan River:
Introduction............................................................................................................................. 350
2.1 The Certain Activities Case................................................................................................. 351
2.2 The Road Case .................................................................................................................... 353
3 The Judgment and Environmental Law.......................................................................................... 354
3.1 Procedural Obligations......................................................................................................... 354
3.2 Substantive Obligations....................................................................................................... 362
4 Conclusion...................................................................................................................................... 367
Stephen McCaffrey was part of the legal team representing the

Republic of Nicaragua in the following cases: Dispute regarding
Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa 3
Rica along the San Juan River (Nicaragua v. Costa Rica). The views and opinions5
9
360 S.C. McCaffrey
expressed in this Chapter are those of the author and do not
necessarily reflect the views and opinions of the Republic of
Nicaragua.
S.C. McCaffrey (*)
McGeorge School of Law, University of the Pacific, Sacramento,
CA, USA © Springer International Publishing AG 2018
9_15
1 Introduction
The international community is increasingly recognizing the

importance of protecting and preserving freshwater
ecosystems. Nearly a quarter-century ago, the medium-term
plan of the United Nations for the period 1992-1997 was able
to observe as follows:
Interactions between freshwater ecosystems on the one
hand and human activities on the other are becoming
more complex and incompatible as socio-economic
development proceeds. Water basin development
activities can have negative impacts too, leading to
unsustainable development, particularly where these
water resources are shared by two or more States.1296
The situation has not improved since these words were
written.
In its 1997 judgment in the Gabcikovo-Nagymaros Project case, the
International Court of Justice quoted from the 1980
commentary of the International Law Commission on its
articles on State Responsibility as follows: ‘It is primarily in the
last two decades that safeguarding the ecological balance has
come to be considered an “essential interest” of all
States.’1297The Court in that case emphasized the importance of
1296'Medium-term plan for the period 1992-1997, as revised

by the General Assembly at its forty- seventh session, UN Doc.
A/47/Rev.1, Vol. I, major programme IV, International
economic cooperation for development programme 16
(Environment), p. 221, para 16.25, quoted in the commentary
of the International Law Commission to Art. 20 of its draft
articles on The Law of the Non-Navigational Uses of
International Watercourses, ‘Protection and preservation of
ecosystems’, YbILC 1994, Vol. II, Part Two, p. 119.
1297Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p. 41, para 53,
quoting from YbILC 1980, Vol. II, Part Two, p. 39, para 14.
Environmental Law and Freshwater Ecosystems 361
a healthy environment to humanity in the following terms:
The Court recalls that it has recently had occasion to
stress, in the following terms, the great significance that
it attaches to respect for the environment, not only for
States but also for the whole of mankind:
“the environment is not an abstraction but represents
the living space, the quality of life and the very health of
human beings, including generations unborn. The
existence of the general obligation of States to ensure
that activities within their jurisdiction and control respect
the environment of other States or of areas beyond
national control is now part of the corpus of international
law relating to the environment” (Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, pp. 241-242, para.
29).1298
And turning specifically to the Danube, the river involved in
that case, the Court observed that: ‘The cumulative effects on
the river and on the environment of various human activities
over the years have not all been favourable, particularly for the
water regime.’1299
All of these statements apply to the San Juan River, its
ecosystems and its environment. As a watercourse that, for
part of its length, flows along the boundary between Nicaragua
and Costa Rica, the San Juan is subject to many of the
problems that beset international watercourses, i.e., those
watercourses, ‘parts of which are situated in different States;
[.. .].’1300The San Juan does not qualify as an international
watercourse under this definition because by virtue of the lex
specialis governing the river,
1301
the portion of boundary in
question between Costa Rica and Nicaragua is located not in
the river itself but along its right, or Costa Rican, bank. As a
consequence, no part of the main stem of the river is ‘situated
in different States.’ Thus Nicaragua possesses what the Court
has called ‘full and exclusive sovereignty (“exclusivamente el dominio y
1298Ibid.
1299Ibid.,
p. 18, para 17.
1300United Nations Convention on the Law of the Non-
Navigational Uses of International Watercourses, art. 2(b), UN
Doc. A/RES/51/869, 21 May 1997, 36 ILM 700 (1997).
1301The principal legal instruments governing the San Juan
River and constituting its lex specialis are the 1858 Treaty of Limits
between Costa Rica and Nicaragua and the 1888 arbitral award
of President Grover Cleveland concerning the Treaty, its
interpretation and application.
362 S.C. McCaffrey
sumo imperio”) over the whole of the San Juan, from its source in
the lake to its mouth at the sea,’1302as confirmed by Article VI
of the 1858 Treaty of Limits between the two countries. 1303But
as will be seen, this does not mean that activities in Costa Rica
do not affect the San Juan, its environment and ecosystems, or
the quality of its waters. It is well known, and indeed is
obvious on a moment’s reflection, that activities on land can,
and often do, affect adjacent rivers and lakes and associated
groundwater. As the Court stated in its Judgment in the Certain
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)
case (hereinafter ‘Certain Activities’):
[Costa Rica’s] tributaries [that flow into the San Juan River]
(particularly the San Carlos
and Sarapiqui Rivers) are major sources of sediment for the
San Juan.1304
Similar phenomena were involved in the Construction of a Road in
Costa Rica along the San Juan River (Nicaragua v. Costa Rica)
case (hereinafter ‘Construction of a Road' or ‘Road'), discussed below.
13021 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, ICJ
Reports 2009, p. 213, p. 234, para 37.
1303Treaty of Limits (Tratado de Limites) between Nicaragua and
Costa Rica, San Jose, 15 April 1858, English translation in 48
BFSP 1049, known as the ‘Jerez-Canas Treaty’ after the officials
that concluded it.
1304Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua);
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment,
ICJ Reports 2015, p. 713, para 125, p. 68, para. 195 (hereinafter
‘Certain Activities; Construction of a Road (Judgment)’). Nicaragua in its
Counter Memorial in the Navigational and Related Rights case stated that:
‘The sediment load that the San Juan River receives from
rivers originating in Costa Rica is very heavy. [...] [para 1.1.9]
The result [...] has been that the bay of San Juan de
Nicaragua has undergone sedimentation and obstruction over
time, in such a way that now the bay communicates with the
sea through a narrow outlet. [para 1.1.10] These affluents of
the San Juan originating in Costa Rica have also carried
substantial amounts of pollutants that have damaged the San
Juan de Nicaragua River.’ See also Dispute concerning Navigational and Related
Rights (Costa Rica v. Nicaragua), Counter-Memorial of Nicaragua, Vol. I,
p. 11, paras 1.1.8-1.1.10, available at
The International Court of Justice has recently heard two
cases in which Nicaragua has been a party that concern
environmental law and freshwater ecosystems: the Certain
Activities case and the Construction of a Road case.
1305
This chapter will consider the contributions of the Court's

judgment in these two cases to international environmental
law, in particular as it relates to freshwater ecosystems.
2 The Case Concerning Certain Activities Carried Out by

Nicaragua in the Border Area and the Case Concerning
Construction of a Road in Costa Rica Along the San Juan
River: Introduction
The International Court issued its judgment in these joined

cases between Costa Rica and Nicaragua1306on 16 December
2015. There has therefore been little opportunity for other
courts and tribunals, or States in their practice, to rely on the
Court's judgment, at least as far as available evidence of such
case law or practice is concerned. This chapter will therefore
take note of the significant pronouncements on environmental
law the Court made in its judgment, which are likely to be
influential in future cases and in State practice.
This section will offer brief introductions of the two cases, to
provide context. The following section will then note the
aspects of the judgment that are of particular significance for
environmental law.1307
1305The Certain Activities and Road cases were joined by the Court at
the request of Nicaragua, over the objection of Costa Rica,
because they involved common elements of law and fact (Certain
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Joinder of
Proceedings, Order of 17 April 2013, ICJ Reports 2013, p. 166. See contribution by
Sobenes E.
1306 Supra note 9. See also contribution by Sobenes E.
1307The chapter's focus on environmental law means, of
course, that many details not relevant to this field will be
omitted. For example, Costa Rica twice (on filing its Application
and on 24 September 2013) requested that the Court indicate
provisional measures in the Certain Activities case, and Nicaragua in
the Road case requested the Court on 19 December 2012 to
‘decide proprio motu whether the circumstances of the case
364 S.C. McCaffrey
2.1 The Certain Activities Case
This case was brought by Costa Rica against Nicaragua by

Application filed on 18 November 2010. It was occasioned by
Nicaragua’s having entered what Costa Rica alleged to be its
territory, in the area of the delta of the San Juan River not far
from its mouth, to clean a small channel, or cano, that
Nicaragua believed marked the border between the two
countries. The cano leads from the right bank of the San Juan
River into Harbor Head Lagoon, a body of water that both
parties agree is Nicaraguan. The lagoon is located in an area
referred to by Nicaragua as Harbor Head and by Costa Rica as
Isla Portillos. This area is located within a larger one referred
to generally as Isla Calero that is situated between the
Colorado branch of the San Juan River—the major distributary
of the San Juan which branches off from its right bank at a
point known as Delta Colorado and flows through Costa Rica to
the sea—and the Lower San Juan.1308In 2013 Nicaragua
cleaned two additional canos, also on the right bank of the river
and closer to its mouth, leading directly from the San Juan to
the sea.
Costa Rica charged that Nicaragua had ‘invaded and
occupied Costa Rican territory, and that it dug a channel
thereon; it further reproache[d] Nicaragua with conducting
require[d] the indication of provisional measures.' (Certain Activities;
Construction of a Road (Judgment), supra n. 9, para 17). On 8 March
2011 the Court indicated provisional measures addressed to
both parties in the Certain Activities case and directed that they
inform it about compliance with those measures (Certain Activities;
Construction of a Road (Judgment), supra n. 9, para. 7). Nicaragua later,
on 11 October 2013, made a request for the indication of
provisional measures in the Road case (ibid., para 25. The Court
on 22 November 2013 ordered new provisional measures in
the Certain Activities case addressed to both parties (ibid., para 26) but
decided on 13 December 2013 that provisional measures were
not then required in the Road case (ibid., para 27). For more see
contribution by Hugh Thirlway.
130813The geographical context of the Certain Activities case is
illustrated by the Court’s Sketch-map No. 1, following para 58
of the Judgment, supra n. 9.
works (notably dredging of the San Juan River) in violation of
its international obligations.’1309Nicaragua’s position was that
according to arbitral awards demarcating the boundary issued
at the turn of the twentieth century,1310the boundary followed
the right bank of the cano, which Nicaragua believed was the
Costa Rican bank, and therefore Nicaragua’s activities of which
Costa Rica complained were conducted in Nicaraguan territory.
In its Order of 8 March 2011 on provisional measures the Court
defined the ‘disputed territory’ as follows:
the northern part of Isla Portillos, that is to say, the area
of wetland of some 3 square kilometres between the right
bank of the disputed cano, the right bank of the San Juan
River up to its mouth at the Caribbean Sea and the
Harbor Head Lagoon (ICJ Reports 2011 (I), p. 19, para. 55).
As is often the case in deltaic areas of rivers, much of the
area involved in the case, as well as its surroundings, is
wetland. Costa Rica designated a large area on its side of the
river known as the Humedal Caribe Noreste (Northeast
Caribbean Wetland) as a wetland of international importance
under the Ramsar Wetlands

131015These were the awards issued by General Edward Porter
Alexander of the United States, an engineer who had been
appointed by the President of the United States pursuant to
the 1896 Pacheco-Matus convention on border demarcation
between the two countries. See ibid., para 61. They are found in
Vol. XXVIII of RIAA.
366 S.C. McCaffrey
Convention1311in 1996. And in 2001 Nicaragua designated the
area immediately adjacent to it, including the San Juan River
and a strip of land two kilometres in width along the river’s left
bank, as a wetland of international importance under the
Ramsar Convention. This area is known as the Refugio de Vida
Silvestre Río San Juan (San Juan River Wildlife Refuge). The
Ramsar Convention, with 169 parties at this writing, was relied
upon by both Costa Rica and Nicaragua in the Certain Activities
and Road cases. The parties also invoked other multilateral
environmental treaties. In its judgment, the Court noted that
the Registrar notified States parties to the Ramsar Convention,
the Convention on Biological Diversity, and the 1992
Convention for the Conservation of the Biodiversity and
Protection of Priority Wildlife Areas in Central America as
provided by Article 63, paragraph 1, of the ICJ’s
Statute.1312According to that provision, States that are parties
to a convention the construction of which by the Court is in
question are to be notified. Under paragraph 2 of Article 63,
the notified States have the right to intervene in the
proceedings but would be bound by the Court’s construction of
the treaty. No States availed themselves of this opportunity.
But a large number of States—most of the international
community, in view of the fact that there are 196 parties to
the Convention on Biological Diversity1313—were notified that
important multilateral treaties to which they are parties could
be interpreted and applied by the Court.
Costa Rica also contended that Nicaragua had breached the
obligation under general international law to prepare an
environmental impact assessment (EIA) regarding its program
of dredging in the San Juan River. At the outset of its
discussion of this issue the Court observed that: ‘The Parties
broadly agree on the existence in general international law of
1311Convention on Wetlands of International Importance
especially as Waterfowl Habitat, Ramsar, Iran, 2 February
1971, 996 UNTS 246 (hereinafter ‘Ramsar Convention’).
131211 Certain Activities; Construction of a Road (Judgment), supra n. 9, para 12.
1313See the UN website on status of Multilateral Treaties
Deposited with the Secretary-General,
https://treaties.un.org/pages/ViewDetails.aspx?
Certain Activities; Construction of a Road (Judgment), supra n. 9,
19
src=TREATY&mtdsg_no=XXVII-8&
para 101.
an obligation to conduct an environmental impact assessment
concerning activities carried out within a State’s jurisdiction
that risk causing significant harm to other States, particularly
in areas or regions of shared environmental conditions.’ 1314
While Nicaragua had prepared an ‘Environmental Impact
Study’ in 2006 to determine whether its dredging program
posed a risk of harm to Costa Rica, finding that it did not,
Costa Rica contended that Nicaragua had not complied with
the obligation to prepare an EIA, and that it must prepare an
EIA prior to any further dredging. Costa Rica also relied on ‘a
document entitled “Report: Ramsar Advisory Mission No. 72”,
prepared in April 2011,’ which, it said, ‘confirms the existence
of a risk of transboundary harm, shows that Nicaragua’s study
did not contain an assessment of that risk, and concludes that
such an assessment should have been
1314chapter=27&lang=en(last visited January 30, 2016).

368 S.C. McCaffrey
undertaken prior to the implementation of the dredging
programme.’1315Nicaragua responded that its 2006
Environmental Impact Study had in fact considered the
potential transboundary impact of its dredging program,
including whether it would have effects on the environment of
Costa Rica and whether it might result in a reduction in the
flow of the Colorado River. With regard to the Ramsar Advisory
Mission Report, Nicaragua pointed out, inter alia, that it was only
a draft, on which Nicaragua provided timely comments, but
which had not been finalized. The Court found that since
Nicaragua’s dredging programme did not give rise to a risk of
significant transboundary harm, Nicaragua was not required to
conduct an EIA.
In the portion of the operative clause of its judgment
concerning the Certain Activities case, the Court issued the
following findings that are of relevance to the present chapter:
that Costa Rica has sovereignty over the ‘disputed territory;’
that ‘Nicaragua has the obligation to compensate Costa Rica
for material damages caused by Nicaragua’s unlawful activities
on Costa Rican territory’; and that if the parties could not
agree on the compensation due to Costa Rica within 12
months from the date of the judgment the Court would settle
the matter at the request of either of the parties.
2.2 The Road Case
This case was brought by Nicaragua against Costa Rica by

Application filed on 22 December 2011. In December 2010,
Costa Rica had begun constructing a road, ‘Route 1856 Juan
Rafael Mora Porras,’ along the right bank of the San Juan. The
Court describes the road as follows: ‘The road has a planned
length of 159.7 km, extending from Los Chiles in the west to a
point just beyond “Delta Colorado” in the east. For
108.2 km, it follows the course of the San Juan River
[.. .].’1316Costa Rica later, on 21 February 2011, ‘adopted an
1315 20
'Ibid., para 102.
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 83,
1316Ibid., para 64. The Court’s Sketch-Map No. 2 showing the
25
route
para 204of the road is found
(hereinafter following
‘Pulp Mills para 64 of the judgment.
(Judgment)’).
Executive Decree declaring a state of emergency in the border
area,’ and argued that the declaration ‘exempted it from the
obligation to conduct an environmental impact assessment
before constructing the road.’1317In its application, Nicaragua
asserted that the road’s siting and manner of construction,
which was not being carried out according to a plan, led to
violations of Nicaraguan sovereignty and major environmental
damage on its territory. Nicaragua alleged the breach by Costa
Rica of numerous substantive and procedural obligations in
connection with the construction of the road. The Court found
that Costa Rica had violated its obligation under general
international law to conduct an environmental impact assess-
ment concerning the construction of the road. It rejected
Nicaragua’s other submissions, in particular Nicaragua’s
allegations that Costa Rica had violated Nicaragua’s
substantive rights in constructing the road.1318
131722Ibid.
1318 See the operative clause of the Judgment,
23
ibid., paras 6
and 7.
370 S.C. McCaffrey
3 The Judgment and Environmental Law
While the Court’s judgment covered both cases, as noted earlier and in Chapter 17
of this book, in it the Court dealt with each case separately. Rather than following
that schema, this section will discuss thematically the issues of environmental law
dealt with by the Court in its judgment. For both cases the Court divided its
discussion of alleged breaches of environmental obligations into two parts,
procedural obligations, and substantive obligations, a division that will be followed
here. It will become apparent in the following discussion that one multilateral
treaty and one obligation under general international law were dominant in the
judgment: the Ramsar Wetlands Convention and the obligation to conduct an
environmental impact assessment.
3.1 Procedural Obligations
Both parties invoked alleged procedural breaches by the other of international

environmental law. The chief procedural obligations involved related to environ-
mental impact assessment (EIA) and notification and consultation. These will be
considered in turn.
3.1.1 The Customary Obligation of Environmental Impact Assessment
The Court elaborated on how the environmental impact assessment obligation is

to be implemented in the following way. It first recalled the obligation of
prevention of transboundary harm—a substantive obligation—by quoting from its
judgment in the Pulp Mills case as follows:
the principle of prevention, as a customary rule, has its origins in the due
diligence that is required of a State in its territory. It is “every State’s
obligation not to allow knowingly its territory to be used for acts contrary to
the rights of other States” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, ICJReports
1949, p. 22). A State is thus obliged to use all the means at its disposal in
order to avoid activities which take place in its territory, or in any area under
its jurisdiction, causing significant damage 1319 to the environment of another
State. (ICJ Reports 2010 (I), pp. 55-56, para. 101.)
The Court then quoted a passage from its judgment in Pulp Mills in which it found
that the obligation to prepare an environmental impact assessment had become
part of general international law.25However, it added a gloss to that passage,

25
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 83,
para 204 (hereinafter ‘Pulp Mills (Judgment)’).
stating: ‘Although the Court’s statement in the Pulp Mills case refers to
industrial activities, the underlying principle applies
generally to proposed activities which may have a significant
adverse impact in a transboundary context.’1320
3.1.2 When to Conduct an EIA: Lessons Learnt from the Certain

Activities and Road Cases
The Court went on to clarify what would be required for a

State ‘to fulfil its obligation to exercise due diligence in
preventing significant transboundary environmental
harm,’1321namely, that it: ‘must, before embarking on an
activity having the potential adversely to affect the
environment of another State, ascertain if there is a risk of
significant transboundary harm, which would trigger the
requirement to carry out an environmental impact
assessment.’1322Thus the Court lays out a two-step process that
a State proposing a new activity must follow: First, it must
ascertain whether the proposed activity entails a risk of
significant transboundary harm. This first step is sometimes
referred to as ‘screening.’ If it is found that the proposed
activity entails such a risk, this would trigger the obligation to
prepare an EIA, the second step in the process.
The Court then pointed out that if the EIA confirms that the
planned activity does indeed pose a risk of significant
transboundary harm, new procedural obligations may arise. In
such a case, according to the Court, ‘the State planning to
undertake the activity is required, in conformity with its due
diligence obligation, to notify and consult in good faith with the
potentially affected State, where that is necessary to
determine the appropriate measures to prevent or mitigate
that risk. ’1323Since the risk involved would be of significant
132121 Ibid., para 104.
1322Ibid. Judge Owada stated in his Separate Opinion that ‘[i]n
the process of carrying out the
1323obligation to act in due diligence under international
environmental law, the requirement of conducting an
Certain Activities; Construction of a Road (Judgment), supra n. 9,
29
para 104.
transboundary harm, it would often be the case that
determination of appropriate measures of prevention or
mitigation would require
environmental impact assessment becomes a key element for

determining whether certain activities may cause significant
transboundary harm.’ See para 14, Judge Owada Separate
Opinion. Judge ad hoc Dugard also stated that ‘[t]he obligation of
due diligence flows from the principle of prevention. This is
emphasized by the International Law Commission’s Commentary on
Article 3 of its Draft Articles on the Prevention of
Transboundary Harm from Hazardous Activities which declares
“[t]he obligation of the State of origin to take preventive or
minimization measures is one of due diligence” (Yearbook of the
International Law Commission (YILC), 2001, Vol. II, Part Two, p. 154, para.
7; see too, p. 155, para. 17). The duty of due diligence
therefore is the standard of conduct required to implement the
principle of prevention.’ He continued by stating: ‘That due
diligence and the obligation to conduct an environmental
impact assessment are legal tools employed to ensure the
prevention of significant transboundary harm is confirmed by
the Court in its present Judgment when it states that “a State’s
obligation to exercise due diligence in preventing significant
transboundary harm” requires it to conduct a screening
exercise to determine whether it is required to do an
environmental impact assessment prior to undertaking an
activity.’ See paras 7 and 8 of Judge Dugard’s Separate
Opinion.
374 S.C. McCaffrey
knowledge of matters outside the territory of the State in which
the planned activity would be situated, knowledge that could
be obtained through notification of and consultation with the
potentially affected State. This would not always be the case,
however, such as when the proposing State decided not to
proceed with the planned activity or altered the plans in such a
way as to remove the risk of transboundary harm. Although the
Court did not say this, it is probable that there is in any event
an obligation of prior notification in respect of planned activities
relating to shared natural resources that pose of risk of
transboundary harm.1324
Having laid down the applicable general principles, the Court
proceeded to apply them to the case. Leaving aside the
dredging of the 2010 cano, which it had dealt with separately,
the Court focused on ‘whether Nicaragua’s dredging activities in
the Lower San Juan carried a risk of significant transboundary
harm, ’ in particular to ‘the flow of the Colorado River, which
could also adversely affect Costa Rica’s wetland.’1325The Court
noted Nicaragua’s 2006 study, which found inter alia that the
dredging program would not have a significant impact on the
flow of the Colorado River, and that ‘[t]his conclusion was later
confirmed by both Parties’ experts.’1326
On the basis of its having examined the evidence in the case
file and provided by the testimony given by the Parties’ experts,
the Court found that Nicaragua’s ‘dredging programme planned
in 2006 was not such as to give rise to a risk of significant
transboundary harm, either with respect to the flow of the
132430See, e.g., Rio Declaration on Environment and

Development, Principle 19 (requiring prior and timely
notification of activities that may have a significant adverse
transboundary environmental effect), June 14, 1992, UN Doc.
A/CONF.151/5/Rev. 1,31 ILM 874 (1992); and International Law
Commission, Draft Articles on Prevention of Transboundary
Harm from Hazardous Activities, Arts. 8-12 (same), YbILC 2001,
Vol. II, Part Two, pp. 146-147.
132632Ibid.
Colorado River or to Costa Rica’s wetland.’ 1327From this the
Court drew the following conclusion on the question whether
Nicaragua was required to prepare an EIA in respect of its
dredging program: ‘In light of the absence of risk of significant
transboundary harm, Nicaragua was not required to carry out
an environmental impact assessment.’1328
To sum up, then, the Court in effect found that where it
appears there is a possible risk of transboundary harm from a
planned activity, a State is required to conduct a preliminary
‘screening’ analysis—which took the form here of Nicaragua’s
2006 study—to determine whether the planned project entailed
a risk of significant transboundary harm. If the answer is ‘no,’
that ends the matter. If, however, the answer is ‘yes,’ a full EIA
would be required. The Court’s elaboration on the methodology
of fulfilling the obligation of environmental impact assessment
will doubtless provide useful guidance to States in the future.
Having elucidated the applicable principles of environmental
impact assessment in its discussion of issues in the Certain
Activities case, it remained for the Court only to apply them in the
Road case. In that case, Costa Rica initiated construction of the
road in December 2010 without having prepared an EIA.
Nicaragua contended that Costa Rica had therefore breached
the obligation to prepare an EIA. Costa Rica did not contest the
existence of such an obligation but contended that ‘the
construction of the road did not create a risk of significant
transboundary harm [ . . . ] ’1329and therefore the obligation was
not triggered. In addition, Costa Rica argued that its adoption
of a declaration of a state of emergency on 21 February 2011
exempted it from the EIA obligation in any event.1330Finally,
Costa Rica argued that even assuming it was required to
conduct an environmental impact assessment, ‘it fulfilled the
obligation by carrying out a number of post hoc environmental
impact studies, including an “Environmental Diagnostic Assess-
132733Ibid.
1328Ibid.
1330Ibid., paras 64 and 148.
376 S.C. McCaffrey
ment” in 2013.’1331
Nicaragua responded that there was no bona fide emergency,
that the road is not located near the disputed territory so it
would not in any event be an appropriate response to
Nicaragua’s alleged invasion, and that the alleged emergency
was declared several months after construction of the road had
begun. Nicaragua further maintained that there is no
emergency exception to the EIA obligation and pointed out that
Costa Rica violated a fundamental principle of international law
by seeking to rely on its domestic law to excuse it from
complying with its international obligations. Finally, Nicaragua
contested Costa Rica’s contention that environmental impact
studies conducted after most of the work on the road had been
completed could constitute an adequate EIA.
The Court first recalled its earlier statement that the
obligation to prepare an EIA is an outgrowth of the
fundamental substantive obligation to exercise due diligence to
prevent significant transboundary harm. The due diligence
obligation of prevention ‘requires [a] State to ascertain whether
there is a risk of significant transboundary harm prior to
undertaking an activity having the potential adversely to affect
the environment of another State.’ This is the preliminary
‘screening’ procedure referred to earlier. ‘If that is the case, the
State concerned must conduct an environmental impact
assessment.’1332According to the Court, in the present case ‘it
fell on Costa Rica, not on Nicaragua, to assess the existence of
a risk of significant transboundary harm prior to the
construction of the road, on the basis of an objective evaluation
of all the relevant circumstances.’1333
While counsel for Costa Rica had stated in the oral
proceedings that ‘a preliminary assessment of the risk posed by
the road project was undertaken when the decision to build the
road was made [which] concluded that the road posed no risk
1331 Ibid., para 149.

31

1333Ibid.
of significant harm,’40the Court found that ‘Costa Rica has not
adduced any evidence that it actually carried out such a
preliminary assessment.’41The Court proceeded to undertake its
own evaluation of ‘whether, as of the end of 2010, the
construction of the road posed a risk of significant
transboundary harm [ . . . ] . ’42This portion of the judgment is
instructive for future instances in which a State is
contemplating a project that may pose a risk of significant
transboundary harm. In conducting this analysis, the Court
explained that it ‘will have regard to the nature and magnitude
of the project and the context in which it was to be carried
out.’43
The Court identified the following three decisive factors:
First, ‘contrary to Costa Rica’s submission, the scale of the road
project was substantial.’44It is some 160 km long, 108.2 km of
which runs along the river, and about half of that distance ‘is
completely new construction.’45Second, ‘because of the planned
location of the road along the San Juan River, any harm caused
by the road to the surrounding environment could easily affect
the river, and therefore Nicaragua’s territory.’46And third, the
fact that ‘[t]he road would pass through a wetland of
international importance in Costa Rican territory and be located
in close proximity to another protected wetland—the Refugio de
Vida Silvestre Rio San Juan— situated in Nicaraguan territory [ . . . ]
heightens the risk of significant damage because it denotes
that the receiving environment is particularly sensitive.’ 47The
Court concluded that ‘the construction of the road by Costa
Rica carried a risk of significant transboundary harm [and] the
threshold for triggering the obligation to evaluate the
environmental impact of the road project was [therefore]
met.’48
The Court then turned to the question whether Costa Rica
had complied with its obligation to conduct an EIA. It noted
that Costa Rica had produced several studies which ‘assessed
the adverse effects that had already been caused by the
construction of the road on the environment and suggested
steps to prevent or reduce them.’49But it held that since those
378 S.C. McCaffrey
studies were post hoc assessments while the EIA obligation
‘requires an ex ante evaluation of the risk of significant
transboundary harm,’50they did not satisfy Costa Rica’s
obligation to conduct an EIA concerning the construction of the
road.51
40
Ibid.,
para
41
Ibid.
42
Ibid,
154.
43
Ibid.
44
Ibid.
para
45
Ibid.
46
Ibid. 41
Ibid.
48
155.
Ibid.,
49
Ibid.,
50
Ibid.,
51
Ibid.,
para 156.
para 160.
para 161.
paras 161 and 162.
The Court also examined Nicaragua’s allegation that Costa
Rica’s failure to prepare an environmental impact assessment
breached Article 14 of the Convention on Biological Diversity.
The Court found that Article 14 does not establish an obligation
to carry out an EIA before undertaking an activity that may
have significant adverse effects on biological diversity and that
therefore Costa Rica had not breached that provision.
In sum, lessons to be drawn from this decision concerning
whether an EIA must be prepared for a particular project
include whether it is ‘substantial’ in character, its proximity to
the territory of another State, and the sensitivity of the
receiving environment—here, the project’s proximity to an
internationally protected area. All of this is subject to, and
controlled by, the overarching obligation of due diligence.
3.1.3 Is There an Emergency Exemption to the Obligation to Carry Out an

EIA?
As to the question whether Costa Rica’s emergency declaration

exempted it from its EIA obligations, the Court concluded it did
not. While recalling its holding that ‘it is for each State to
determine [ . . . ] the specific content of the environmental impact
assessment required in each case,’1334the Court underlined that
this ‘does not relate to the question of whether an
environmental impact assessment should be undertaken.’1335It
concluded that ‘the fact that there may be an emergency
exemption under Costa Rican law does not affect Costa Rica’s
obligation under international law to carry out an environmental
impact assessment.’1336This is an important holding,
emphasizing as it does that the principle underlying Article 27
of the Vienna Convention on the Law of Treaties1337is equally
applicable to emergency declarations under domestic law. The

1335Ibid.
1336Ibid.
13375523 May 1969, 1155 UNTS 331,8 ILM 679. Article 27 provides
in relevant part: ‘A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty. ’
380 S.C. McCaffrey
Court went on to find that in any event, ‘in the circumstances
of this case, there was no emergency justifying the immediate
construction of the road [.. .].’1338Having made that finding,
however, the Court noted that it did ‘not need to decide
whether [under international law] there is an emergency
exemption from the obligation to carry out an environmental
impact assessment in cases where there is a risk of significant
transboundary harm.’1339On the basis of the foregoing
considerations, the Court concluded that ‘Costa Rica was under
an obligation to conduct an environmental impact assessment
prior to commencement of the construction works.’ 1340
3.1.4 Notification and Consultation
In the joined cases the Court also considered the parties’

allegations of breaches of the obligation to notify and consult.
As was the case with environmental impact assessment, the
Court noted that ‘[t]he Parties concur on the existence in
general international law of an obligation to notify, and consult
with, the potentially affected State in respect of activities which
carry a risk of significant transboundary harm.’1341It has already
been seen that the Court in its judgment in the joined cases
found that good faith notification and consultation may be
required pursuant to a State’s due diligence obligation of
prevention once an environmental impact assessment reveals a
risk of significant transboundary harm.1342
In the Certain Activities case, Costa Rica argued that Nicaragua
was under an obligation to notify and consult with it regarding
Nicaragua’s dredging program. Costa Rica based this
contention on customary international law, the Ramsar
Convention and the Convention on the Conservation of
Biodiversity and Protection of Priority Wildlife Areas in Central
America (the ‘Central American Biodiversity Convention’). 1343For

133957Ibid.
134058Ibid.
1342Ibid., para 104. Notification and consultation would
be
required ‘where that is necessary to
1343determine the appropriate measures to prevent or mitigate
Nicaragua, since the 1858 Treaty as interpreted in the Cleve-
land Award is the lex specialis and says nothing about a duty to
notify and consult with Costa Rica regarding Nicaragua’s
dredging activities or other ‘works of improvement,’ ‘any such
duty in customary or treaty law does not apply to the facts of
the case.’1344Nicaragua further pointed out that both countries’
studies indicated that the dredging program did not pose a risk
of significant transboundary harm and thus such a duty would
not be triggered. Nicaragua also contended that neither the
Ramsar Convention nor the Central American Biodiversity
Convention gave rise to a duty to notify and consult. On the
basis of the foregoing, the Court found in the Certain Activities case
that ‘it has not been established that Nicaragua breached any
procedural obligations owed to Costa Rica under treaties or the
customary international law of the environment.’1345
The obligation to notify and consult was also involved in the
Road case, where Nicaragua contended that it had been
breached by Costa Rica in relation to the road’s construction.
Nicaragua identified three sources of the obligation: customary
international law, the 1858 Treaty, and the Ramsar Convention.
As to Nicaragua’s lex specialis argument, the Court made the
following observation, which will be of significance in
subsequent cases: ‘The Court observes that the fact that the
1858 Treaty may contain limited obligations concerning
notification or consultation in specific situations does not
exclude any other procedural obligations with regard to
transboundary harm which may exist in treaty or customary
international law.’13461347Thus the 1858 Treaty’s declaration that
Nicaragua enjoys ‘exclusive dominium and imperium over the waters
of the San Juan River’ (‘exclusivamente el dominio y sumo imperio sobre las
that risk’ (ibid.).

1344 Ibid, para 106.
i
1345 Ibid.,
2
para 107.
3
Ibid., para
112.
13475Treaty of Limits, supra n. 8, Art. VI.
382 S.C. McCaffrey
with all that entails, does not exclude the
aguas del rio de San Juan’),65
possibility that subsequent treaties or obligations under general
international law may impose obligations additional to those in
the treaty that would be binding on Nicaragua. In the event,
however, this possibility did not eventuate in the circumstances
of the case with regard to customary international law because
of the Court’s finding that: ‘since Nicaragua was not under an
international obligation to carry out an environmental impact
assessment in light of the absence of risk of significant
transboundary harm [ . . . ] , it was not required to notify, or
consult with, Costa Rica.’1348
As to the Ramsar and Central American Biodiversity
conventions, the Court found that Nicaragua was not required
to notify and consult with Costa Rica under either. Article 3(2)
of the Ramsar Convention was limited to notification of the
Ramsar Secretariat, but under circumstances not present in the
case, since the Court found that there was no evidence that
‘Nicaragua's dredging programme has brought about any
changes in the ecological character of the wetland
[...].’1349Article 5 of the Ramsar Convention requires the Parties
to notify and consult with each other ‘about implementing
obligations arising from the Convention,'1350but it ‘does not
create an obligation on Nicaragua to consult with Costa Rica
concerning a particular project that it is undertaking, in this
case the dredging of the Lower San Juan River.’1351Therefore,
the Court found that ‘Nicaragua was not required under the
Ramsar Convention to notify, or consult with, Costa Rica prior
to commencing its dredging project.’1352Finally, the Court
concluded that Nicaragua was not required to notify and
consult with Costa Rica under the Central American Biodiversity
Convention ‘as neither of the two provisions invoked by Costa

134967Ibid., para 109.
135068Ramsar Convention, supra n. 16, Art. 5, as quoted in ibid.,
para 110.
1352Ibid.
Rica contains a binding obligation to notify or consult.' 1353
With regard to customary international law, the Court found
it unnecessary to examine Nicaragua’s contentions since it had
already found that Costa Rica had not complied with its
obligation to conduct an EIA prior to constructing the road. The
obligation to notify and consult would arise if an EIA found that
there is a risk of significant transboundary harm.
As to the 1858 Treaty, Nicaragua had argued that since the
Court had held in the Navigational and Related Rights case that
Nicaragua had an obligation to notify Costa Rica of its
regulations concerning navigation on the San Juan, by parity of
reasoning Costa Rica would be under a similar obligation with
regard to the construction of the road since that affects
Nicaragua’s navigational rights on the river. The Court found,
however, that the 1858 Treaty did not impose such an
obligation on Costa Rica since the treaty ‘does not grant
Nicaragua any rights on Costa Rica’s territory, where the road
is located,’1354whereas it does accord Costa Rica limited rights of
navigation on the river, Nicaragua’ s territory.
Finally, with regard to the Ramsar Convention, the Court
found that Nicaragua had not shown that ‘by constructing the
road, Costa Rica [had] changed or was likely to change the
ecological character of the wetland situated in its territory,’ and
therefore was not obligated to notify and consult with
Nicaragua under the Convention. In addition, the Court noted
that Costa Rica had notified the Ramsar Secretariat ‘about the
stretch of the road that passes through the Humedal Caribe
Noreste’
1355
and that it therefore had not breached Article 3(2) of
the Convention. As to Article 5, the Court repeated its finding
that this provision does not establish an ‘obligation for Costa
Rica to consult with Nicaragua concerning a particular project
[.. .].’1356
In concluding its discussion of procedural obligations in the
1353 Ibid., para 111.

11

1356Ibid.
384 S.C. McCaffrey
Road case, the Court looked to the future, declaring that ‘Costa
Rica remains under an obligation to prepare an appropriate
environmental impact assessment for any further works on the
road or in the area adjoining the San Juan River, should they
carry a risk of significant transboundary harm.’1357Thus the
Court made it clear that at least where a State has failed to
prepare an EIA for a project, it must do so with regard to
further work on it where that work entails a risk of significant
transboundary harm. The Court noted that ‘Costa Rica accepts
that it is under such an obligation’1358and that Costa Rica would
have to consult with Nicaragua ‘to determine the appropriate
measures to prevent significant transboundary harm or
minimize the risk thereof’ if circumstances so required.1359
3.2 Substantive Obligations
The Court addressed alleged breaches of substantive

obligations in both the Certain Activities case and the Road case. In
the former, the Court held Nicaragua responsible for the harm
caused by what it found to be Nicaragua's breach of Costa
Rica's territorial sovereignty.1360However, Costa Rica made
additional claims in Certain
Activities. First, it contended that ‘the dredging programme
executed by Nicaragua in the Lower San Juan River was in
breach of Nicaragua’s obligations under customary international
law and caused harm to Costa Rican lands on the right bank of
the river and to the Colorado River.’1361Nicaragua responded
that (a) its dredging program had not caused any harm to
Costa Rica, including the Colorado River; (b) the program had
actually been beneficial to the dredged section of the Lower
San Juan River and to the wetlands of international importance
downstream; and (c) under the Cleveland Award, Nicaragua is
entitled to dredge the river, and ‘even if damage to Costa Rica’s

1358Ibid.
1359Ibid.
1360Ibid., paras 93 and 113.
136119Ibid., para 114.
territory resulted from the works to maintain and improve the
river, the dredging activities would not be unlawful.’1362Costa
Rica’s second claim was that:
“all of Nicaragua’s rights and obligations under the 1858
Treaty and the 1888 Award must be interpreted in the
light of principles for the protection of the environment in
force today” and that the Treaty and the Award do not
“override the application of environmental obligations
under general principles of law and under international
treaties” requiring States not to cause significant
transboundary harm.1363
The Court began its response to these contentions by
referring to its rule- statement in the Pulp 'Mills case that ‘under
customary international law, “[a] State is [ . . . ] obliged to use all
the means at its disposal in order to avoid activities which take
place in its territory, or in any area under its jurisdiction,
causing significant damage to the environment of another
State.”’1364The Court went on to explain that it would only have
to address the relationship between the 1858 Treaty as
interpreted in the Cleveland Award, on the one hand, and
current customary international law regarding transboundary
harm, on the other, if Costa Rica were able to prove that
Nicaragua’s dredging program in the Lower San Juan harmed
Costa Rica’s territory.1365The Court found such proof
lacking.1366The Court therefore concluded that ‘the available
evidence does not show that Nicaragua breached its obligations
by engaging in dredging activities in the Lower San Juan
River.’1367In the Road case, Nicaragua contended that
136280Ibid., para 115. Both Parties invoked in this connection

para. 3(6) of the Cleveland Award, which gives Nicaragua the
right to execute works of improvement on the river subject to
certain provisos regarding the avoidance of specified types of
harm. See ibid., para 116. As will be seen, the Court found that
none of these kinds of harm was established by Costa Rica.
1363 Ibid., para 117.
136482Ibid., para 118,citing ICJ Reports 2010 (I), p. 56, para 101; and, see also Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996 (I), pp. 241-242, para 29.
136583Certain Activities; Construction of a Road (Judgment), supra n. 9, para. 118.
136684Ibid., para 119.
386 S.C. McCaffrey
‘construction of the road caused damage to the San Juan
River,’1368part of Nicaragua’s territory, and thus Costa Rica
‘breached the obligation under customary international law not
to cause significant transboundary harm to Nicaragua, the
obligation to respect the territorial integrity of Nicaragua and
treaty obligations regarding the protection of the
environment.’1369The Parties differed sharply as to whether
significant quantities of sediment from the road were carried
into the San Juan River and caused significant harm to
Nicaragua. They presented considerable amounts of scientific
and technical evidence to support their positions. This
presented the Court with a difficult situation, somewhat akin to
the one it had faced in the Pulp Mills case, requiring as it did that
sixteen judges, who are lawyers, evaluate the significance of
detailed technical submissions. In the words of the Court:
Over the past four years, the Parties have presented to
the Court a vast amount of factual and scientific material
in support of their respective contentions. They have also
submitted numerous reports and studies prepared by
experts and consultants commissioned by each of them
on questions such as technical standards for road
construction; river morphology; sedimentation levels in
the San Juan River, their causes and effects; the
ecological impact of the construction of the road; and the
status of remediation works carried out by Costa Rica.
Some of these specialists have also appeared before the
Court to give evidence in their capacity as experts 1370
pursuant to Articles 57 and 64 of the Rules of Court.
The Court went on to say that it was its duty to ‘make its
own determination of the facts’1371in light of the evidence
presented by both sides and to apply the relevant rules of
international law to those facts.
The Court proceeded with this analysis under three main
heads: (1) The alleged breach of the obligation not to cause
significant transboundary harm to Nicaragua; (2) Alleged
breaches of treaty obligations; and (3) The obligation to
respect Nicaragua’s territorial integrity and sovereignty over the
136886Ibid., para 174.

1369Ibid.
San Juan River. The focus here will be on the first point, as to
which the Court considered (a) The contribution of sediment
from the road to the river; and (b) Whether the road- derived
sediment caused significant harm to Nicaragua, including
alleged harm (i) caused by increased sediment concentrations
in the river, (ii) to the river’s morphology, navigation and
Nicaragua’s dredging program, (iii) to water quality and the
aquatic ecosystem, and (iv) other alleged harm. It concluded
that despite the large quantities of road-derived sediment
reaching the river (estimates ranged from 75,000 tonnes per
year (Costa Rica) to 190,000-250,000 tonnes per year (Nicara-
gua)), ‘Nicaragua has not proved that the construction of the
road caused it significant transboundary harm.’1372The Court
therefore dismissed ‘Nicaragua’s claim that Costa Rica breached
its substantive obligations under customary international law
concerning transboundary harm [.. .].’1373
The Court’s analysis of Nicaragua’s claims concerning harm
caused by increased sediment concentrations in the river is
illustrative of its approach and therefore instructive. Nicaragua
had cited the commentary to the International Law
Commission’s Draft Articles on Prevention of Transboundary
Harm from Hazardous Activities in support of its contention that
any detrimental impact of the construction of the road on the
San Juan River ‘need only be susceptible of being measured to
qualify as significant harm.’1374Nicaragua argued that since both
Parties’ experts had estimated the quantity of road-derived
sediment in the river, showing that it was measurable, it
followed that the sediment had caused Nicaragua significant
harm. Costa Rica denied that Nicaragua had shown significant
harm by factual standards.
The Court characterized as ‘unfounded’1375Nicaragua’s view
that any detrimental impact on the river capable of being
measured constitutes significant harm. It observed that

1373Ibid.
137593Ibid., para 192.
388 S.C. McCaffrey
‘sediment is naturally present in the river in large
quantities’1376and said that Nicaragua had not ‘shown that the
river’s sediment levels are such that additional sediment eroded
from the road passes a sort of critical level in terms of its
detrimental effects.’1377The Court stated that it would therefore
consider the ‘relative impact’1378of the road-derived sediment on
the San Juan’s current overall sediment load. It found that ‘the
road is contributing at most 2 per cent of the river’s total load’
and that ‘significant harm cannot be inferred therefrom
[.. .].’1379The Court therefore concluded that ‘Nicaragua has not
established that the fact that sediment concentrations in the
river increased as a result of the construction of the road in and
of itself caused significant transboundary harm.’1380
The Court went on to find that Nicaragua had not shown
that Costa Rica breached the treaties Nicaragua relied
upon1381and that Nicaragua’s theory that the delivery of
137694Nicaragua’s experts had pointed out that much of the

sediment in the river was carried there by the San Carlos and
Sarapiqui Rivers from areas in Costa Rica that had been cleared
for agriculture. The Court itself recognized that ‘the tributaries
(particularly the San Carlos and Sarapiqui Rivers) are major
sources of sediment for the San Juan’ (ibid., para 195).
137896Ibid., para 193.
1379 Ibid., para 194.
91
1380Ibid., para 196. In the Pulp Mills case, the Court observed that
‘with regard to the River Uruguay,
1381which constitutes a shared resource, “significant damage to the
other party” (Article 7, first paragraph, of the 1975 Statute)
may result from impairment of navigation, the reigime of the
river or the quality of its waters’ (Pulp Mills (Judgment), p. 56,
para. 103) (emphasis added). "Ibid., para 220. Those treaties
were the Ramsar Convention, the 1990 Agreement over the
Border Protected Areas between Nicaragua and Costa Rica (the
‘SI-A-PAZ Agreement’), the Convention on Biological Diversity,
the Convention for the Conservation of Biodiversity and
Protection of Priority Wildlife Areas in Central America, the
Central American Convention for the Protection of the
Environment and the Tegucigalpa Protocol to the Charter of the
Organization of Central American States, and the Regional
Agreement on the Transboundary Movement of Hazardous
Wastes.
sediment from the road into the river, Nicaragua’s territory,
amounted to a ‘trespass,’ was ‘unconvincing.’ 1382On the latter
point, the Court stated that there was no evidence that ‘Costa
Rica exercised any authority on Nicaragua’s territory or carried
out any activity therein,’ nor that construction of the road
‘impaired [Nicaragua’s] right of navigation on the San Juan
River.’ Thus the Court did not accept the theory that
transboundary pollution can constitute a ‘trespass’ or an
‘invasion,’ instead requiring the exercise of authority or carrying
out of activities in the affected State for such claims to be
established.
These findings by the Court underscore the difficulty for
States of making out a case of transboundary environmental
harm when the cause of the harm is incremental rather than
sudden. In some ways the Court’s opinion on the question of
Costa Rica’s breach of substantive obligations in the Road case is
reminiscent in this respect of its judgment in the Pulp Mills case.
In neither case was the Applicant State able to convince the
Court that there had been a breach. The cases were, of course,
very different, but both raise the question—adverted to in the
joint dissenting opinion of Judges Al-Khasawneh and Simma in
1383
Pulp Mills —whether it would be helpful to the Court to take
advantage of the possibility contemplated in Article 50 of its
Statute to appoint an expert body to ‘carry [ . . . ] out an enquiry
or giv[e] an expert opinion.’ As Judges Al-Khasawneh and
Simma observe, disputes ‘with complex scientific or technical
aspects [ . . . ] will become all the more common as the world will
be faced with more environmental or other challenges
[.. .]’1384In such cases, the Court may wish to ‘more readily avail
itself of the tools available to it under its constitutive instrument
in order properly to assess the evidence placed before it.’ 1385
The Court’s treatment of Nicaragua’s request for reparation

1383 Pulp Mills (Judgment), supra n. 25, Joint dissenting opinion of
1m
Judges Al-Khasawneh & Simma, ICJ Reports 2010, p. 112, para 8.

1384Ibid., para 9.
1385103Ibid.
390 S.C. McCaffrey
in respect of Costa Rica’s alleged breaches of its international
obligations deserves brief mention insofar as the Court’s
conclusions bear on international environmental law. First, with
regard to procedural obligations, the Court stated that its
‘declaration that Costa Rica violated its obligation to conduct an
environmental impact assessment is the appropriate measure
of satisfaction for Nicaragua.’1386This mirrors the Court’s
approach in Pulp Mills.1387Second, Nicaragua requested that the
Court order Costa Rica to restore the situation that existed
before the road was constructed to the extent possible, and to
provide compensation for any damage that was not made good
by restitution. The Court rejected this request on the ground
that it had not been shown that ‘construction of the road
caused significant harm to Nicaragua or was in breach of other
substantive obligations under international law.’ 1388Thus, the
Court found that restoration of the status quo ante ‘would not
constitute an appropriate remedy for Costa Rica’s breach of its
obligation to carry out an environmental impact
assessment.’1389Third, as to Nicaragua’s proposal that the Court
appoint ‘a neutral expert’1390to assist it with evaluating the
effects of the construction of the road, the Court found that
‘[i]n view of Nicaragua’s failure to prove that significant harm
was caused, [it did] not need to consider the appointment of
an expert or committee to evaluate the extent of harm and the
chain of causation, as Nicaragua suggests [.. .].’ 1391
4 Conclusion
This chapter has focused on the contributions of the

International Court of Justice to environmental law in two cases
involving Nicaragua. It has shown that these contributions have
1387105Pulp Mills (Judgment), supra n. 25, dispositif,para 1.
1389Ibid.
1390lmIbid., para 30.
been many and significant. The judgment in the two cases
considered, the Certain Activities and Road cases, contains a wealth
of material bearing upon the law of wetlands of international
importance, governed by the Ramsar Convention,
transboundary pollution, and the right of a state to maintain
the flow and navigability of a watercourse within its borders.
The Court clearly confirmed the point made in Pulp Mills
concerning the due-diligence nature of the obligation of
preventing transboundary harm. It spelled out what would be
required for a State to fulfil this obligation, laying out a two-
step process that a State proposing a new activity must follow:
First, it must ascertain, through a preliminary ‘screening’
process, whether the proposed activity entails a risk of
significant transboundary harm. Second, if such a risk is found,
the obligation to prepare an EIA would be triggered.
These cases also illustrate the challenges posed by cases
involving substantial evidence of a scientific and technical
nature, as well as those that deal with harm that builds
incrementally. They show that the Court is fully prepared to
hold States to their procedural obligations in the field of the
environment but that it will require clear and convincing
evidence of harm before finding a breach of the obligation to
prevent transboundary environmental harm.
Stephen C. McCaffrey Distinguished

Professor of Law, University of
the Pacific, McGeorge School of Law. Former member, chair
and special rapporteur of the International Law Commission.
Part VI
Procedural Issues in the Nicaraguan Cases
Intervention
Alina Miron
Abstract Nicaragua’s cases brought a great contribution to the

law on intervention. They clarified some of its characteristics,
the most important of which relating to the statutory nature of
intervention: thus, the admissibility of these proceedings is not
dependent upon the consent of the Parties, but on the
fulfilment of the conditions established by the Statute. Though
the Court took many years to acknowledge this fundamental
aspect, its case-law seems now stabilized—at least as a matter
of principle. The same cannot be said about the substantive
conditions for admissibility of intervention: absent any real
attempt from the Court to define the concept of ‘interest of a
legal nature which may be affected’, the admission of
intervention under Article 62 is still highly circumstantial.
These ambiguities also durably impacted the consequences of
intervention. The Court firmly maintains a peremptory
distinction between intervention as a party and intervention as
a non-party, but it also deprives it of any prospect of
clarification, since it has never admitted intervention as a
party. This emphatic insistence does not help clarifying the
status of the intervener, nor does it stimulate the reflection
upon its procedural rights and obligations.
Contents
1 Introduction..................................................................................................................................... 372
2 Trial and Error in EstablishingStatutory Jurisdiction Over Intervention........................................ 376
2.1 Intervention as an Incidental Proceeding............................................................................. 376
2.2 Jurisdiction on Intervention and the Principle of Consent ............................................... 377
2.3 The Court’s Margin of Discretion for Appreciating the Admissibility of a Request
for Intervention.................................................................................................................... 380
Alina Miron was part of the legal team representing the 3

Republic of Nicaragua in the Territorial and Maritime Dispute (Nicaragua v. 7
1
372 A. Miron
The views and opinions expressed in this Chapter are
Colombia).
those of the author and do not necessarily reflect the views
and opinions of the Republic of Nicaragua.
A. Miron (*)
University of Angers,
Angers, France e-mail:
alina.miron@univ-
angers.fr
9_16
Intervention 373
3 The Substantive Conditions for the Admissibility of Intervention............................................. 384
3.1 The Strategy of Avoidance in Defining the Concept of ‘Interest of a Legal Nature
Which May Be Affected’.................................................................................................. 384
3.2 Conditions as to the Object of Intervention...................................................................... 390
4 The Effect of the Judgment on the Merits and the Status of the Intervener............................... 393
References.......................................................................................................................................... 396
1 Introduction
‘Not really a third, certainly not a party’: this could resume the
ICJ’s approach to third-party intervention in contentious
proceedings. Thus, though the Court recognized that bilateral
disputes could interfere with the legal interests of States other
than the applicant and the respondent, it nonetheless
considerably restricted these States’ access to its jurisdiction.
Nicaragua’s cases involving intervention illustrate this paradox.
There are three relevant cases. Nicaragua was intervener in
one of them, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening),1and the applicant in two other, Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States)2and
Territorial and Maritime Dispute (Nicaragua v. Colombia)?Nicaragua’s
intervention in El Salvador/Honduras was the first intervention to be
admitted by the Court (in fact a Chamber) under Article 62 of
the Statute, and that decision was adopted despite opposition
by the parties. As a party, Nicaragua did not favour much the
applications for permission to intervene.1392The requests were
1392!See Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene,
Judgment, ICJ Reports 1990, p. 92 (hereinafter ‘El Salvador/Honduras (Application by Nicaragua to
Intervene)’).
2
See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215 (hereinafter
‘Nicaragua v. United States of America (Declaration of Intervention by El Salvador)’).
3
See Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Costa Rica for
Permission to Intervene, Judgment, ICJ Reports 2011, p. 348 (hereinafter ‘Nicaragua v.
Colombia(Application by Costa Rica to Intervene)’) and Territorial and Maritime Dispute (Nicaragua v.
Colombia), Application by Honduras for Permission to Intervene of Honduras, Judgment, ICJ Reports
2011, p. 420 (hereinafter ‘Nicaragua v. Colombia (Application by Honduras to Intervene)’).
4
Nicaragua’s position was to call the Court’s attention to some deficiencies in the applications for
permission to intervene, leaving it to the Court to appreciate whether the statutory conditions for
admissibility were met (Written Observations on the Declaration of Intervention (Nicaragua) in the
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
10 September 1984, para 1; Written Observations of the Republic of Nicaragua on the Application for
374 A. Miron
eventually rejected: it was the case for El
Salvador in Nicaragua v. United States as well as for Honduras’ and
Costa Rica’s in Nicaragua v. Colombia.
On the overall, Nicaragua’s cases only confirm the Court’s
reluctance to open the door to third States through these
incidental proceeding. Thus, though the ICJ’s jurisdiction on
intervention is statutory, in the sense that it does not depend
on the consent of the Parties, but on the fulfilment of the
conditions for admissibility set out in the Statute and in the
Rules, the Court’s attitude is restrictive and excessively
prudential. The Court appreciated quite restrictively the
conditions for the admissibility of intervention set out by its
own case-law, even in cases where the Parties did not
object.1393This prudence is encouraged by the Rules of the
Court, which seek to preserve the balance between the
autonomy of the Parties (and the principle of consent) and the
integrity of the dispute entrusted to the Court. This is apparent
in Article 84 of the Rules which provides for systematic
preliminary proceedings (oral and/or written) for dealing with
the admissibility of the application for permission to intervene,
regardless of whether it was made under Article 62 or 63 of
the Statute.1394
This being said, the Court’s case-law on intervention does
not leave a great impression of coherence: rigidity is followed
by relaxation which is yet again followed by rigidity. 1395Of
Permission to Intervene by the government of Costa Rica, 26 May 2010, para 41 and Written
Observations of the Republic of Nicaragua on the Application for Permission to Intervene Filed by the
Republic of Honduras, 26 May 2010, para 41).
1393See also Nicaragua v. Colombia (Application by Honduras to
Intervene), supra note 3, Dissenting Opinion of Judge Donoghue,
p. 485, paras 37-38.
1394Article 84, paragraph 2 of the Rules provides for a right to
oral hearings on the admissibility of intervention in case of an
objection of one of the parties. In this case, the Court decides
by a judgment. Absent any objection, the Court decides of the
admissibility of intervention by an order.
1395In 1990, the acceptance of Nicaragua’s intervention in El
Salvador/Honduras was preceded by two judgements rejecting
Malta’s Application for permission to intervene in Continental Shelf
Intervention 375
course, each application is judged on its own merits. However,
the Court has done little to tame the diversity and systemize
the conditions for intervention, the difference of appreciation
of similar situations being particularly perceptible in maritime
delimitation cases.
These variations are essentially due to the duality of the
functions of intervention. The procedure is perceived as both
protective/preventive and informative: protective for the non-
parties whose legal interests may be at stake; informative for
(Tunisia/Libyan Arab Jamahiriya) (Judgment of 14 April 1981) (hereinafter

‘Tunisia/Libya (Application by Malta to Intervene)’) and Italy’s
Application in Continental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment of 21
March 1984) (hereinafter ‘Libya/Malta (Application by Italy to
Intervene)’). In 1994, the Court accepted Equatorial Guinea’s
application for permission to intervene in Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria). However, Costa Rica’s and
Honduras applications were denied in 2011, while, the same
year, Greece’s request was admitted in Jurisdictional Immunities of the State
(Germany v. Italy) (Order of 4 July 2011, ICJ Reports 2011, p. (hereinafter ‘Jurisdictional
Immunities (Application by Greece to Intervene)’)). In 2013, the
Court acceded to New Zealand’s request to intervene in Whaling in
the Antarctic (Australia v. Japan) (Order of 6 February 2013, ICJ Reports 2013, p. 3
(hereinafter ‘Whaling (Declaration of Intervention by New
Zealand)’)), but, to the difference of the previous cases, this
one was based on Article 63 of the Statute.
376 A. Miron
the Court on aspects of law and fact before it.139613971398The
informative function disturbs the Court’s main mission which,
in contentious proceedings, is ‘to resolve existing disputes
between States’.1399At times, the Court even insisted that ‘the
requests that parties submit to the Court [ . . . ] must [ . . . ] always
relate to the function of deciding disputes’.1400By contrast, the
applications for permission to intervene must not aim at
deciding disputes, quite the contrary.1401Their informative
purposes relate more to the second aspect of the Court’s
‘normal judicial function [which is to ascertain] the existence or
otherwise of legal principles and rules’,1402the particularity of
intervention being that this concerns not only abstract rules of
general application, but also ‘the nature of the legal rights’ 1403of
the would-be intervener. In its most recent cases, the Court
13968This distinction appears in Sir Ian’s pleadings in the El

Salvador/Honduras case: ‘In the submission of Nicaragua, the
protective function is not to be equated with the informative or
prescriptive function of intervention characterized [...] as being
concerned with ensuring ‘the sound administration of justice’.
The protective function complements the informative function
but provides the intervening State with the opportunity to
explain the legitimate interests of the intervener which are
placed in issue by the litigation between the Parties. The
function of protection involves a consideration of the objectives
of the litigants and the precise modes in which those
objectives may affect the legal entitlements of the intervening
State.’ (Verbatim,
1397 June 1991, C 4/CR 91/43 p. 46 (Ian Brownlie)). The
terminology ‘protective/ informative
1398function’ was taken up by the doctrine (e.g.: Forlati 2014,
p. 190).
13999Frontier Dispute (Burkina Faso/Niger), Judgment, ICJ Reports 2013, p. 70, para 48 quoting
Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, pp. 270-271, para 55; Nuclear Tests
(New Zealand v. France), Judgment, ICJ Reports 1974, p. 476, para 58.
1400Ibid.
140111See Sect.3.2.1 below.
1402Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 237,
para 18.
140313El Salvador/Honduras (Application by Nicaragua to Intervene),
supra note 1, p. 130, para 90.
Intervention 377
appears to have favoured the informative function.
A further source of complexity stems from the fact that this
duality of functions does not correspond to the types of
intervention established by the Statute of the Court. On a
superficial reading, Article 63 would be the gateway for the
informative function, since it grants ‘the right to intervene’ to
parties to a convention whose construction is sub judice.1404Article
62, on the other hand, would mainly relate to the protective
function, since it recognizes the possibility to intervene to a
third State having ‘an interest of a legal nature which may be
affected by the decision in the case’. In the judgment rejecting
Costa Rica’s request for intervention in the Nicaragua v. Colombia
case, the Court expressly endorsed the terminology and
seemed to adhere to the underlying philosophy:
The decision of the Court granting permission to
intervene can be understood as a preventive one, since it is
aimed at allowing the intervening State to take part in the
main proceedings in order to protect an interest of a legal 1405
nature which risks being affected in those proceedings.
However, the requests for intervention1406and the Court’s
decisions on their admissibility entertain a jumble of the
functions of intervention. Thus, the informative purposes have
become preponderant even under Article 62. Already in El
Salvador ¡'Honduras, the Chamber found that:
[I]t is perfectly proper, and indeed the purpose of
intervention, for an intervener to inform the Chamber of
what it regards as its rights or interests, in order to
ensure that no legal interest may be ‘affected’ without the
intervener being heard.1407
140414‘[I]n accordance with the terms of Article 63 of the
Statute, the limited object of the intervention is to allow a third
State not party to the proceedings, but party to a convention
whose construction is in question in those proceedings, to
present to the Court its observations on the construction of
that convention’ (1Whaling (Declaration of Intervention by New
Zealand), supra note 7, p. 5, para 8).
1405Nicaragua v. Colombia (Application by Costa Rica to Intervene),
supra note 3, p. 359, para 27— italics added.
1406The phrase ‘request for intervention’ is used to
encompass both the ‘application for permission to intervene’
under Article 62 of the Statute and ‘the declaration of
intervention’ under Article 63.
1407 El Salvador/ Honduras (Application by Nicaragua to Intervene),
11

378 A. Miron
And in Nicaragua v. Colombia, the Court found that the mere fact
of being informed of the legal interests at stake tends to
perform the protective function:
The precise object of the request to intervene certainly
consists in informing the Court of the interest of a legal
nature which may be affected by its decision in the
dispute between Nicaragua and Colombia, but the
request is also aimed at protecting that interest.1408
Nicaragua’s cases involving intervention must be assessed
against this background. Of course, they cannot be analysed in
isolation from the other decisions relating to this proceeding,
but the present paper will focus on the clarifications brought
by them, but also on the uncertainties and confusions they
perpetuated or even created.
The main clarification relates to the statutory nature of
intervention: its admissibility is not dependent upon the
consent of the Parties, but rather on the fulfilment of the
conditions established by the Statute. Though the Court took
many years to acknowledge this fundamental aspect, its case-
law seems now stabilized—at least as a matter of principle (1).
The ambiguities as to the functions of intervention have
however left a durable imprint on the conditions for
admissibility: absent any real attempt from the Court to define
the concept of ‘interest of a legal nature which may be
affected’, the admission of intervention under Article 62
remains highly circumstantial (2). These ambiguities also
durably impacted the consequences of intervention. The Court
firmly maintains a peremptory distinction between intervention
as a party and intervention as a non-party, but it also deprives
it of any prospect of clarification, since it has never admitted
intervention as a party. However, this emphatic insistence does
not help clarifying the status of the intervener, nor does it
stimulate the reflection upon its procedural rights and
obligations (3).

Intervention 379
2 Trial and Error in Establishing Statutory Jurisdiction
Over Intervention
There are too few certainties surrounding intervention not to

highlight them from the outset. First, intervention is an
incidental proceeding: El Salvador’s application to intervene in
Nicaragua v. United States set it out clearly (Sect. 2.1). Second,
Nicaragua’s application for intervention in the case El
Salvador/Honduras allowed the Court to establish that this type of
jurisdiction is not based on the principle of consent, but on
statutory provisions (Sect. 2.2). It falls therefore upon the Court
to appreciate the admissibility of the request, in light of the
conditions set out in the Statute and the Rules. However, its
margins of appreciation are different under Articles 62 and 63
of the Statute (Sect. 2.3).
380 A. Miron
2.1 Intervention as an Incidental Proceeding
Intervention is an incidental proceeding which comes within

the purview of a principal case. This characteristic was
recognized from the outset, though the consequences arising
from it have been detailed in time. El Salvador’s attempt to
intervene in Nicaragua v. United States raised the question whether
intervention could relate to another incidental proceeding
(such as preliminary objections). Since El Salvador’s application
raised numerous issues relating to the substance of the case,
the Court considered it to be premature:
[T]he Declaration of Intervention of the Republic of El
Salvador, which relates to the present phase of the
proceedings, addresses itself also in effect to matters,
including the construction of conventions, which
presuppose 1409
that the Court has jurisdiction to entertain
the dispute.
The Court reached this conclusion in relation to a
declaration of intervention made under Article 63 of the
Statute (El Salvador filed its declaration with respect to the
construction of certain provisions of the Charter of the United
Nations). The same conclusion would necessarily apply to
intervention under Article 62, in respect to which the Court
enjoys a larger margin of appreciation.1410
1409Nicaragua v. United States of America (Declaration of Intervention by
El Salvador), supra note 2, p. 216. Here the Court clarified and
confirmed a stance already announced in Haya de la Tore case
(‘every intervention is incidental to the proceedings in a case’—
ICJ Reports 1951, p. 76) and in ‘the Nuclear Tests case, where [...] the
ICJ deferred consideration of Fiji’s request to intervene until it
had pronounced on France’s objections to jurisdiction and
admissibility’ (Miron and Chinkin 2018, p. 1344). Ultimately the
Court found that ‘the claim of New Zealand no longer has any
object and that the Court is therefore not called upon to give a
decision thereon; [...] in consequence there will no longer be
any proceedings before the Court to which the Application for
permission to intervene could relate’ (Nuclear Tests (New Zealand v. France),
Application by Fiji for Permission to Intervene, Orders of 20 December 1974, ICJ Reports 1974, p.
535).
1410See Sect. 2.3 below.
Intervention 381
Nicaragua’s application to intervene in El Salvador/Honduras
emphasised another consequence of the incidental character of
intervention. The case had been submitted by compromis to a
Chamber of the Court. Nicaragua contended that it was up to
the full Court to pronounce upon the admissibility of its request
to intervene made under Article 62 of the Statute. In a
preliminary order, the full Court rejected Nicaragua’s claim,
insisting that:
the rule of law that ‘every intervention is incidental to the
proceedings in a case’ [...], applies equally whether the
intervention is based upon Article 62 or Article 63 of the
Statute.1411
Consequently,
it is for the tribunal seised of a principal issue to deal also
with any issue subsidiary thereto; whereas a chamber
formed to deal with a particular case therefore deals not
only with the merits of the case,1412 but also with incidental
proceedings arising in that case.
The Chamber's judgment on the admissibility of Nicaragua's
application for permission to intervene also insists upon the
incidental nature of the proceedings:
It is noteworthy that intervention is dealt with in Chapter
III of the Court's Statute, which is headed “Procedure”.
This approach was adopted by the Court also when it
drew up and revised its Rules of Court, where
intervention appears in Section D of the Rules, headed
“Incidental Proceedings”. Incidental proceedings by definition1413
must be those
which are incidental to a case which is already before the Court or Chamber?
1411Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene,
Order of 28 February 1990, ICJ Reports 1990, p. 4, quoting Haya de la Torre, Judgment, ICJ Reports
1951, p. 76.
141222Ibid.
382 A. Miron
To the difference of the full Court, the Chamber's insistence
upon the incidental nature of intervention does not aim at
stressing out its own jurisdiction, but gives ground to another
exception to the principle of consensual jurisdiction.
2.2 Jurisdiction on Intervention and the Principle of Consent
The Court’s prudence in establishing statutory jurisdiction is

understandable, considering that ‘one of the fundamental
principles of its Statute is that it cannot decide a dispute
between States without the consent of those
States’.1414Intervention by a third State in contentious
proceedings troubles this founding principle.1415
141424Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judg -
ment, ICJ Reports 1998, p. 324, para 116, quoting East Timor (Portugal v. Australia), Judgment, ICJ
Reports 1995, p. 101, para 26.
supra note 1, p. 133, para 99; see also Libya/Malta (Application by
Italy to Intervene), supra note 7, p. 22, para 35.
Intervention 383
in relation to all the circumstances of a particular case’. 1419This
brings intervention dangerously close to judicial settlement of
disputes, for which States’ consent is indeed required. The
Court’s role was to maintain the distance between them. This
was indeed a tightrope walking exercise: at first, the Court
seemed to decide between the conflicting views expressed
ever since the adoption of the PCIJ’s Statute, by introducing,
on the occasion of the 1978 revision of the Rules, a reference
to the ‘basis of jurisdiction’ in Article 81, paragraph 2 (c):
The application [for permission to intervene under Article
62 of the Statute] [...] shall set out [...] any basis of
jurisdiction which is claimed to exist as between the State
applying to intervene and the parties to the case.1420
The 1978 Rules (still in force) seemed thus to favour the
view that intervention should be based on consent. But this
creeping amendment of the Statute met with critics expressed
both in the judges’ opinions1421and in doctrinal writings.1422To
be sure, ‘the language is open-ended and non-
committal’.1423However, the principle of effet utile requires ‘that a
provision of this sort [ . . . ] should [not] be devoid of purport or
effect’.1424
Within this context, Nicaragua’s application for permission to
intervene in the Land, Island and Maritime Frontier Dispute (El Salvador I
Honduras) was the first when the Court had to take an
unambiguous, decisive position on whether intervention is
1420This revision seems to have been prompted by Fiji’s
request for intervention in the Nuclear Tests case. As H. Thirlway
reminds, ‘[t]he cases came to a premature end before the
Court was called upon to decide the point, but some of the
judges felt strongly enough to indicate, in declarations
attached to an Order of the Court, that they would have
dismissed the intervention for lack of jurisdiction’ ( 2016, p. 181).
1421Among the most vigorous and well documented critics is
that by Judge Oda (Libya/Malta (Application by Italy to Intervene),
supra note 7, Dissenting Opinion of Judge Oda, pp. 93-99, paras
8-19). For other references, see Miron and Chinkin ( 2018), pp.
1356-1357).
1422See references in Miron and Chinkin (2018), p. 1357,
footnotes 163-165.
1423Rosenne (2005), p. 1468.
1424Corfu Channel (United Kingdom v. Albania), Merits, Judgment, ICJ Reports 1949, p. 24; see also
Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994, p. 25, para 51.
384 A. Miron
based on consensual jurisdiction (or as the Chamber put it in
its judgment it had to resolve ‘the vexed question of the “valid
link of jurisdiction”’).1425The Chamber boldly set aside the
requirement of a jurisdictional link, despite its express
mentioning in the Rules of the Court:
[P]rocedures for a third State to intervene in a case are
provided in Articles 62 and 63 of the Court’s Statute. The
competence of the Court in this matter of intervention is
not, like its competence to hear and determine the
dispute referred to it, derived from the consent of the
parties to the case, but from the consent given by them,
in becoming parties to the Court’s Statute, to the Court’s
exercise of its powers conferred by the Statute. [...] The
Court has the competence to permit an intervention even
though it be opposed by one or both of the parties to the
case.1426
The Chamber’s Judgment on the admissibility of Nicaragua’s
application for permission to intervene brings three important
clarifications. To sum up:
- the basis of jurisdiction is not States’ consent, but the
Statute; thus, intervention is a case of statutory jurisdiction;
- the consent of the Parties to the dispute is not required in
order for the application to be admitted; consequently, their
objection to intervention is therefore indecisive for the faith
of the application;
- this is true both for intervention under Article 62 and Article
63.
Somehow astonished by its own audacity, the Court
immediately tempered the statutory jurisdiction by a series of
nuances, which gave rise to much confusion on the nature and
scope of intervention. First, according to the Chamber,
statutory jurisdiction is not entirely disconnected from the
principle of consent. On the contrary, the Court insists that the
States’ consent was given when they became parties to the
Statute, and that ‘acceptance of the Statute entails acceptance

supra note 1,p. 133, para 94. The phrase ‘valid jurisdictional link’
is a particularity of intervention proceedings. The phrase as
such
1426was cornered in Tunisia/Libya (Application by Malta to
Intervene), supra note 7, p. 20, para 36. 36El Salvador/ Honduras
(Application by Nicaragua to Intervene), supra note 1, p. 133,
para 90; see also ibid., para 96.
Intervention 385
of the competence conferred on the Court by Article 62’.1427In
case of intervention, there is
therefore presumption of consent. This reasoning entails a
large part of fiction, considering how unclear the Statute is in
relation to intervention. It is only after clarification by the Court
that States can take the full measure of their undertakings. As
such, this nuance does not trigger practical consequences, but
it is however telling of the Court’s prudence in establishing
statutory jurisdiction.
More troublesome is the Chamber’s creation of a new
category of intervention, namely intervention as a party, based
on parties’ consent.1428This newly-minted taxonomy appears in
paragraph 99 of the Judgment on Intervention, and, though
regularly reaffirmed, it has never been clarified ever
since.1429This may be the last vestige of the Court’s swaying
between consensual jurisdiction and statutory jurisdiction with
regards to intervention. Regrettably, it is one that caused
much confusion on the status of the intervener and on the
legal effect of the Court’s judgment.
142737Ibid. In the same vein: ‘the competence of the Court or of

the Tribunal in these matters does not derive from the consent
of the parties to the case to hear and determine the dispute,
but from the consent given by them, in becoming parties to
the Statute, to the exercise by the Court, or by the Tribunal,
the powers conferred upon it by the Statute’ (Torres Bernárdez
(2006), p. 37).
supra note 1, pp. 134-135, para 99.
1429See also Sect. 4below.
386 A. Miron
2.3 The Court’s Margin of Discretion for
Appreciating the Admissibility of a Request for
Intervention
The difference between jurisdiction and admissibility has not

always been clearly articulated. However, in the past years,
the Court made an effort to clarify it. An objection to
admissibility ‘consists in the contention that there exists a legal
reason, even when there is jurisdiction, why the Court should
decline to hear the case, or more usually, a specific claim
therein’.1430In Djibouti v. France, the Court further clarified the fact
that ‘in determining the scope of the consent expressed by one
of the parties, the Court pronounces on its jurisdiction and not
on the admissibility of the application’.1431Thus, the assessment
of jurisdiction aims at establishing the existence and scope of
the consent of the parties. In the case of intervention, their
ratification of the Statute of the Court disposes of the
matter.1432However, for statutory jurisdiction, the Court has
been less keen on consolidating this distinction. For instance,
in case of requests for interpretation, the Court considered the
conditions in Article 60 of the Statute under the angle of both
jurisdiction and admissibility,1433whereas in analysing the
conditions set out in Articles 62 or 63 of the Statute, the Court
pronounces solely upon the admissibility of the requests. 1434
This insistence upon the admissibility of the requests to
intervene permitted the Court to disconnect intervention from
States’ consent. This is true not only for the existence of a
‘jurisdictional link’,1435but also for the parties’ acceptance of or
objection to a particular application.
1430 Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia
beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 17 march 2016, para 48, quoting Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections,
Judgment, ICJ Reports 2008, p. 456, para 120; in the same sense, see Oil Platforms (Islamic Republic of
Iran v. United States of America), Merits, Judgment, ICJ Reports 2003, p. 177, para 29.
1431 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment,
ICJ Reports 2008, p. 200, para 48.
1432See references in footnote 37 above.
1433Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of
1434Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment, ICJ Reports 2013,
1435pp. 295-304, paras 31-57.
Intervention 387
The proceedings on admissibility of intervention allow the
parties to express their views as to the fulfilment of statutory
conditions, but they do not give them a right to decide of the
matter. In fact, the Court departs quite often from the parties’
subjective appreciations. Thus, in the Nicaragua v. United States
case—concerning intervention under Article 63—neither
Nicaragua nor the United States had strong objections to
intervention by El Salvador. Still, the Court considered the
application to be inadmissible. In the Territorial and Maritime Dispute
case, both Nicaragua and Colombia ‘recognize[d] the existence
of Costa Rica’s interest of a legal nature in at least some areas
claimed by the Parties to the main proceedings’.1436The Court
nonetheless rejected the application.
For sure, the Court’s margin of appreciation is objectively
different under Articles 62 and 63 because the respective
conditions for intervention established by these provisions are
different. ‘Article 62, paragraph 2, according to which “[it] shall
be for the Court to decide upon this request”, is markedly
different from Article 63, paragraph 2, which clearly gives
certain States “the right to intervene in the proceedings” in
respect of the interpretation of a convention to which they are
parties’.1437The conditions for intervention under Article 63
being less stringent, this type of intervention should be more
easily admitted. As a matter of terminology, the distinction
between, on the one hand, ‘the application for permission to
intervene’ under Article 62 and, on the other hand, ‘the
declaration of intervention' under Article 63 accounts for this
difference of conditions.1438Moreover, while Article 62,
143644Even if Article 84 of the Rules uses a distinct terminology

—‘whether an application for permission to intervene under
Article 62 of the Statute should be granted, and whether an
intervention under Article 63 of the Statute is admissible', there is
no difference in the nature of the exam made by the Court.
143745See Sect. 2.2above.
supra note 3, p. 367, para 65. Nicaragua v. Colombia (Application by
47
Honduras to Intervene), supra note 3, p. 434, para 36. 48This

distinction is maintained in all the relevant articles of the Rules
388 A. Miron
paragraph 2 makes clear that ‘[i]t shall be for the Court to
decide upon this request’, there is no such mention in Article
63. However, such differences do not annihilate the Court's
power to decide on the admissibility of the requests to intervene. Consequently,
‘the fact that intervention under Article 63 of the Statute is of
right is not sufficient for the submission of a “declaration” to
that end to confer ipso facto on the declarant State the status of
intervener’.14391440The very fact that the Court did not allow El
Salvador’s intervention under Article 63 in Nicaragua v. United
States50shows that the Court will determine in each case the
admissibility of the request. Admission or rejection of
intervention is then decided by the Court by a judgment or an
order. This is all but logical: intervention is no more founded
on the subjective appreciation of the would-be intervener than
it is on that of the parties.
Even downgraded, opposition to intervention by the parties,
expressed under the form of a negative conclusion as to the
fulfilment of the objective requirements, does nonetheless
retain some relevance: ‘opposition [to an intervention] of the
parties to a case is, though very important, no more than one
element to be taken into account by the Court’.1441It remains
unclear however on what bases and to what extent the parties’
attitude should influence the Court’s assessment of the
admissibility of the request for intervention. Apart from the fact
that the Rules of the Court reserve a different procedural
treatment to unopposed applications,1442it must also be noted
that, to the exception of Nicaragua’s application in El
Salvador/Honduras, in the other cases when the Court declared
admissible applications for permission to intervene, there was
no objection from the Parties to the dispute.1443Though not
(see Articles 82-85).
1439Whaling (Declaration of Intervention by New Zealand), supra
note 7, p. 5, para 8.
supra note 1, p. 133, para 90, quoting Libya/Malta (Application by
Italy to Intervene), supra note 7, p. 28, para 46.
1442See Article 84, paragraph 2 of the Rules; see also note 6
above.
1443The interventions admitted under Article 62 were: Land and
Intervention 389
decisive, the absence of an objection from the parties to the
main case certainly facilitates the acceptance of
intervention.1444
However, this raises a question as to whether the Court has
a faculty not to allow intervention, even when the statutory
conditions are met?1445Some of its pronouncements tend to
suggest that admission of intervention does not solely rest on
the objective appreciation of the statutory conditions. To found
its decision, the Court also refers to the principle of the sound
administration of justice:
the Court ‘does not consider paragraph 2 [of Article 62]
to confer upon it any general discretion to accept or
reject a request for permission to intervene for reasons
simply of policy’ [...]. It is for the Court, responsible for
safeguarding the proper administration of justice, to
decide whether the condition laid down by Article 62,
paragraph 1, has been fulfilled.1446
Maritime Boundary between Cameroon und Nigeria, Application by Equatorial Guinea to Intervene,
pp. 1033-1034, paras 9-10;
Order of 21 October 1999, ICJ Reports 1999,
Jurisdictional Immunities (Application by Greece to Intervene), supra note
7, p. 496, para 6. New Zealand’s intervention under Article 63
in the Whaling case was not objected to either by Australia or
Japan (Whaling (Declaration of Intervention by New Zealand), supra
note 7, p. 8, paras 16-17 and p. 9, para 19).
1444Criticizing the influence upon the Court of the attitude of
the parties, see Nicaragua v. Colombia (Application by Honduras to
Intervene), supra note 3, Dissenting Opinion of Judge Donoghue,
pp. 490-491, para 56.
1445In the same vein, see also Palchetti (2002), p. 152.
1446Nicaragua v. Colombia (Application by Honduras to Intervene),
supra note 3, p. 434, para 36, quoting Tunisia/Libya (Application by
Malta to Intervene), supra note 7, p. 12, para 17. See also
Nicaragua v. Colombia (Application by Costa Rica to Intervene), supra
note 3, p. 358, para 25.
390 A. Miron
The principle of sound administration of justice is essentially
procedural in scope.1447The reference to it may be understood
as a confirmation of the fact that the Court admits or rejects
intervention not only on admissibility grounds, and thus gives
weight to the complaints according to which, when it comes to
intervention, the Court exercises a creeping discretionary
power. As Judge Abraham put it,
It is one thing, however, to say that it falls to the Court to
determine whether the condition is met, but it would be
another thing to say that, even if it is met, the Court
could still refuse to allow the intervention on a
discretionary basis. [...] From that point of view, I do not
see how the Court’s power can be termed ‘discretionary’
(policy considerations do not enter into it); the third State
has a right to intervene so long as it demonstrates that
the conditions (or condition) for the exercise of that right
are (is) met.1448
The reference to the sound administration of justice can
only be understood if it is accepted that the main function of
intervention is the informative, and not the protective one. The
main purpose of intervention would then indeed be the Court’s
being able to decide a case on the basis of all available
information, and not the putative right of a third State to
protect its interests. Accordingly, the Court can best exercise
its jurisdiction on the merits if informed of aspects of law and
fact by the would-be intervener. The right of States to
intervene under Article 62 has mutated into a right for the
Court to be fully informed of the all relevant aspects of law and
fact, even the peripheral one.
In this respect, the preliminary proceedings on the
admissibility of intervention are sometimes enough to fulfil that
purpose. The Court considers at their outset that it is
sufficiently informed of the third States’ interests possibly
affected, and no longer requires their assistance during the
merits phase. This is the puzzling conclusion which can be
drawn from the treatment reserved to Costa Rica’s request for
1447See Kolb (2013), pp. 1169-1180; see also Miron (2016), p.

374.
supra note 3, Dissenting Opinion of Judge Abraham, p. 450, para
12. See also Libya/Malta (Application by Italy to Intervene), supra
note 7, p. 12, paras 17-18.
Intervention 391
intervention:
The evidence required from the State seeking to
intervene cannot be described as restricted or summary
at [the admissibility] stage of the proceedings, because,
essentially, the State must establish the existence of an
interest of a legal nature which may be affected by the
decision of the Court. [...] This does not prevent the
Court, if it rejects the application for permission to
intervene, from taking note of the 1449
information provided to
it at this stage of the proceedings.
Thus, though clearly upheld in theory, the difference
between the objective appreciation of statutory conditions and
the existence of a discretionary power is obscured in practice
by the ambiguity of the statutory conditions for intervention,
which the Court has done little if anything to dispel.

supra note 3, p. 363, paras 49-51.
392 A. Miron
3 The Substantive Conditions for the Admissibility
of Intervention
Article 63 only requires from the would-be intervener to be a

party to the convention whose construction is in question in
the principal case. These two preliminary conditions can easily
be assessed on an objective basis and their assessment has
not given rise to any debate. By contrast, Article 62 of the
Statute requires from the would-be intervener to establish ‘an
interest of a legal nature which may be affected by the
decision’ in the main case. This is the only preliminary
condition set out in the Statute, but being a very vague one, it
is also open to multiple interpretations. Nicaragua’s cases
focused on this aspect, but little light has come out of them
(Sect. 3.1). In addition, the Rules and the Court’s case-law
provide for supplementary requirements. They mainly relate to
the object of the envisaged intervention and aim at keeping
intervention, as an incidental proceeding, within the bounds of
the main case. These conditions apply equally to intervention
under Articles 62 and 63 of the Statute (Sect.3.2).
3.1 The Strategy of Avoidance in Defining the Concept

of ‘Interest of a Legal Nature Which May Be Affected’
The Court’s case-law reveals its reluctance for defining both

the concept of interest a legal nature and the threshold at
which this interest might be affected. In fact, at present, it is
even difficult to assess whether these are two cumulative
conditions for the admissibility of intervention or rather a single
one. The Court treats them together, as if they were a single
condition, and this (absence of) methodology is puzzling.
Indeed, on the conceptual level, the first element should be
decided on the basis of objective parameters, amenable for a
definition in general terms, while the second should be purely
circumstantial, a question of fact, depending on the particular
circumstances of a case. The Court nonetheless combines
arguments of fact and law in assessing the two aspects. The
Intervention 393
decisions on intervention in Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras), on the one hand, and in Territorial and Maritime
Dispute (Nicaragua v. Colombia), account for this strategy of
avoidance of the Court.
394 A. Miron
3.1.1 The Court’s Refusal to Positively Define the Interest of a Legal
Nature
With this reservation in mind, it appears that the interest of a

legal nature is defined in a negative way, by distinguishing it
from germane concepts, such as legal right or legal claim. In
its older decisions, the Court distinguished the legal interest for
the purposes of Article 62 from the legal right—60a position all the
more logical that the Court maintains it cannot pronounce on
the legal rights of the third states, be they interveners or not 61:
In order to be permitted to intervene, a State does not
have to show that it has rights which need to be
protected, but merely an interest of a legal nature which
may be affected by the decision in the case.1450145114521453
However, the Court provided no criteria for distinguishing
these two germane concepts, though it would have been all
the more useful that, in other cases, the Court used those
terms interchangeably.63The adjective ‘legal’ suggests that this
interest is protected under international law. The State seeking
to intervene must thus define its interests by reference to rules
1450This difficult distinction goes beyond the question of

intervention in contentious proceedings. It was for instance
one of the touchstones of codification of the law of
responsibility (see Nolte 2002).
1451See Sect.3.2below.
1453This is particularly the case in relation to standing (in
French: intérêt à agir): see South West Africa, Second Phase, Judgment, ICJ Reports 1966,
pp. 18-19, paras 4-8 and p. 22, para 14. Later, the Court
abandoned this restrictive approach, and no longer requires
from States to prove the existence of a subjective right in
order to be recognize their standing: ‘All the other States
parties have a common interest in compliance with these obligations
by the State in whose territory the alleged offender is present.
That common interest implies that the obligations in question
are owed by any State party to all the other States parties to
the Convention. All the States parties ‘have a legal interest' in the
protection of the rights involved (Barcelona Traction, Light and Power Company,
Limited (Belgium v. Spain), Second Phase, Judgment, ICJ Reports 1970, p. 32, para 33).
These obligations may be defined as ‘obligations erga omnes partes' in
the sense that each State party has an interest in compliance
with them in any given case' (Questions relating to the Obligation to Prosecute or
Extradite (Belgium v. Senegal), Judgment, ICJ Reports 2012, p. 68, para 449—italics
added).
Intervention 395
of international law. At the same time, it does not have to
prove in a definitive manner their existence and scope (in
which case, the mere interests would become legal rights).
Thus, Charles de Visscher defined the legal interest as
entitlement:
Invoquer un interet juridique c’est se reclamer a des fins
juridiques d’un titre susceptible d’atteindre de telles fins,
sans que le bien-fonde en droit de ce titre s’en trouve
pour autant
64
prejuge.
396 A. Miron
From this perspective, the ‘legal claims’ amount to ‘interests’
for the purposes of Article 62, providing that their validity or
the soundness of their merits remains to be
ascertained.14541455In its more recent decisions, the Court
embraced this point of view. This is particularly clear in the
Territorial and Maritime Dispute case:
The State seeking to intervene as a non-party therefore
does not have to establish that one of its rights may be
affected; it is sufficient for that State to establish that its
interest of a legal nature may be affected. Article 62
requires the interest relied upon by the State seeking to intervene to be of a legal
nature, in the sense that this interest has to be the object of a real and concrete claim of that
State, based on law, as opposed to a claim of a purely
political, economic or strategic nature.14561457
If the legal interest is framed as a claim based on law, then the
determination of general points of law is not enough for
purposes of Article 62. The interest under Article 62 cannot be
a general interest.61In its order on intervention by Malta in
Tunisia/Libya excluded that the interest could rest on the
argument that ‘the resulting judgment might form an
important precedent as a subsidiary means for the
ascertainment of the law’.1458This is a reasonable approach, on
1454De Visscher (1966), p. 63.
1455In the same vein, Palchetti explains that ‘ [a] state
seeking to intervene under Article 62 has to specify the content
of its legal interest with reference to a given claim. In the
cases so far submitted to the Court the interest has been
mainly identified with specific rights or titles that the states
seeking to intervene claimed to possess against the parties to
the dispute’ (2002, p. 144).
supra note 3, pp. 358-359, para 26 (italics added). See also
Nicaragua v. Colombia (Application by Honduras to Intervene), supra
note 3, p. 434, para 37. Judge Donoghue did not entirely
subscribe to this understanding: ‘The Court today appears to
suggest that an “interest of a legal nature” must be framed as
a “claim” of a legal right. The focus on claims may flow from a
body of jurisprudence derived from maritime claims.
Nonetheless, although a generalized interest in the content of
international law has been found to be insufficient to comprise
an “interest of a legal nature”, I do not rule out the possibility
of a third State demonstrating an “interest of a legal nature”
without framing it as a “claim” of a legal right’ (ibid., Dissenting
Opinion of Judge Donoghue, p. 476, fn 1).
1457See also Queneudec (1995), pp. 419-420. This distinguishes
the legal interest for the purposes of intervention from
standing based on the common interest for the enforcement of erga
omnes obligations (see note 63 above).
1458Tunisia/Libya (Application by Malta to Intervene), supra note 7,
Intervention 397
at least two grounds:
- First, a contrary position would virtually open the gate of
intervention to all States (since they all have an interest to
the determination of the rule of law opposable to them);
- Second, intervention under Article 63 of the Statute is the
best vehicle for third- states to develop points of law before
the Court. Considering however that Article 63 is restricted
to the construction of multilateral conventions—a vestige of
an epoch where international law was considered to be the
exclusive product of the will of the States—it cannot be
invoked in respect to the determination of rules of
customary law. This limitation in Article 63 of the Statute
obliges States to mould their application to fit the
requirements of Article 63.1459
To overcome these paradoxes, some authors propose a
distinction between ‘on the one hand, an interest of “general
nature” to the interpretation of conventions or rules of general
international law and, on the other hand, an interest of a legal
nature (as defined above) where the judgment may have a
direct bearing’.1460Indeed, as P. Palchetti underlined, ‘it does
not appear reasonable that views about general points of law
in issue before the Court might be presented only by those
p. 11, para 16 and p. 17, para 29.

1459See Greece’s intervention: ‘ [I]n its written observations,
Greece also expresses its wish to inform the Court “on Greece’s
approach to the issue of State immunity, and to developments
in that regard in recent years”; and whereas Greece does not
present this element as indicating the existence of an interest
of a legal nature, but rather as providing context to its
Application for intervention’ (Jurisdictional Immunities (Application by
Greece to Intervene), supra note 7, p. 499, para 18). However,
most of Greece’s observation as an intervenor related to
ascertaining the existence of some rules of customary law (like
the existence of a private right to compensation for human
rights violations and the exception to State immunity in case of
violations of norms of jus cogens: see Written Statement of the Hellenic
Republic, 3 August 2011).
1460Forlati (2014), p. 200.
398 A. Miron
states which can claim a specific interest in the dispute. This
the more so since there are cases in which it is clear from the
outset that the actual point in issue before the Court is
represented not so much by the solution of a specific dispute
as by the Court’s pronouncement about the questions of law
involved’.1461Again, the informative function of intervention
overcomes the protective one.
The application in concreto of this framework proved however
highly unreliable. In the Territorial and Maritime Dispute case,
Honduras defined its legal interest by reference to the bilateral
treaty concluded with Colombia, which recognized certain
maritime rights to it within the area to be delimited. However,
the Court did not consider this entitlement to be enough to
allow intervention, on account that this treaty was res inter alios
acta to Nicaragua and could not constitute the basis of the
Court’s decision.1462
Costa Rica defined its entitlement in the area to be delimited
by reference to general international law, for which no issue of
opposability to the parties could arise. But Costa Rica also
insisted that its interest went beyond the general interest for
the determination of the legal rules (which in 2011 were pretty
stabilized after the 2009 judgment in the Black Sea case) and
that it had a more concrete interest in the application of those
general rules to an area where it had entitlements. The
argument was not accepted: without denying or positively
acknowledging the existence of Costa Rican interests, the
Court chose to decide on the basis of the requirement that the
interest must be at risk of being affected.1463And on this point,
it returned to a very high threshold, which it had applied in the
1980-1990.
1461Palchetti (2002), p. 162. See also Wolfrum (1998), p. 428.

1462 Nicaragua v. Colombia (Application by Honduras to Intervene),
12
supra note 3, p. 444, paras 72-73.

1463Nicamgua v. Colombia (Application by Costa Rica to Intervene),
Intervention 399
3.1.2 A Sophistic Appreciation of the Risk of Being Affected
The interests of the third-State may be affected if they are part

of the subject-matter of the dispute submitted by the parties
(in which case, the intervener is akin though not identical to
the indispensable party according to the Monetary Gold principle).
At the same time, the interest cannot be affected if the third-
State is protected by the relative effect of the res judicata. These
are the parameters of the sophism used by the Court to
determine the risk. It must be noted that they are general and
abstract, whereas one would expect the risk for the interest to
be affected to be determined on a circumstantial, factual basis.
In El Salvador/Honduras, the Court insisted upon the difference
between the risk for the interest to be affected and the Monetary
Gold hypothesis,
1464
establishing that the threshold for the first
one is lower than that of the second:
a State which considers that its legal interest may be
affected by a decision in a case has the choice, to
intervene or not to intervene; and if it does not,
proceedings may continue, and that State is protected by
Article 59 of the Statute (I.C.J. Reports 1984, p. 26, para. 42).
The Court’s reply in the Monetary Gold case to the argument
addressed to it was as follows:
“Albania has not submitted a request to the Court to be
permitted to intervene. In the present case, Albania’s
legal interests would not only be affected by a decision,
but would form the very subject-matter of the decision.
In such a case, the Statute cannot be regarded, by
implication, as authorizing proceedings to be continued in
the absence of Albania.” (Loc. cit., p. 32.).
If in the present case the legal interests of Nicaragua
would form part of “the very subject-matter of the
1464A preliminary question would be to assess whether the
Monetary Gold principle can be applied outside the situations where
the subject-matter of the dispute is a question of responsibility
of a State absent from proceedings ‘as a precondition for ruling
on the responsibility of the Respondent’ (Obligations concerning Negotiations
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v.
United Kingdom), Judgment of 5 October 2016, Separate opinion of Judge
Tomka, para 38). In El Salvador/Honduras, no question of responsi-
bility arose and the reference to the Monetary Gold principle was
not obvious. In the Jurisdictional Immunities case, where questions of
responsibility arose, Germany refrained from questioning the
legality of the Greek judicial decisions and the Court
considered that different sets of rules applied to their
enforcement (Jurisdictional Immunities (Application by Greece to
Intervene), supra note 7, p. 147, para 114).
400 A. Miron
decision”, as Nicaragua has suggested, this would
doubtless justify an intervention by Nicaragua under
Article 621465
of the Statute, which lays down a less stringent
criterion.
1465 El Salvador/Honduras (Application by Nicaragua to Intervene),

15
supra note 1, p. 116, paras 54 and 56.

Intervention 401
The Court thus distinguished between the legal interest
under Article 62 and the subject-matter of the decision. In the
same vein, the Court clarified that:
the interest of a legal nature to be shown by a State
seeking to intervene under Article 62 is not limited to the
dispositif alone of a judgment. It may also relate to the
reasons which constitute the necessary steps to the
dispositif?6
This wording is doubly curious: first, the Court makes
reference to the dispositif of the judgment on the merits. But this
is a chronological impossibility, since the application for
permission to intervene predates the judgment. A reference to
the claims of the parties (the petita) to which the dispositif
responds in principle would be more apposite. Moreover, the
Court uses the reference to the dispositif in order to define the
interest, but it is more probable for the dispositif to affect the
interest rather than define it. As Judge Donoghue put it in her
dissent in the Nicaragua v. Colombia case:
[T]he requirement that the third State’s interest of a legal
nature “may be affected” does not require the applicant
to predict the decision of the Court on the merits, but
necessarily requires the would-be intervener “to show in
what way that interest may be affected”
[...]. This suggests that it must persuade the Court of a
sufficient connection between the interest that it asserts
and an eventual decision relating to the subject-matter of
the case. What remains unclear, however, is precisely
what sort of nexus is required to satisfy the requirement
that the interest of a legal nature “may be affected”. 77
The interest in Article 62 is therefore linked to the subject-

matter, without being identical to it. This contrast may be
subtle, but remains necessary not to enlarge too much the
scope of the Monetary Gold principle and thus unduly obstruct the
jurisdiction of the Court. It was also necessary in order not to
restrict intervention under Article 62 to the hypothesis of the
indispensable intervener.
The real difficulty in establishing that the interest is at risk of
being affected stems from the fact that the Court denies it
whenever third-States’ interests are protected by Article 59 of
the Statute (the relative effect of res judicata). This excessively
formalistic threshold was restated in Nicaragua v. Colombia:
78
Nicaragua v. Colombia (Application by Costa Rica to Intervene), supra
[T]o succeed with its request, Costa Rica must show that
note 3, p. 372, para 87—
italics added.
402 A. Miron
of a legal nature in the maritime area bordering
its interest
the area in dispute between Nicaragua and Colombia needs
a protection that is not provided by the relative effect of decisions of the Court under Article 59
of the Statute.78
14661467

supra note 3, p. 434, para 38, quoting Sovereignty over Pulau Ligitan and Pulau
Sipadan (Indonesia/Malaysia), Application by the Philippines for Permission to Intervene, Judgment,
ICJ Reports 2001, p. 596, para 47 (hereinafter ‘ Indonesia/Malaysia
(Application by the Philippines to Intervene)’). See also Nicaragua
v. Colombia (Application by Costa Rica to Intervene), supra note 3,
p. 359, para 26.
supra note 3, Dissenting Opinion of Judge Donoghue, p. 476,
para 16.
Intervention 403
In this case, the Court abandoned the precedent established
in relation to Equatorial Guinea’s intervention Cameroun v. Nigeria
case, where it considered that ‘in the case of maritime
delimitations where the maritime areas of several States are
involved, the protection afforded by Article 59 of the Statute
may not always be sufficient’ .1468While the Court limited the
scope of the judgment on the merits to an area where the
interests of all the third States, interveners or not, were
unaffected, that possibility had not been an obstacle for the
admission of intervention.1469Indeed, the Court’s response to
Honduras’ and Costa Rica’s application for permission to
intervene marks a return to the conservative, extremely
prudential position it had already adopted in the El
Salvador/Honduras case, where the existence of overlapping claims
in the area to be delimited was not enough to establish that
the interest of a third State might be affected.1470One may
wonder if there is any possibility left for third-States to
intervene in maritime delimitation cases, after the 2011
judgments in Nicaragua v. Colombia.
3.2 Conditions as to the Object of Intervention
The 1978 revision of the Rules introduced further requirements

in respect to intervention.1471An application for permission to
intervene under Article 62 of the Statute ‘shall set out [...] the
precise object of the intervention’ (Article 81, paragraph 2b of
the Rules), whereas a declaration under Article 63 ‘shall
contain [...] b) identification of the particular provisions of the
convention the construction of which it considers to be in
question; c) a statement of the construction of those
146819Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial
Guinea intervening), Judgment, ICJReports 2002, p. 421, para 238.
1469See the critics by Judge Donoghue in its Dissenting
Opinion in Nicaragua v. Colombia (Application by Costa Rica to
Intervene), supra note 3, pp. 480-481, para 22-23.
supra note 1, p. 124, para 77 quoted in Nicaragua v. Colombia
(Application by Costa Rica to Intervene), supra note 3, p. 371,
para 85.
1471Miron and Chinkin (2018), pp. 1345-1346.
404 A. Miron
provisions for which it contends’ (Article 82, paragraphs 2 b)
and 2c). Both requirements aim at greater specificity of the
request for intervention. Logically, these two should not be
requirements for the admissibility of the application to
intervene, since they address the limits of intervention itself
and the legal consequences which the Court could trigger in
the judgment on the merits. As such, they suppose the
application is admissible. The Court nonetheless addresses
them at the preliminary stage of the admissibility. Accordingly,
the scope of intervention is clearly articulated and bounded by
the judgment on admissibility. Thus, in El Salvador/Honduras case,
the Chamber insisted that Nicaragua ‘should be permitted to
intervene but solely in respect of the Chamber’s consideration
of the legal regime of the maritime spaces within the Gulf of
Fonseca, and to participate in the proceedings in the case in
accordance with Article 85 of the Rules of Court.’ 83
This shows again the prudential approach in respect to
intervention. By the addition of these requirements in the
Rules, the Court seeks to control upstream that intervention
remains within the bounds of the main case. From this point of
view, these requirements reflect the incidental nature of
intervention.
Leaving aside the latest decisions in Nicaragua v. Colombia
which tend to confuse the purposes of intervention—vague
and open-ended—84with the ‘precise object’ requirement,85the
other Nicaragua’s cases brought nonetheless useful
clarifications in this respect. They can be summed up as
follows:
3.2.1 Intervention Must Not Introduce a New Dispute
The Chamber in El Salvador Honduras made clear in its judgment

on the admissibility of intervention by Nicaragua that these
proceeding must not introduce a new dispute. This would be at
odds with their incidental nature:
An incidental proceeding cannot be one which transforms
that case into a different case with different parties.86
This would also run contrary to the functions of

Intervention 405
intervention:
Intervention under Article 62 of the Statute is for the
purpose of protecting a State’s “interest of a legal nature”
that might be affected by a decision in an existing case
already established between other States, namely the
parties to the case. It is not intended to enable a third
State to tack on a new case, to become a new party, and
so have its own claims adjudicated by the Court. A case
with a new party, and new issues to be decided, would
be a new case. The difference between intervention
under Article 62, and the joining of a new party to a case,
is not only a difference in degree; it is a difference in
kind. As the Court observed in 1984, “There is nothing in
Article 62 to suggest that it was intended as an
alternative means of bringing an additional dispute as a
case before the Court - a matter dealt with in Article 40
of the Statute - or as a method of asserting the individual
rights of a State not a party to the case”. 87
The logical consequence stemming from the prohibition to

introduce a new dispute is that ‘there is [no] requirement for
the definition of a dispute in prior negotiations before an
application can be made for permission to intervene’. 8814721473
3.2.2 Intervention Must Not Seek to Adjudge Claims of the Intervener
In the same case, the Chamber endorsed the Court’s finding in

the 1984 Judgment on the Application of Italy for permission to intervene in
the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta),
according to which the Application ‘could not be granted
because, inter alia, to give effect to it “the Court would be
called upon [...] to determine a dispute, or some part of a
dispute, between Italy and one or both of the principal
1472 El Salvador/ Honduras (Application by Nicaragua to Intervene),

83
supra note 1, p. 136, para 103. See also p. 125, para 79.
84
See above, Introduction.
85
As for instance: ‘the precise object of the request to intervene
certainly consists in informing the Court of the interest of a legal
nature’ (Nicaragua v. Colombia (Application by Costa Rica to
Intervene), supra note 3, p. 360, para 33; see also p. 363, para
49).
86
El Salvador/ Honduras (Application by Nicaragua to Intervene), supra
note 1, p. 134, para 98. 87Ibid., pp. 132-133, para 97 quoting
Libya/Malta (Application by Italy to Intervene), supra note
1473 p. 23, para 37.
88
El Salvador/Honduras (Application by Nicaragua to Intervene), supra
note 1, pp. 113-114, para 51.
406 A. Miron
Parties”.’1474Put it differently, intervention must not seek to and
cannot result in adjudging claims of the intervener. The aim of
intervention is to protect the entitlements of the third State
and not to provide their definitive recognition nor to adjudge
them.1475
This limitation reflects the distinction between legal rights
and legal interests, defined as claims or
entitlements.147614771478Were the Court to make binding
determinations over that interest in its judgment on the merits,
the interest would then definitely mutate into a right/obligation
of the intervener and would make the judgment on the merits
binding on it. This would be unacceptable for intervention as a
non-party. However, it is not excluded for intervention as a
party (this is at least the conclusion which could be drawn
from the judgment on Honduras’ request to intervene:
[i]f it is permitted by the Court to become a party to the
proceedings, the intervening State may ask for rights of
its own to be recognized by the Court in its future
decision, which would be binding for that State in respect
of those aspects for which intervention was granted,
pursuant to Article 59 of the Statute. 92
There is thus a contradiction between the conditions for

admissibility of intervention in general, which precisely require
from States not to seek to adjudge claims, and the status of
intervener as a Party, which will precisely lead the Court to
adjudge claims. The only way to resolve this contradiction will
be to clearly distinguish between intervener and parties to the
case.
Moreover, intervention as a party is hard to reconcile with
the incidental nature of intervention
An incidental proceeding cannot be one which transforms
that case [already before the Court] into a different case
with different parties.
93
147489Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras: Nicaragua intervening),
Judgment, Merits, ICJ Reports 1992, p. 114, para 51 (hereinafter ‘El Salvador/Honduras (Merits)’)
quoting Libya/Malta (Application by Italy to Intervene), supra note 7, p. 20, para 31.
147590 See Palchetti (2002), pp. 148-149.
147691See Sect.3.1.1 above.
supra n. 3, p. 432, para 29.
supra n. 1, p. 134, para 98, emphasis added.
Intervention 407
4 The Effect of the Judgment on the Merits and the
Status of the Intervener
The status of the intervener is a question which has been

debated for long and whose answer remains yet to be clearly
articulated.1479Absent any indication in the Statute1480and the
Rules, the Chamber in El Salvador/Honduras, seised the first case of
intervention admitted under Article 62 of the Statute, it had
the cumbersome mission of clarifying, or rather establishing,
the effect of the judgment on the merits and the status of the
intervener. The Chamber relied on nuances, at the expense of
clarity. Curiously, it first determined the status (or statuses) of
the intervener, and only afterwards determined the effect of
the judgment upon it. Thus appeared the newly-minted
distinction between intervener as a party and intervener as a
1479See Lagrange (2005), pp. 65-70.
1480Some indications could however be found in the travaux
préparatoires.Indeed, as R. Wolfrum underlined: ‘Comparing article
62 of the Statute of the Permanent Court of International
Justice and the equivalent provision of the Statute of the
International Court of Justice (ICJ), one major difference
becomes evident. Whereas, under the Statute of the
Permanent Court of International Justice, the intervening State
intervenes ‘as a third party’, it does not do so under the
Statute of the International Court of Justice. These words were
deleted from the provision when, in 1945, a committee of
jurists prepared a draft statute for the International Court of
Justice. In assessing such a change, it should be noted that
the 1920 French version of the Statute of the Permanent Court
of International Justice did not contain these words and that,
accordingly, the present version of article 62 of the Statute of
the International Court of Justice reflects the French version of
Article 62 of the Statute of the Permanent Court of
International Justice. The report on the draft statute of the ICJ
to the San Francisco Conference stated that the deletion of the
words ‘as a third party’ were not intended to change the
meaning of Article 62 of the Statute.’ (Wolfrum1998, p. 434,
footnotes omitted).
408 A. Miron
non-party:
[A] State which is allowed to intervene in a case, does
not, by reason only of being an intervener, become also a
party to the case. It is true, conversely, that, provided
that there be the necessary consent by the parties to the
case, the intervener is not prevented by reason1481 of that
status from itself becoming a party to the case.
In fact, through this distinction, the Court sought to mitigate
its finding of no jurisdictional link,1482by considering that States
become parties to the proceedings only if there is consent to
the Court’s jurisdiction:
Those States are the “parties” to the proceedings, and
are bound by the Court’s eventual decision because they
have agreed to confer jurisdiction on the Court to decide
the case, the decision of the Court having binding force
as provided for in Article 59 of the Statute. Normally,
therefore, no other state may involve itself in the
proceedings without the consent of the original
Parties.1483
This distinction has been (un)successfully perpetuated ever
since. Successfully because the full Court recalled it inter alia in
Nicaragua v. Colombia: ‘the status of intervener as a party
requires, in any event, the existence of a basis of jurisdiction
as between the States concerned, the validity of which is
established by the Court at the time when it permits
intervention.’14841485Unsuccessfully because the Court has never
authorized intervention as a party (though Honduras sought
this status in Nicaragua v. Colombia).100 In his Dissenting Opinion in
that case, Judge Abraham considered this distinction highly
confusing
In reality, it follows from that Judgment and from the
1481 El Salvador ¡Honduras (Application by Nicaragua to Intervene),

supra note 1, pp. 134-135, para 99.
1484"Nicaragua v. Colombia (Application by Honduras to Intervene),
supra note 3, p. 432, para 28 and Nicaragua v. Colombia (Application
by Costa Rica to Intervene), supra note 3, p. 361, para 38. See
also Indonesia/ Malaysia (Application by the Philippines to Intervene),
supra note 76, pp. 588-589, paras 31-36.
Intervention 409
Judgment on the merits delivered by the same Chamber
in the same case [El Salvador/Honduras, Nicaragua
intervening] [...] that a third State which is allowed to
intervene as a party does not acquire the status of
intervener on receiving that authorization, but purely and
simply that of a party. From that moment, the
proceedings are no longer between two parties, but
between three, and there is no intervener. In short, the
third State uses the application for permission to
intervene as a way to join the proceedings, not as an
intervener — which is the usual object of such an
application —, but as a party.1486
The perpetuation of this distinction is not only confusing,
but also damaging. It is because the Chamber distinguished
the intervener from the Parties that it also asserted the
absence of a binding effect of the judgment on the former.
Indeed, the Court confined the binding effect to the res judicata
hypothesis, and considered that Article 59 of the Statute
proscribes any such effect towards a non-party:
The terms on which intervention was granted, as stated
in paragraph 102 of the 1990 Judgment, were that
Nicaragua would not, as intervening State, become party
to the proceedings. The binding force of the present
Judgment for the Parties, as contemplated by Article 59
of the Statute of the Court, does1487not therefore extend
also to Nicaragua as intervener.
This conclusion could and has been criticized on more than
one account.1488First, it is pure fiction, as El Salvador/Honduras case
has shown. Having decided that the legal regime of the Gulf of
Fonseca is that of a condominium,1489meaning that the
sovereignty rests within the three riparian States, it is hardly
conceivable that this finding had no effect on Nicaragua (which

supra note 3, Dissenting Opinion of Judge Abraham, p. 452, para
18.
1487El Salvador/Honduras (Merits), supra note 89, p. 629, para 421. See
quote ibid., para 424.
1488See the critics by Judge Oda in its Declaration in El
Salvador/Honduras (Merits), supra note 89, pp. 619-620 and by Judge
ad hoc Torres-Bernardez in its Separate Opinion in ibid., pp. 730-
731, para 208.
1489El Salvador/Honduras (Merits), supra note 89, p. 616, para 432.
See also the conclusions of the Court in relation to the
enforcement by Italy of the decisions of the Greek courts
(Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports
2012, p. 155, para 139, point 3).
410 A. Miron
moreover was expressly referred to in the dispositif of the
judgment).1490
Second, the binding effect attaching to the Court’s decisions
cannot be reduced to the unique hypothesis of res judicata.
Indeed, as noted by judge Torres- Bernardez, ‘[intervention
under Article 63, for example, are non-party interventions and
nevertheless the intervening State is under the obligation set
forth in that Article’.1491Later the Court asserted the binding
effect of its orders prescribing provisional measures without
any textual basis in the Statute.1492The Statute of ITLOS
rightfully provides in Article 31, paragraph 2 that:
If a request to intervene is granted, the decision of the
Tribunal in respect of the dispute shall be binding upon
the intervening State Party in so far as it relates to
matters in respect of which that State Party intervened.
Finally, the absence of binding effect under Article 62 is
unduly unrighteous for the Parties themselves. Admittedly, ‘the
Court was careful not to adopt a position in which “it would be
admitting that the procedure of intervention under Article 62
would constitute an exception to the fundamental principles
underlying its jurisdiction, [like] the principles of reciprocity
and equality of States”.’1493However, the intervener enjoys
procedural rights1494and in practice intervention can also be
disruptive of the balance between the Parties, especially if the
intervener acts in the same interest as one of them.1495Still,
intervention comes at no risk for the third- State. Indeed,
intervention is something more than a highly sophisticated
1490105El Salvador/Honduras (Merits), supra note 89, p. 616, para 432.

1491El Salvador/ Honduras (Merits), supra note 89, Separate Opinion of
Judge ad hoc Torres- Bernardez, pp. 730-731, para 208.
1492107LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, pp. 501-506,
paras 98-109.
supra note 1, p. 133, para 99, Libya/Malta (Application by Italy to
Intervene), supra note 7, p. 22, para 35. In El Salvador/ Honduras, the
Chamber made clear that the intervener had no right to
appoint an ad hoc judge (ibid., pp. 135-136, para 102).
1494109Such as the right to file pleadings and the right to be
heard (both on issues of admissibility and on merits) (see
Articles 84, 85 and 86 of the Statute).
1495110On these aspects, see Miron (2016), pp. 390-391.
Intervention 411
form of amicus curiae.
Summing up, it cannot be denied that Nicaragua’s cases
brought a great contribution to the law on intervention. They
clarified some of its important characteristics, both under
Article 62 and 63 of the Statute. Among the most salient
points:
- intervention, as an incidental proceeding, is dependent on
the existence of a case on the merits;
- intervention is not based on the consent of the Parties (pre-
existent or ad hoc); it is a case of statutory jurisdiction;
- the admissibility of intervention is established by the Court
on an objective basis.
However, Nicaragua’s cases are also source of confusion.
They left some space to parties’ consent (or absence of
objection), without providing guidance as to its weight. This
leftover nourished the useless distinction between intervention
as a party and as a non-party, which is source of great
perplexity and complications and it is linked to the Court’s
denial of any binding effect of the judgment on the merits
towards the intervener. These obscurities can hardly be settled
by new judicial decisions. In this respect, a revision of the
Rules appears more desirable and more fruitful.
References
De Visscher C (1966) Aspects récents du droit procedural de la

Cour internationale de Justice. Pedone, Paris
Forlati S (2014) The International Court of Justice. An arbitral
tribunal or a judicial body? Springer, Heidelberg
Kolb R (2013) La Cour internationale de Justice. Pedone, Paris
Lagrange E (2005) Le tiers a l’instance devant les juridictions
internationales à vocation universelle (CIJ et TIDM). In:
Ruiz-Fabri H, Sorel J-M (eds) Le tiers a l’instance devant les
juridictions internationales. Pedone, Paris, pp 9-72
Miron A (2016) The working methods of the court. JIDS 7:371-
394
Miron A, Chinkin C (2018) Articles 62 et 63. In: Zimmermann A
et al (eds) Statute of the international court in commentary.
OUP, Oxford (forthcoming)
Nolte G (2002) From Dionisio Anzilotti to Roberto Ago: the
classical international law of state responsibility and the
traditional primacy of a bilateral conception of inter-state
412 A. Miron
relations. EJIL 13:1083-1098
Palchetti P (2002) Opening the International Court of Justice to
third States: intervention and beyond. Max Planck Yb UN
Law 6:139-181
Queneudec J-P (1995) La notion d’Etat interesse en droit
international. Collect Course Hague Acad Int Law 255:339-
462
court (1920-2005). Martinus Nijhoff Publishers, Leiden
Thirlway H (2016) The International Court of Justice. OUP,
Oxford
Torres Bernardez S (2006) Provisional measures and
interventions in maritime delimitation disputes. In: Lagoni R,
Vignes D (eds) Maritime delimitation. Nijhoff, Leiden, pp 33-
62
Wolfrum R (1998) Intervention in the proceedings before the
International Court of Justice and the international tribunal
for the law of the sea. In: Liber Amicorum Günther
Jaenicke. Beitrage zum ausländischen öffentlichen Recht
und Völkerrecht. Springer, Berlin, pp 427-442
Alina Miron Professor

of international law at the University of
Angers. Counsel and advocate in inter-State litigation.
Hugh Thirlway
Abstract A study of procedural issues relating to indication by

the ICJ of provisional measures (Article 41 of the Statute of
the International Court of Justice), that arose in the various
cases before the Court involving Nicaragua, (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States);
Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica. v.
Nicaragua); and Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica). These were: the Court’s power to act
proprio motu; the effect of measures, and their relationship with
the rights claimed; the concepts of ‘plausible’ rights and of
‘irreparable prejudice’; the impact of measures on third
parties; the modification of measures, and the role of
indications falling short of measures.
Contents
1 Introduction.................................................................................................................................... 398
2 The Court’s Power to Act Proprio Motu........................................................................................ 399
3 The Effect of Provisional Measures............................................................................................... 401
4 Relationship Between Measures Requested and Rights Claimed.................................................. 404
5 Plausible ‘Rights’........................................................................................................................... 406
6 Irreparable Prejudice...................................................................................................................... 407
7 Impact of Measures on Third Parties............................................................................................. 408
8 Modification of Provisional Measures........................................................................................... 409
9 Indications Falling Short of Measures........................................................................................... 410
References......................................................................................................................................... 411
H. Thirlway (*)
The Hague, 4
Netherlands e-mail: 1
3
414 H. Thirlway
hthirlway@hotmail.c
om
9_17
9
Order of 17 April 2013, ICJ Reports 2013, p. 184. The Court rendered a single
judgment on
16 December 2015 (hereinafter ‘Certain Activities; Construction of a Road
(Judgment)’). See
contribution by Sobenes E below.
415 H. Thirlway
1 Introduction
At the date of completion of the present text (December

2015), the Republic of Nicaragua had been a party to, or
concerned in,1a total of 13 contentious cases2before the
International Court of Justice, the earliest in I960. 3Four of
these have involved applications for the indication by the Court
of provisional measures under Article 41 of the Statute. 4In one
case (Border and Transborder Armed Actions (Nicaragua v. Honduras)), the
request made for such measures was withdrawn5(and the
proceedings in the case were eventually discontinued). The
Orders made by the Court in the remaining cases however
offer some points of interest from the standpoint of general
international law—specifically the procedural law of the
International Court of Justice; being by definition provisional
and temporary in effect, these Orders are not the place to seek
dicta on substantive questions. The relevant cases are: Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States)6;
Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua)1 and Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica),8the latter two cases were later joined. 9 In the !
case of the Land, Island and Maritime Frontier Dispute between El Salvador and Honduras, Nicaragua
appeared as an intervening State, but was not admitted as a party to the proceedings (see Land, Island
and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Application by
Nicaragua for Permission to Intervene, Judgment, ICJ Reports 1990, p. 92). As a non-party, Nicaragua
would not have been entitled to submit a request for provisional measures even if there had been a need
(in its view) for such measures: Article 31 of the ICJ Statute confers the power to indicate measures ‘to
preserve the rights of either party’ (emphasis added). Nicaragua’s participation in any advisory cases
before the Court is not here relevant, since provisional measures have never been indicated in advisory
proceedings (and probably cannot be). 3See the Chronological List of Cases of Nicaragua before the ICJ
at the beginning of this book. 4On this topic, see e.g. Thirlway (1994), Oda (1996), Frowein (2004),
Rosenne (2004), Palchetti (2008), Kempen and Zan (2009), Rylatt (2013) and Thirlway (2013a, b).
5
For the Request, see Border and Transborder Armed Actions (Nicaragua v. Honduras), Pleadings, Vol.
I, pp. 511-520; for the letter of withdrawal, see ibid., Vol. II, No. 63, pp. 265-266. 6Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional
Measures, Order of 10 May 1984, ICJ Reports 1984, p. 169 (hereinafter ‘Nicaragua v. United States
(Provisional Measures)’).
1
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional
Measures, Order of 8 March 2011, ICJ Reports 2011, p. 6; Order of 16 July 2013, ICJ Reports 2013, p.
230 and Order of 22 November 2013, ICJ Reports 2013, p. 354 (hereinafter ‘Certain Activities
8
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Provisional
9
judgment on
(Judgment)’). See
416 H. Thirlway
Measures, Order of 13 December 2013, ICJ Reports 2013, p. 398 (hereinafter ‘Construction of a Road
9
judgment on
(Judgment)’). See
Provisional Measures 417
2 The Court’s Power to Act Proprio Motu
An unusual feature of Nicaragua’s approach to the Court in the

case of Construction of a Road in Costa Rica along the San Juan River was the
efforts made by Nicaragua, at the very outset of the case, to
induce the Court to indicate provisional measures to restrain
Costa Rica’s activity, without formally making a request for
such measures under Article 73 of the Rules of Court.
Article 41 of the Court’s Statute simply states that ‘[t]he
Court shall have power to indicate, if it considers that
circumstances so require, any provisional measures which
ought to be taken to preserve the respective rights of either
party’. Whether this power is coupled with a duty—i.e.,
whether the Court is bound to consider, unasked, at each or
any stage of the proceedings the need for such preservation—
does not appear from this wording. The Rules of Court seem to
be drafted on the basis that the initiative will normally be taken
by the party that sees an imminent threat to its rights: articles
73 and 74 make provision for the submission and the handling
of a request of this kind. Only in article 75 does there follow
the provision that ‘[t[he Court may at any time decide to
examine proprio motu whether the circumstances of the case
require the indication of provisional measures [...]’ The need
for such an initiative may be expected to be infrequent, since
the absence of a request for measures may generally be taken
to imply that the situation does not cause concern in the eyes
of the party potentially affected. In fact, the Court has not yet
found it necessary to take the initiative to examine the need
for measures, though it has implemented the provisions of
paragraph 2 of Article 75, to the effect that it has freedom of
action beyond what the party or parties propose, by indicating
measures other than those requested, or measures to be taken
by the requesting State itself.10
Article 73 suggests a situation in which the need for
measures is perceived by the Court without any outside
10
For a recent example, see the Order of 18 July 2011 in the
case of Request for Interpretation of
the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear
(Cambodia v.
Thailand) (Cambodia v. Thailand) (ICJ Reports 2011, p. 551, para 58 and
cases cited).
418 H. Thirlway
prompting; but if such prompting should occur, this cannot be
a bar to the Court’s acting if it does observe a need to do so.
May a party then, instead of making a formal request for
measures, simply draw the Court’s attention to the threat to its
rights? There is something of a contradiction in asking the
Court to exercise a power which is defined as a power to act
proprio motu; but overall what matters is surely whether the Court
perceives a threat to a party’s rights, not how it came to this
perception.
This was the idea implemented in the approach made by
Nicaragua at the very outset of the Construction of a Road case, in
its Application; the reason given for this unusual course was, in
effect, that the request made at that stage (that Costa
Rica be directed to supply Nicaragua with the, or an,
Environmental Impact Assessment) was so simple and
straightforward that it could and should be done ‘without going
through a formal request for [provisional] measures and into
the costly and lengthy exercise of public hearings’.1496The
textual basis suggested for this was of course Article 75,
paragraph 1, of the Rules, quoted above, whereby the Court
may act of its own motion, without a request for measures
being made. But the text does not say that the Court may
indicate measures proprio motu, but merely that it may decide
proprio motu to examine the possibility; and it does not seem to
follow that if the Court were so to decide, it would also decide
to indicate measures without a hearing.1497Nicaragua cited the
Court’s observation in the LaGrand order, that the Court ‘may, in
cases of extreme urgency, proceed without holding oral
hearings’, so to act without even hearings is
possible.1498However, to interpret the texts to signify that,
1496nApplication instituting proceedings, 21 December 2011,

paras 53-54. The Court noted in its ultimate judgment in the
case that ‘[t]he Parties broadly agree on the existence in
general international law of an obligation to conduct an
environmental impact assessment concerning activities carried
out within a State’s jurisdiction that risk causing harm to other
States, particularly in areas or regimes of shared environmental
conditions’ (Certain Activities; Construction of a Road (Judgment), supra n. 9,
para 101).
149712The fact that hearings are provided for in Article 74
(paragraph 3) does not imply that they are excluded if the
Court is acting under Article 75. In one case, the Permanent
Court did reject a request for measures without inviting comment
from the respondent, but on the basis that the request was
misconceived, as ‘not covered by the provisions of the Statute
and Rules cited therein’ (Factory at Chorzow (Indemnities), Order of 21 November 1927,
PCIJ Series A, No. 12, p. 10 (hereinafter ‘Factory at Chorzow (Indemnities)’)).
149813LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March
1999, ICJ Reports 1999, p. 14, para 21. In that case, Germany, unlike
Nicaragua, had filed a formal request for the indication of
measures.
420 H. Thirlway
because such hearings would be superfluous merely to deal
with the Environmental Impact Assessment, therefore the
Court should act proprio motu, is to put the cart before the horse.
Nicaragua seems to have read paragraph 1 of Article 75 as
providing for the possibility of instant measures without a
hearing in cases of sufficient urgency; but even in the death
penalty cases, it was not Article 75 that was applied. The
principle audi alteram partem still applies when the Court decides of
its own motion that there may be a need for measures. The
only pre-preliminary step, both proprio motu and ex parte,
contemplated by the Rules is a possible appeal by the
President of the Court under Article 74, paragraph 3.
Nicaragua returned to the matter in its Memorial; it again
asserted that it had abstained from formally requesting
provisional measures ‘envisaged by Article 41 of the Statute for
reasons of expediency and in order to avoid lengthy and costly
proceedings’.1499The response was a letter from the Registrar to
the effect that that ‘the Court was of the view that the
circumstances of the case, as they presented themselves to it
at that time, were not such as to require the exercise of its
power under Article 75[...]’.
Finally, Nicaragua included the request for the
Environmental Impact Assessment in a formal request for
provisional measures.15In an Order of 13 December 2013,
however, the Court rejected this particular request on the
ground that it would prejudge the Court’s decision on the
merits (see Sect.3 below); and in its ultimate judgment on the
merits the Court did find that Costa Rica was in breach of a
legal duty to carry out an Assessment (but did not deal with
the question whether, if it had done so, it would also have had
a duty to supply a copy to Nicaragua).16
149914Memorial of Nicaragua, 19 December 2012, para 6.6.

Curiously, here and in the Application, the obsolete term
‘interim measures of protection’ is used.
3 The Effect of Provisional Measures
Since the decision in the LaGrand case, it is established that

provisional measures indicated by the Court impose upon the
party or parties to whom they are directed a binding obligation
of compliance—thus resolving a question long debated among
scholars. What is more, the Court has subsequently ruled that,
despite the controversy that has so long surrounded the
question, the true position under the Court’s Statute has
always been as the Court found it to be in LaGrand, namely that
measures are binding. In the 2007 Judgment in the Application of
the Genocide Convention case between Bosnia and Serbia: the Court
declared that the provisional measures that had been indicated
in that case,17before the LaGrand decision, were just as binding as
subsequent ones, because in LaGrand ‘the Court did no more
than give the provisions of the Statute the meaning and scope
they possessed from the outset’.1815001501
150015In the context of the oral proceedings on the request,

Nicaragua might have tried the device of asking the Court to
call for the Assessment as part of the evidence, as it had done
to obtain the production of some studies on the impact of
dredging, in the proceedings on Costa Rica’s request for
measures in the Certain Activities case (Order of 8 March 2011, supra
n. 6, p. 12, para 27). It is not clear that such an Assessment
yet existed, however, and the Court might well have applied a
fortiori its reasoning as to identity of measures and potential
finding on the merits (see Sect.3below).
16
See Certain Activities; Construction of a Road (Judgment), supra n. 9, para 162.
17
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of
1501 September 1993, ICJ Reports 1993, p. 325.
18
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Reports 2007, p. 230,
para 453. It would be interesting to consider whether this was
necessarily so: if general pre-LaGrand international practice was
sufficiently consistent in treating measures as non-binding,
could this have been relevant either as a guide to
interpretation, or even as a case of amendment by practice
parallel to the treatment of Article 12 of the Charter in the
Palestine Wall case, an evolution? (Legal Consequences of the Construction of a Wall in
422 H. Thirlway
This casts an interesting light on an incident in the case of
Military and Paramilitary Activities in and against Nicaragua. In that case,
Nicaragua had obtained an Order indicating measures to be
complied with by the United States; and in that Order the
Court decided unanimously that ‘until the Court delivers its final
judgment in the present case, it will keep the matters covered
by this Order continuously under review’.1502The US
Government, probably satisfied that the measures were only
an ‘indication’ of appropriate conduct, and not a binding
directive, did not comply. The 1986 Judgment, on the merits,
recounts the following:
On 23 June 1984, the Government of Nicaragua
addressed a communication to the Court referring to the
Order indicating provisional measures, informing the
Court of what Nicaragua regarded as “the failure of the
United States to comply with that Order”, and requesting
the indication of further measures. The action by the
United States complained of consisted in the fact that the
United States was continuing “to sponsor and carry out
military and paramilitary activities in and against
Nicaragua”. By a letter of 16 July 1984, the President of
the Court informed the Agent of Nicaragua that the Court
considered that that request should await the outcome of
the proceedings on jurisdiction which were then pending
before the Court.1503
On 26 November 1984, the Court gave judgment on the
question of jurisdiction, finding that it had jurisdiction to
entertain the case, and that the Application was admissible. It
formally recorded the making of the Order of 10 May
p. 149, para 27).

the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004,
In LaGrand, the Court indicated that, had Germany made a claim
for indemnification (rather than simply for a finding of breach
of the order), one of the factors it would have taken into
account was the fact that ‘when the United States authorities
took their decision [not to comply] the question of the binding
character of orders indicating provisional measures had been
extensively discussed in the literature, but had not been settled
by [the Court’s] jurisprudence’ (LaGrand (Germany v. United States of America),
Judgment, ICJ Reports 2001, p. 508, para 116).
1502Nicaragua v. United States (Provisional Measures), supra n. 6, p.
187, para 41.C.
America), Merits, Judgment, ICJ Reports 1986, p. 144, para 287.
1984,1504and at the close of its judgment referred to the
indication of measures, and indicated that ‘ [i]t follows ’
(presumably from the finding in favour of jurisdiction) ‘that the
Order of 10 May 1984, and the provisional measures indicated
therein, remain operative until the delivery of the final
judgment in the case’.150515061507No reference whatever was
made to the question of past compliance, nor to the
Nicaraguan communication of 23 June 1984. The Court was
therefore apparently content to disregard a complaint by a
party of flagrant breach by the other party of (what we now
know to have been) a binding Order of the Court, and one in
which the Court had indicated it would keep the subject-matter
‘continuously under review’. If Serbia was at fault for failing to
attribute binding effect to the 1993 measures in the Genocide
case, was not the Court equally at fault in 1984? The 1986
judgment on jurisdiction also recalled that ‘ [t]he Government
of Nicaragua [had] not reverted to the question’ of non-
compliance, but in view of the implications of the Court’s
inaction, this is perhaps not surprising.
If the Court finds that a party has failed to comply with a
provisional measure, what follows? In the recent judgment in
the two joined Costa Rica/Nicaragua cases, the Court observed
that, even though it appeared that the breach was not
continuing, ‘it cannot be said that any responsibility for the
breach has ceased: what may have ceased is the breach, not
the responsibility arising from the breach’.23In that judgment it
also found that (as Costa Rica had claimed) Nicaragua had
committed breaches of the Order of 8 March 2011, in two
respects: by sending personnel to the disputed area, and by
digging cañosthere; the first was a breach of a specific directive
in the provisional measures order, while the other was
America), Preliminary Objections, Judgment, ICJ Reports 1984, p. 395, para 3.
1505Ibid., p. 442, para 112. It is not suggested here that the
Court was wrong to find, in LaGrand, that
1506measures are binding, but that it was at least unwise in
basing this on a textual argument, which
1507carried with it the corollary stated in the 2007 Genocide
decision.
424 H. Thirlway
apparently objectionable as a breach of a directive to refrain
from activity that might aggravate the dispute.24The Court
further found that the same actions had also involved violation
of Costa Rica’s sovereignty.1508As regards consequent non-
material damage, the Court’s observed that its finding of a
breach of territorial sovereignty ‘provides adequate
satisfaction’,1509but that Nicaragua was under an obligation to
compensate Costa Rica ‘for material damages caused by
Nicaragua’s unlawful activities on Costa Rican territory’. 1510It did
not apparently find it necessary to distinguish between damage
resulting from the breach of sovereignty and from what may
be called the ‘procedural illegality’ of a breach of a binding
order of the Court.
Subsequently, in its decision of 16 December 2015 on the
merits of the two cases, the Court found that Nicaragua had
committed breaches of the 2011 Order indicating provisional
measures, and was responsible to Costa Rica in this respect.
Unusually, the question whether to order Nicaragua to pay the
costs incurred by Costa Rica in seeking a modification of the
2011 Order was raised by a group of judges.1511Article 64 of the
Statute provides that ‘[u]nless otherwise decided by the Court,
each party shall bear its own costs’; this implies that a party
can be ordered to pay some or all of the other party’s costs
(and this is confirmed by Article 97 of the Rules of Court). The
Court has never however made such an order. Apart from the
specific grounds explained in the joint declaration, it may be
observed that, particularly since LaGrand, breach of an order
indicating measures may often be regarded as more culpable
than breach of a general obligation declared in a merits
judgment. An obligation of the latter kind was, by definition, in
dispute until the judgment; whereas in the case of a
provisional measure, while the underlying obligation was also
24
See ‘Certain Activities (Provisional Measures)’, Order of 8 March
2011, supra n. 7, p. 27, paras 86 (1) and 86 (3).
5
Certain Activities; Construction of a Road (Judgment), supra n. 9, para 129.
1510 21
Ibid., para 142.
1511
33
para
Ibid., 28 See Certain Activities; Road (Judgment), supra n. 9, Joint
Declaration
21. of Judges Tomka, Greenwood, Sebutinde and
Judge ad hoc Dugard.
disputable until the case is concluded, the obligation to comply
with the measures is, as explained above, independently
binding.1512The majority of the Court however apparently took
a different view.1513
151229Cf. ibid., para 8.

151330It did not however explain its reasoning, as the Joint
Declaration pointed out (ibid, para 9).
426 H. Thirlway
4 Relationship Between Measures Requested and Rights
Claimed
The purpose of provisional measures is to protect the rights of

the State requesting them (normally the applicant); not just
any rights that that State may possess, but those asserted or
claimed in the application instituting proceedings before the
Court. The classic example of a lack of correlation between
measures and rights claimed was the request in the case of
the Arbitral Award of 31 July 1989:GuineaBissau and Senegal had
submitted a maritime delimitation dispute to arbitration, and
an award had been made, but for various reasons Guinea-
Bissau considered that the award was null and void, and
brought proceedings asking the Court to find that this was so.
In that context, it asked for provisional measures whereby
both parties should refrain from any action in the disputed
area, in order not to prejudice the settlement of the underlying
dispute. The Court declined to indicate measures, because it
had been asked ‘to pass upon the existence and validity of the
Award but not [...] upon the respective rights of the Parties in
the area in question’, so that those rights were ‘not the subject
of the proceedings before the Court, and ‘any such measures
could not be subsumed by the Court’s judgment on the
merits’.1514
There must be a link between the rights claimed and the
measures requested; but it has subsequently been ruled, in
effect, that this link must not be so close as to be equivalent to
identity. In the case of Construction of a Road in Costa Rica along the River
San Juan, when considering the request by Nicaragua for
provisional measures, the Court stated as an issue to be
examined ‘whether the provisional measures requested are
linked to the rights claimed’, but added ‘and do not prejudge
the merits of the case’.1515The first provisional measure
1514Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional Measures, Order of 2
March 1990, ICJ Reports 1990, p. 70, para 26. See also Questions relating to the Obligation to
Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, ICJ Reports
2009, p. 151, para 56 (hereinafter ‘Obligation to Prosecute or Extradite (Provisional Measures)’.
1515
33 Construction of a Road (Provisional Measures), supra n. 8, p. 404,
Ibid., para
para 20.
21.
requested was that Costa Rica supply an Environment Impact
Statement; as the Court noted, ‘this request is exactly the
same as one of Nicaragua’s claims on the merits contained at
the end of its Application and Memorial in the present case’.
There was thus an evident ‘ link’; but the Court continued:
A decision by the Court to order Costa Rica to provide
Nicaragua with such an Environmental Impact
Assessment Study as well as technical reports at this
stage of the proceedings would therefore amount to
prejudging the Court’s decision on the merits of the
case.33
In the Guinea-Bissau v. Senegal case, the problem was that the

requested measures ‘could not be subsumed by the Court’s
judgment on the merits’; in the Construction of a Road case, the
problem was that they could and would be so subsumed!
428 H. Thirlway
Another way of looking at the matter is perhaps by
considering whether a proposed provisional measure is
reversible. By definition, measures are based on a provisional
view of the case, and this view may turn out to be erroneous
or unjustified, or the Court may find that it has no jurisdiction
over the merits. If that is the situation, it would clearly be
unjust for the State that had asked for measures to be able to
retain permanently the benefit of a measure—to retain, in the
fairly trivial example in point, the Environmental Impact
Assessment which, as it turns out, it was never entitled to
have.1516It is not so much that a requested measure may
‘amount to prejudging the Court’s judgment on the merits’
(since the decision to grant it will be surrounded by
qualifications as to its provisional nature); it is rather that to
grant the measure means that a later negative (in a broad
sense) decision on the merits will fail to leave the parties in
the same legal position as before the case, as justice would
demand.
An early authority for the proposition that the Court should
not indicate a provisional measure that duplicates one of the
claims in the application is the Permanent Court case of Factory
at Chorzow (Indemnities). The Court had already found in favour of
Germany on the merits: it only remained to determine the
reparation due from Poland. Germany requested, as a
provisional measure, an immediate payment on account, the
amount being, in Germany’s submission, a very conservative
estimate of the sum that the Court would eventually find due
(and Germany gave an undertaking to repay any excess over
the final amount).1517The Court rejected the request: the
grounds stated were that it ‘cannot be regarded as relating to
the indication of measures of interim protection, but as
designed to obtain an interim judgment in favour of part of the
claim [.. .]’1518; it was therefore ‘not covered by’ the provisions
of the Statute and Rules. What was lacking, though the Court
1516Or, to be absolutely precise, not entitled to obtain on the
grounds asserted in the case before the Court.
1517Factory at Chorzow (Indemnities), supra n. 12, pp. 7-8.
Ibid., para
1518 Ibid, p. 10.
33
21.
did not say so, was the element of urgency and the element of
irreparable damage; if these are present, then, it is suggested,
the fact that what is requested as a provisional measure would
be subsumed in the eventual judgment (if the applicant is
successful) should be no bar to indication of the measure. This
is shown by the non-pecuniary examples of the measures
indicated in, for example, Military and Paramilitary Activities, Nuclear Tests
and Application of the Genocide Convention. Germany in the Chorzow case
made a gallant attempt to suggest urgency (‘the prejudice
caused by a further delay would be irreparable’1519), but that
element was not present, any more than was demonstrated in
respect of the Environmental Impact Assessment in the
Construction of a Road case.
151931 Ibid., p. 6.
430 H. Thirlway
5 Plausible ‘Rights’
The examples of proceedings on requests made by or against

Nicaragua for the indication of provisional measures
incorporate a recent addition to the vocabulary of this field of
procedural law. To justify the indication of measures, the
requesting State must be able to show, to some degree, that it
has certain legal rights, and that these are threatened by the
activity of the other State; but it cannot at that stage be
expected to prove that those rights exist beyond all doubt, or
even on a sufficient balance of probabilities as would justify a
positive finding on the merits of the case. How is the degree of
proof required for provisional measures to be defined? The
answer found in recent decisions is this:
At this stage of the proceedings, the Court is not called
upon to determine definitively whether the rights which
Nicaragua wishes to see protected exist; it need only
decide whether the rights claimed by Nicaragua on the
merits, and for which it is seeking protection, are
plausible.1520
As a matter of English style and usage, the coupling of
‘plausible’ and ‘right’ is awkward; ‘plausible’ refers to the
degree of conviction inspired by an assertion or a claim, but a
right either exists or it doesn’t, and does so whether a person
told of it is convinced or not of its existence.1521The text may
be regarded as equivalent to ‘whether Nicaragua’s claim, that
the rights for which it is seeking protection exist, is plausible’.
Judge Koroma in the Certain Activities case thought that the term
had not yet become part of the Court’s ‘settled jurisprudence’,
but despite his doubts as to its suitability, it probably has now
acquired that status. Whether, as Judge Koroma thought was
the case, the usage adds a substantive extra test to be met by
1520Construction of a Road (Provisional Measures), supra n. 8, p. 403,
para 18. The first appearance
1521of the term ‘plausible’ seems to be in the Obligation to Prosecute or
Extradite case: ‘the power of the Court to indicate provisional
measures should be exercised only if the Court is satisfied that
40
Asrights
the Oellers-Frahm
asserted by (2012
a)party
observes,
are atthe term
least ‘does not
plausible’ reflect
(supra n. 31,
any
p. defined
151, para legal
57). concept, but
rather suffers from vagueness and ambiguity [...]’ (p. 1045,
para 38).
a request for measures is less certain.
The term ‘plausible’ has some merit: it is shorthand for
something like ‘falling on the right side of the line between
assertions as to rights that the Court considers it should act
upon, and those of which it is insufficiently (prima facie)
convinced’. But it is a label, not a criterion: it is at least
doubtful whether it offers any help in drawing that line in any
particular case.1522If Judge A thinks the claim/right is plausible,
and Judge B thinks it is not, this will be on an overall, but
individual,
152239The OED indicates under ‘plausible’: ‘Chiefly [used] of

arguments or statements’. At least in some contexts, the word
also has a pejorative tone: the OED definition is ‘Having an
appearance or show of truth, reasonableness, or worth,
apparently acceptable or trustworthy (sometimes with an
implication of mere appearance); fair-seeming, specious’. This
was a point made by Judge Koroma in his separate opinion
attached to the Order of 8 March 2011 in the Certain Activities case
(supra n. 7, p. 29, para 2).
432 H. Thirlway
assessment, and in most, perhaps all, cases it will not be easy
to see what arguments can be deployed on either side to
change that assessment.
6 Irreparable Prejudice
In the Certain Activities case, the Court indicated, in accordance

with numerous precedents, that it will exercise its power to
indicate measures only if ‘there is a real and imminent risk that
irreparable prejudice may be caused to the rights in dispute
before the Court has given its final decision’.1523This is the
traditional form of words, but it is not entirely a happy one: a
right, even if it is grossly infringed, remains a right, and in
most circumstances it would probably be more accurate to
refer to the exercise of the right being prejudiced by the conduct
complained of.1524It is also a test which has sometimes to be
applied with some flexibility. The activities with which the case
was concerned were being (or had been) carried out in an area
title to which was dispute; but the Court took the view that the
title of Costa Rica was ‘plausible’, that it required protection,
and that ‘the provisional measures it may indicate would not
prejudge any title’.1525The principal measure that the Court
indicated (unanimously) was that ‘each Party shall refrain from
sending to, or maintaining in the disputed territory, [...] any
1523Certain Activities (Provisional Measures), Order of 8 March

2011, supra n. 7, p. 20, para 64.
1524A possible example of a right being destroyed appears
from Nicaragua’s concern for the impact of Costa Rica’s
dredging operations on the wildlife of the wetlands (Construction of a
Road (Provisional Measures), Order of 13 December 2013, supra n.
8, p. 407, para 34), since a species, or at least the local
manifestation of a species, can certainly be wiped out. The
Court rejected the assertion for lack of evidence.
2011, supra n. 7, p. 19, para 58. This is apparently a general
statement of the limits of the Court’s power, but with the
implication that the measures which it is about to indicate will
not so prejudge a title.
personnel, whether civilian, police or security’. This was no
1526
doubt an excellent precaution; but what ‘irreparable prejudice’

might have followed had the measure not been indicated? The
Court stated the situation, whereby Nicaragua planned to send
occasional missions into the disputed territory ‘gives rise to a
real and present risk of incidents liable to cause irremediable
harm in the form of bodily injury or death’.1527The logic is
presumably that if there are encounters, in this hotly disputed
territory, between Nicaraguans and Costa Ricans, this may lead
to violence; and if there is violence, this may lead to
bloodshed, or even to fatalities; and fatalities and (some)
bodily injuries are irreparable. Is this hypothetical scenario a
‘real and imminent risk’? Where human life may be at stake,
however, it is perhaps right to regard strict constructionism as
out of place.
7 Impact of Measures on Third Parties
In the Military and Paramilitary Activities case, at the moment when

Nicaragua instituted proceedings and asked for provisional
measures, the situation in Central America was the subject of a
multilateral negotiation known as the ‘Contadora Process’. It
was argued by the United States that the Court should refrain
from indicating measures on the ground that:
the other States of Central America have stated their
view that Nicaragua’s request for the indication of
provisional measures directly implicates their rights and
interests, and that an indication of such measures would
interfere with the Contadora negotiations.1528
Nicaragua denied that the proceedings ‘ could prejudice the
legitimate rights of any other States, or disrupt the Contadora
process’.1529The Court stated the rival contentions on the point,

2011, supra n. 7, p. 27, para 86(1).
1527Ibid., p. 24, para 75.
1528Nicaragua v. United States (Provisional Measures), supra n. 6, p.
184, para 35 (quoting counsel for the US). It was also
suggested that the other States were ‘indispensable parties in
whose absence this Court cannot properly proceed’ (ibid.)
1529 Ibid., p. 186, para 38.
41
434 H. Thirlway
but did not make any express finding. It proceeded however to
indicate the measures requested; it therefore did not reveal
whether it was not satisfied that there would be any impact on
third States’ rights, or took the view that, even if there were,
this was not a reason to refuse measures.
Any measures indicated could presumably only affect other
States if they were complied with; and it should not be
overlooked that this was the period when it was not generally
accepted that such measures were binding. If the United
States were free to decide for itself, not merely how it would
comply with the measures ordered, but also to what extent (if
at all) it should do so, it would be able to take into account the
possible impact on third States’ rights, and limit its action
accordingly. If implementation of a measure were to infringe a
right of a State not party to the proceedings,1530it would—at
that time—be no justification to point to the provisional
measures order, and say ‘the ICJ made me do it!’.
On that reasoning, the LaGrand finding as to the binding
nature of measures has what may be an unforeseen effect. In
circumstances like those in the Military and Paramilitary Activities case,
the responsibility for ensuring that implementation of measures
does not involve a breach of the rights of third parties has, it
would seem, shifted from the party addressed to the Court. It
may be that the answer to this problem (if it is a problem) is
for the Court in such a case to build in to the drafting of a
provisional measures a degree of latitude, perhaps on the lines
of ‘State X shall, while respecting the rights of State Y [or of
any State that may be affected]’, followed by statement of the
1530This is an issue that might arise in cases in which the
responsibility asserted by the applicant is shared between, or
attributable jointly to, two or more States, but for jurisdictional
reasons only one of them is a party to the case, as in the Nauru
case, or the Yugoslavian proceedings against the NATO States:
Certain Phosphate Lands in Nauru (Nauru v. Australia), Judgment, ICJ Reports 1992, p. 240
and Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999,
ICJ Reports 1999, p. 161 and (Yugoslavia v. United States of America), Provisional
Measures, Order of 2 June 1999, ICJ Reports 1999, p. 916.
measures.
8 Modification of Provisional Measures
On 8 March 2011, the Court made an order indicating certain

provisional measures in the case of Certain Activities, just referred
to, at the request of Costa Rica.49
The case was subsequently joined with the case of Construction
of a Road in Costa Rica along the San Juan River,50brought by Nicaragua,
and Costa Rica then applied for the 2011 Order to be modified
in certain respects; in response, Nicaragua also asked for
modification of the Order. These requests were on the basis of
Article 76 of the Rules, which recognizes a power of the Court
to ‘revoke or modify any decision concerning provisional
measures if, in its opinion, some change in the circumstances
justifies such revocation or modification’.51In response,
Nicaragua argued that Costa Rica’s request was
‘unsustainable’, but that ‘there ha[d] been a change in the
factual and legal situations, namely the construction of the
road and the joinder of the cases’, and it was on this basis that
it asked for (different) modifications of the Order52; Costa Rica
argued for the rejection of this request.
The Court defined its task meticulously, as being to
ascertain whether:
there is reason to conclude that the situation which
warranted the indication of certain provisional measures
in March 2011 has changed since that time. If that is so,
then it will have to consider whether such a change
justifies a modification by the Court, as sought by the
Parties or otherwise, of the measures previously
436 H. Thirlway
indicated.15311532153315341535
On Costa Rica’s request, the only relevant change found was
that organized groups of persons were entering the disputed
territory; the original order had excluded ‘personnel’ of the two
parties, but had not contemplated the presence of private
individuals. On Nicaragua’s request, the Court pointed out that
Nicaragua had complained of the road construction works, first
when it filed its own application (in the Construction of a Road case)
on 21 December 2011, and again when filing its Memorial in
that case on 19 December 2012, after the Court had made,
after hearing the parties, the Order of 8 March 2011 in the
Certain Activities case that Nicaragua sought to have modified.
There was thus no change in the relevant
circumstances.1536Nor could the mere joinder of the cases be
treated as a relevant change of circumstances, since this was
no more than:
a procedural step which does not have the effect of
rendering applicable ipso facto, to the facts underlying the
Nicaragua v. Costa Rica case, the measures prescribed with
respect to a specific and separate situation in the Costa Rica
v. Nicaragua case. Moreover, even if the situation invoked in
the Nicaragua v. Costa Rica case were to justify the indication of
provisional measures, the appropriate method of securing
that is not the modification of the Order made in the Costa
Rica v. Nicaragua case.
1537
Presumably Nicaragua had carried procedural economy too

far: what it should have done was to make its own request for
new measures, such a request necessarily being, as a result of
the joinder, made in both cases.
1531See supra n. 7.
1532See supra n. 8.
1533Article 76(1) of the Rules of the ICJ. The paragraph
begins ‘At the request of a party [...]’, but it would seem that if
the Court learned of a relevant change in the circumstance
from some other source, it could decide to modify or revoke
measures accordingly. In any event, it is bound to ‘afford the
parties an opportunity of presenting their observations on the
subject’ (Article 76(3)).
1534Certain Activities (Provisional Measures), Order of 16 July 2013,
supra n. 7, p. 233, para 14.
1535Ibid., p. 234, para 17.
1536Ibid., p. 237, paras 26-27.
1537Ibid., para 28.
Did then the presence of private persons on the territory
justify the modification of the measures? The Court stated the
principle as being that this would ‘only be the case if the new
situation were, in its turn, to require the indication of
provisional measures’ (this presumably leaves aside the case
where the modification asked for was a relaxation of the
measures), that is, ‘if the general conditions laid down in
Article 41 of the Statute of the Court were also to be met [...]’,
and there was ‘urgency’.1538The Court’s finding was that there
was neither ‘a real risk of irreparable prejudice’ nor ‘evidence
of urgency’.
9 Indications Falling Short of Measures
If the Court finds, in response to a particular request for

provisional measures, that it is unable to indicate any
measures, either because there is a lack of jurisdiction, or
because the conditions of Article 41 of the Statute are not met,
then it is functus officio so far as regards that stage of the case,
and would not appear to have any power to say more. Strictly,
therefore, in its order rejecting the requests for modifications
of the measures in the joined cases of Certain Activities and Con-
struction of a Road, the Court was overstepping the mark in
‘express[ing] its concerns’ with regard to the fact that the
‘presence of organized groups of Nicaraguan nationals in the
disputed area carries the risk of incidents which might
aggravate the present dispute’. It is not clear what effect such
a pronouncement was intended to have; if such incidents were
to occur, the responsibility for them would be neither displaced
nor affected. There are however numerous previous examples
of this sort of extra-judicial pronouncement1539; one
1538Ibid., p. 238, para 30.
1539For example, the Court’s criticism of the ill-fated attempt at rescue of the US hostages in the
United States Diplomatic and Consular Staff in Tehran case (Judgment, ICJ Reports 1980, pp. 43-44,
paras 93-94; the penultimate paragraph of the judgment declining jurisdiction in the Armed Activities
on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda)
(ICJ Reports 2006, pp. 52-53, para 127); the ‘reminder’ to the parties of their duty to comply with the
Racial Discrimination Convention (Application of the International Convention on the Elimination of
438 H. Thirlway
explanation may be that to secure the maximum votes for a
decision refusing measures, the inclusion of such a text may
go some way to meet the concern of judges who were inclined
to grant measures; but this is of course speculation.
References
Frowein JA (2004) Provisional measures by the International
Court of Justice: the LaGrand case. ZaoRV 64:55-60
Kempen B, Zan H (2009) The practice of the International
Court of Justice on provisional measures: the recent
developments. ZaoRV 69:919-929
Oda S (1996) Provisional measures: the practice of the
International Court of Justice. In: Lowe V, Fitzmaurice M
(eds) Fifty years of the International Court of Justice: essays
in honour of Sir Robert Jennings. CUP, Cambridge, pp 541-
556
Oellers-Frahm K (2012), Article 41. In: Zimmermann A,
Oellers-Frahm K, Tomuschat C, Tams CJ (eds) The statute
of the International Court of Justice: a commentary, 2nd
edn. OUP, Oxford, pp 516-529
Palchetti P (2008) The power of the International Court of
Justice to indicate provisional measures to prevent the
aggravation of a dispute. LJIL 21:623-642
Rosenne S (2004) Provisional measures in international law:
the International Court of Justice and the international
tribunal for the law of the sea. OUP, Oxford
Further Reading
Rylatt JW (2013) Provisional measures and the authority of the
International Court of Justice: sovereignty vs efficiency. Leeds
J Law Criminol 1:45-68 Thirlway H (1994) The indication of
provisional measures by the International Court of Justice. In:
Bernhardt R (ed) Interim measures indicated by international
courts. Springer, Berlin, pp 1-26 Thirlway H (2013a) The law
and procedure of the International Court of Justice: fifty years
of jurisprudence. OUP, Oxford
Thirlway H (2013b) Peace, justice and provisional measures.
In: Gaja G, Grote Stoutenburg J (eds) Enhancing the rule of
law through the International Court of Justice. Brill Nijhoff,
Leiden/ Boston, pp 75-86
Hugh Thirlway was an official of the International Court of Justice,
latterly as Principal Legal Secretary, from 1968 to 1994 and
from 2003 to 2007. In the interim, he was Professor of
All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of
15 October 2008, ICJ Reports 2008, p. 398, para 149).
International Law at the Graduate Institute of International
Legal Studies, Geneva. He has held various visiting research
and teaching posts, and written widely on international law
and the International Court of Justice.
Joinder of Cases: Strengthening the Sound
Administration of Justice and the Judicial
Economy
Abstract On 17 April 2013, for the first time, the International

Court of Justice decided to apply Article 47 of its Rules by
issuing two separate Orders and proceeding to join two cases
involving the same parties—the Republic of Nicaragua and the
Republic of Costa Rica—as applicants and respondents
inversely in each case. The two Orders issued by the Court are
destined to have a significant influence on future procedures
involving Article 47. Despite the fact that a decision to join two
or more cases has to be taken in the light of the specific
circumstances of each case, the recent Orders of the Court
shed light on various elements that can be easily extrapolated
to future proceedings and confirms that the principles of sound
administration of justice and judicial economy constitute a
keystone of the procedural device of the joinder, as will be
shown in the present Chapter.
Contents
1 Introduction.................................................................................................................................... 414
2 Procedural Background.................................................................................................................. 414
3 Rules of the Court.......................................................................................................................... 416
4 Previous Practice of the ICJ........................................................................................................... 417
5 Article 47 and the Jurisprudence of the Court................................................................................ 418
6 Opposite Positions of the Parties.................................................................................................... 422
7 Conclusions.................................................................................................................................... 424
References......................................................................................................................................... 425
Edgardo Sobenes Obregon was part of the legal team representing the Republic of Nicaragua in the
following cases: Territorial and Maritime Dispute (Nicaragua v. Colombia); Certain Activities carried
out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica
along the San Juan River (Nicaragua v. Costa Rica); Question of the Delimitation of the Continental
Shelfbetween Nicaragua and Colombia (Nicaragua v. Colombia); Alleged Violations of Sovereign
Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia); Delimitation in the
Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern
Part ofIsla Portillos (Costa Rica v. Nicaragua). The views and opinions expressed in this Chapter are
4
those of the author and do not necessarily reflect the views and opinions of the Republic of Nicaragua.
The usual disclaimer applies.
4
0
Joinder of Cases: Strengthening the Sound Administration of
Justice
E. and Obregon
Sobenes the... (*) 441
Embassy of Nicaragua in the Netherlands, The
Hague, The Netherlands e-mail:
esobenes@gmail.com
9_18
442 E. Sobenes Obregon
1 Introduction
By two separate Orders dated 17 April 2013 the International

Court of Justice ordered upon the request of Nicaragua, and
despite Costa Rica’s objection,1540that the cases concerning
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua) (hereinafter referred to as ‘Certain Activities case’)
1541
and
Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa
Rica) (hereinafter referred to as ‘Road case’ or ‘Construction of a
Road,’)) be joined.
1542
This was the first occasion in which the ICJ applied Article
47 of the Rules after its adoption as part of the reform of the
Rules of Court that took place in 1978. It was also the first
time the ICJ had to deal with a request to join proceedings of
two cases involving the same parties, as applicants and
respondents inversely in each case, and holding opposing
views on the joinder. This is what makes these cases unique,
as in past cases the dynamic involved a single applicant
bringing a case against several respondents;1543several
applicants against a single respondent;1544or the proceedings
being instituted by the parties through a special agreement. 1545
The two Orders issued by the Court are destined to have a
significant impact on future procedures involving Article 47,
particularly in light of the Court’s newly elucidated
considerations on this procedure. This section intends to briefly
1540!See Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Joinder of Proceedings, Order of 17 April 2013, ICJ Reports 2013, p. 169, para 13 (hereinafter ‘Order
of 17 April 2013 (Certain Activities) ’) See also Construction of a Road in Costa Rica along
1541the San Juan River (Nicaragua v. Costa Rica), Joinder of Proceedings, Order of 17 April 2013, ICJ
Reports 2013, p. 186, para 9. (hereinafter ‘Order of 17 April 2013 (Road) ’).
15422Costa Rica instituted proceedings against Nicaragua with
regard to an ‘alleged incursion into, occupation of and use by
Nicaragua’s army of Costa Rican territory as well as breaches
of Nicaragua’s obligations towards Costa Rica’ under a number
of international treaties and conventions. See Costa Rica’s
Application, available at
http://www.icj-cij.org/docket/files/150/16279.pdf. 3Both cases
will be referred as ‘Nicaraguan cases'.
15434e.g. the Kosovo cases.
1544South-West Africa cases. See also Rosenne (2006), p. 1214 and
pp. 1218-1219.
15456e.g. North Sea Continental Shelf cases.
Justice and the... 443
assess, against the background of previous practice of the
Court, the institute of joinder under the recent Orders of the
Court in the Nicaraguan cases and attempts to identify the
elements that served as a basis for the Court's ruling on said
proceedings.
2 Procedural Background1546
On 22 December 2011, Nicaragua instituted proceedings

against Costa Rica in the Road case for the violations of
Nicaraguan sovereignty and major environmental damages on
its territory. As indicated by Nicaragua, the Application was
filed in response to Costa Rica’s unilateral construction of a
road along the San Juan de Nicaragua River, which, Nicaragua
argued, ‘threatened] to destroy the San Juan de Nicaragua
River and its fragile ecosystem.’1547In its Application Nicaragua
expressed its consciousness of the connection between the
legal and factual grounds between the Nicaraguan cases and
explicitly reserved ‘its rights to consider in a subsequent phase
[...] whether to request that the proceedings in both cases [...]
be joined.’1548
Subsequently, on 19 December 2012 in a letter
accompanying Nicaragua’s Memorial in the Road case,
Nicaragua formally requested the Court to decide on the
joinder of the cases1549based on the interest of the proper
administration of justice and in accordance with Article 47 of
the Rules of Court. To this end, Nicaragua relied on the factual
and legal connection between the two cases to rationalize the
need to join the proceedings.
Before deciding on Nicaragua’s request, the Court asked
15467For a full procedural background see the Orders of 17 April 2013

and the Judgment in the joint cases (Nicaraguan cases) dated
16 December 2015.
1547 See Nicaragua’s Application instituting proceedings
against Costa Rica (Road case) dated 22 December 2011, para 4,
available at http://www.icj-cij.org/docket/files/152/16917.pdf.
1548Ibid, para 56.
1549Nicaragua suggested on several occasions that the
proceedings in the two cases be joined, until it finally made a
formal request on December 2012.
Costa Rica to inform its views on the proposed joinder of the
proceedings in writing. Although, this step is not reflected in
Article 47 it constitutes a practice1550that sometimes1551is
adopted by the Court. For its part, Costa Rica informed the
Court of its views on the proposed joinder and stated that the
proceedings in the ‘two cases should not be joined [..]’,
claiming that the joinder would be neither timely nor equitable,
while noting that the Court had never joined cases where the
course of action was opposed by one of the
parties.1552Moreover, Costa Rica asserted that the subject
matters of the two cases were in fact different,1553and that no
finding of fact or law in one case was necessary for a
determination of the other. Additionally, Costa Rica argued
that both cases had their own procedural timetable and
different compositions of the membership of the
Court.1554Costa Rica pleaded that Nicaragua’s request was
intended to delay the prompt resolution of the Certain Activities
case1555and to join both cases ‘would run against the sound
administration of justice [.. .].’1556
1550Both countries, Nicaragua and Costa Rica, expressed their

views on the Joinder in their Written Observations on the
Admissibility of Nicaragua’s Counter-Claims.
1551On January 2017 Costa Rica filed a new Application
against Nicaragua. In its new Application, Costa Rica requested
the Court to join the new proceedings with those in the case
concerning Maritime Delimitation. Unlike the Nicaraguan cases, in
which the Court requested Costa Rica to submit in writing its
position on Nicaragua’s request to join the proceedings, the
Court proceeded to issue its Order to join the proceedings in
the cases concerning Maritime Delimitation in the Caribbean Sea and the Pacific Ocean
(Costa Rica v. Nicaragua) and the Land Boundary in the Northern Part of Isla Portillos (Costa
Rica v. Nicaragua), without the benefit of having Nicaragua’s position in writting.
1552Order of 17 April 2013 (Certain Activities), para 17, p. 170.
1553Written Observations of Costa Rica to the Admissibility of
Nicaragua’s Counter-Claims, para 2.32, p. 16, dated 30
November 2012.
1554Ibid., para 2.33, p. 16.
1555See Order of 17 April 2013 (Certain Activities), para 13, p. 169.
1556Written Observations of Costa Rica to the Admissibility of
Nicaragua’s Counter-Claims, para 2.31, p. 15, dated 30
On 17 April 2013, after having ascertained the view of the
parties, the Court issued two Orders, identical in their juridical
content but with their own specific factual backgrounds,
instructing the joinder of the proceedings of the two cases
pending before it.
3 Rules of the Court
Before analyzing Nicaragua’s request to join the two

proceedings and the Orders of the Court granting such
request, it is proper to briefly refer to the provisions that
regulate the procedural device of the joinder, as well as to the
previous cases where the ICJ had joined different proceedings.
Article 47 of the Rules of the Courts provides that ‘[t]he
Court may at any time direct that the proceedings in two or
more cases be joined. It may also direct that the written or
oral proceedings, including the calling of witnesses, be in
common; or the Court may, without effecting any formal
joinder, direct common action in any of these respect.’
The provision as it presently stands was adopted in 1978, as
part of the reform of the Rules of the Court. Article 47 reflects
and consolidates the jurisprudence and practice of the ICJ and
its predecessor,1557the Permanent Court of International
Justice. Before the 1978 reform, the Rules of the Court were
silent on the institute of joinder.1558With the adoption of Article
47 the Court incorporated to its provisions for the first time,
one that deals explicitly and exclusively with the joinder as
such. Up to 2013 Article 47 had never been used by the Court.
November 2012. Costa Rica reiterated its position with regard

to the question of the joinder in a letter dated 7 February
2013.
1557See Rosenne (1983), p. 108. See also Thirlway (2013), p.
1748; Rosenne (2006), p. 1214.
1558Before the reform of the Rules in 1978 joinder were
mentioned only in the context of counter claims and
preliminary objections. As stated by Rosenne ‘[t]he Rules [of
Court] did not mention joinder until 1936 when the two
possibilities mentioned in the text were introduced. These
were retained in the Rules of 1946 and substantially revised in
1972 and 1978 [...]’. Rosenne (2006), p. 1209, footnote 4.
In contrast, the PCIJ and the ICJ had made use of a different
provision, article 48 of the Statute, which provides the Court
with the faculty to make ‘orders for the conduct of the
case.’1559
1559The full text of article 48 of the Statue of the Court states

that ‘ [t]he Court shall make orders for the conduct of the
case, shall decide the form and time in which each party must
conclude its arguments, and make all arrangements connected
with the taking of evidence’. Based on this provision the PCIJ
joined the proceedings in the cases concerning Certain German Interests
in Polish Upper Silesia; Legal Status of the South-Eastern Territory of Greenland and Appeals from
Certain Judgments of the Hungaro/Czechoslovak Mixed Arbitral Tribunal. The ICJ joined
the proceedings in the South West Africa and North Sea Continental Shelf cases.
Turning back to Article 47, it is evident from a simple
reading of the content that it offers the Court a broad margin
of discretion as will be explained below. It also envisages
different scenarios of application for this article. The first
scenario involves a ‘formal’ joinder, implying that the Court has
issued an order directing to join the proceedings, and the
resolution of the proceedings is delivered as a single
judgment.1560The second scenario is where the Court decides
to conduct common proceedings of different cases,1561written
and oral, including the calling of witnesses, without formally
ordering the joinder of the cases. Finally, a third scenario is
where the Court orders common action in separate
proceedings.1562Scholars maintain that the two latter scenarios
do not constitute ‘formal’ joinder and at the most could be
considered as a semi joinder.1563The author partially agrees
with the latter, in the sense that only through a single
judgment different procedures could be considered to be
joined; otherwise the term ‘joinder’ would be misapplied. In
this connection, the term semi joinder seems forced, either you
have a joinder or you do not, anything in between concern
only aspects of the management of proceedings.
4 Previous Practice of the ICJ
The practice of the ICJ concerning joinders can be divided into

two periods, before and after the 1978 reforms of the Rules of
Court. Before 1978 the ICJ considered and granted joinder in
two occasions, namely the South West Africa1564cases and the North
1560e.g. South West African cases, North Sea Continental Shelf cases and the Nicaraguan cases.
1561As far as the author is concern, there is no example of
such practice before the ICJ.
1562As far as the author is concern, the ICJ has not directed
common action in separate proceedings under Article 47.
1563See Thirlway (2013), p. 1748. Concerning the third
scenario, Article 47 clearly states that the Court may ‘without
effecting a formal joinder, direct common action in any of
these respects’.
27 South West Africa Cases (Ethiopia v. Union of South Africa; Liberia v. Union of South Africa),
Separate Opinion of Judge Trindade to the Orders of
1564
Order of 20 May 1961, ICJ Reports 1961, p. 13.
17 April 2013, para 10.
cases.1565It did so by relying on the general
Sea Continental Shelf
provision stipulated in article 48 which crystalizes the inherent
privileges of any international tribunal to rule on matters
concerning the conduct of the cases. Recently, Judge Trindade
concluded that ‘on those [previous] occasions [the Court]
transcended the letter of its interna corporis [and...] was guided
by its awareness of the sound administration of justice.’ 1566
On the 4th of November 1960 Ethiopia and Liberia filed
simultaneous Applications against the Union of South Africa,
and on May 1961 the Court instructed the
1565North Sea Continental Shelf (Denmark/Federal Republic of Germany; Federal Republic of

1566Germany/Netherlands), Order of 26 April 1968, ICJ Reports 1968, p. 9.
joinder of procedures, as it considered that both parties were
in the same interest.1567The Court decided the latter after
having confirmed that both, the submissions contained in the
Applications and in the Memorials filed by Ethiopia and Liberia,
were (mutas mutandis) identical.
The North Sea Continental Shelf cases differs from that on the South
West Africa cases in the sense that, in the former, the joinder of
the proceedings was agreed by the concerned parties from the
very beginning. In a Protocol1568additional to the Special
Agreement where the parties decided to submit their
differences to the Court, they agreed the following:
2. After the notification in accordance with item 1 above the
parties will ask the Court to
join the two cases.
3. The three Governments agree that, for the purpose
of appointing a judge ad hoc, the Governments of the
Kingdom of Denmark and the Kingdom of the
Netherlands shall be considered parties in the same
interest within the meaning of Article 31, paragraph 5, of
the Statute of the Court.1569
Once again, the decision of the Court came after receiving
the Counter Memorials of Denmark and the Netherlands
‘confirming] that the two Government consider[ed] themselves
to be parties in the same interest.’1570The reasoning of the
Court might lead one to hurriedly interpret that the joinder was
ordered because the parties to the Protocol agreed that for the
purpose of appointing a Judge ad hoc they shall be considered in
the same interest1571within the meaning of Article 31(5) of the
Rules. However, as will be demonstrated shortly this was not
the case. In part this false interpretation is due to the lack of
proper elaboration by the Court on the genuine elements on
156728See South West Africa Cases (Ethiopia v. Union of South Africa; Liberia v. Union of South
Africa), 29
Order of 20 May 1961, ICJ Reports 1961, p. 15.
1568 Done in Bonn on 2 February 1967.
1569North Sea Continental Shelf (Denmark/Federal Republic of Germany; Federal Republic of
Germany/Netherlands), Order of 26 April 1968, ICJ Reports 1968, p. 10 (emphasis added).
1570Ibid.
157132Ibid.
which it based its ruling on the joinder.15721573
5 Article 47 and the Jurisprudence of the Court
In the South West Africa and the North Sea Continental Shelf cases the
structure of the Orders might suggest that determining that
both parties had the same interest ‘for purpose of appointing
judges ad hoc[ . . . ] was the ratio decidendi’,34but a detailed analysis of
the Orders show that this was simply an element of it.
Professor Thirlway submits that despite the wording of the
Orders, the nomination of a common judge ad hoc was not the
essential cause for the joinder, but rather that the continuation
of separate proceedings would have been ‘inconvenient and
otiose’,1574thus, affecting the administration of justice and
procedural economy.
In this sense, the Court has previously stated—but not
sufficiently treated—, that it is not enough for the parties to
have the same interest for the Court to join different
proceedings. This was stressed in the Use of Force cases where
the Court concluded that it ‘[...] may find that parties are in
the same interest without having recourse to joinder.’ 1575In the
same proceeding Judge Kreca appended a Separate Opinion
reaffirming and expanding this view:
the provision of Article 31, paragraph 5, of the Statute
according to which the parties in the same interest shall
be reckoned as one party only, cannot be understood as
being tantamount to joinder.
Although the same interest of the parties constitutes an element
of the notion of joinder, taken per se it neither constitutes
formal joinder nor can be considered identical to it.
Joinder implies that the parties in the same interest are
reckoned as one party in the totality of their procedural position which,
157233In both of the cases indicated above the Court ordered

the parties to file common Rejoinders and Replies, as well as
the appointment of a single judge ad hoc. Both cases were
resolved in a single Judgment. A previous example in which
the Court decided against a joinder is the Fisheries Jurisdiction cases.
See Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits,
Judgment, ICJ Reports 1974, p. 177, para 8.
157334
35See Thirlway (2013), p. 1750.
1574 See ibid. (footnote omitted).
1575Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, ICJ Reports 2004
(emphasis added).
Justice and the...
in addition to the appointment of a single judge ad hoc 451
includes also one set of pleadings and a single judgment.
The parties in the same interest, in the sense of Article
31, paragraph 5, of the Statute, are reckoned as one
party in a restricted, functional sense versus the process
position of parties in its totality in the event of the issue
of joinder, and that is the choice of judges ad hoc. The
formulation according to which “several parties in the
same interest [...] shall [...] be reckoned as one party
only” (Statute, Art. 31, para. 5) is made not for the
purpose of a joinder but “for the purpose of the
preceding provisions” (Statute, Art. 31, para. 5) of Article
31 regulating equalization of the parties before the
Court.1576
Nowadays, it is clear that the joinder of proceedings and
parties in the same interest for purposes of Article 31, paragraph
5, of the Statute are not to be confused as having the same
meaning1577or be used interchangeably. The term same interest
(for the purpose of the joinder) should be understood broadly,
in which case it will indeed constituted a factor that may in
conjunction with other elements justify a joinder.1578In no way
the ‘same interest’ refers solely—or at all—to the appointment
of a judge ad hoc, but to the totality of the proceedings. In this
regard Rosenne considered that the joinder may have a
consequence in the matter of the appointment of a judge ad
hoc, but underlined that this is a separate issue, similar to the
matter of the appointment of an Agent before the
Court,1579which constitutes a procedural arrangement that
needs to be taken care of by the parties.
The aim of Article 47 is to allow the Court to address
simultaneously the totality of various interrelated and
contested issues raised by the parties41in different cases, while
ruling in a single judgment, as has been recently confirmed by
the Court in its Order dated 2 February 2017 in relation to the
case concerning Maritime Delimitation in the Caribbean Sea and the Pacific
Ocean (Costa Rica v. Nicaragua) and the Land Boundary in the Northern Part of
Isla Portillos (Costa Rica v. Nicaragua).
The ICJ has made clear that any decision concerning the
157637Ibid., para 69.

157738Quitana (2015), p. 1069.
157839See Thirlway (2013), p. 1752.
157940Rosenne (2006), p. 1209.
joinder of proceedings will have to be taken in ‘light of the
specific circumstances of each case.’42In this regard, the
practice and procedure concerning the joinder is not extensive.
Nevertheless, and as a result of the Orders in the Nicaraguan
cases, there is room to draw some observations on some of
the basic elements needed for a joinder to be effective.
The first and more obvious element in a joinder is the mere
existence of two or more cases before the Court, involving the
same parties. Additionally, and in light of the practice of the
Court a fundamental connection between the fact and law of
the contested issues as raised by the parties must exist 43—
coincident circumstances of fact or law.44This was addressed by the Court
in the North Sea Continental Shelf cases and in the Nicaraguan cases as
will be shown below.
When it comes to the facts in the Nicaraguan cases, the
Court observed that both parties made reference to the
harmful environmental effect of the works in and along the
San Juan River. It recognized that the works being carried out
by Nicaragua and Costa Rica, the dredging of the San Juan de
Nicaragua River and the construction of a road along the right
bank of the San Juan river respectively, were taking place in,
along, or in close proximity to the San Juan River; leading the
Court to observe that the facts claimed by the parties in the
two cases were taking place in a common geographical area.
The Court also stressed that both parties relied on the same
jurisdictional basis and noticed that in both cases the parties
referred to violations of the same instruments, namely the
1858 Treaty of Limits, the Cleveland Award, the Alexander
Awards and the Ramsar Convention,45thus confirming the legal
link between the cases.
Subsequently, the Court explicitly stated that ‘[b]oth sets of
proceedings are about the effect of the aforementioned works
on the local environment and on the free navigation on, and
access to, the San Juan River. In this regard, both parties refer
to the risk of sedimentation of the San Juan River.’ 46This
implies that the
Justice
41 and the...
Order of 17 April 2013 (Road), para 17 and Order of 17 April 2013 (Certain
453
Activities), para 23. Ibid., paras 12 and 18 respectively. See also the
42
Order of 2 February 2017, para 16.

43
Order 17 April 2013 (Certain Activities), para 23 and Order 17 April 2013 (Road), para 17. 44Nuclear
Tests (New Zealand v. France), Interim Protection, Dissenting Opinion of Judge Petren, ICJ Reports
1973, p. 159. The Court used the word ‘or’ but it seems that the connection should be between both, fact
and law.
45
Order of 17 April 2013 (Road), para 16.
46
Order of 17 April 2013 (Certain Activities), para 20 and Order of 17 April 2013 (Road), para 14.
Court not only found that the arguments of both parties were
connected but also that the legal grounds of the claims
concerning environmental harm were similar and interrelated.
The principles of the sound administration of justice and
judicial economy were highlighted in the dictum, when
concluding that a decision to join the proceedings would allow
the Court to address simultaneously the totality of the various
interrelated and contested issues [indicated above] raised by
Nicaragua and Costa Rica in both cases; and that hearing and
deciding the two cases together would be in conformity with
the above mentioned principles.1580The Court has constantly
underlined the nature of the procedural device of the joinder
as a ‘measure of judicial administration, so as to secure the
sound administration of justice’1581and judicial economy.
Evidence to this is that the PCIJ and the ICJ have exercised
their power to join proceedings in circumstances that were,
first and foremost, triggered by that consideration and
consonant with those principles.1582
At the end the Court agreed with Nicaragua’s position and
considered it necessary to join the proceedings of the two
cases in order to allow it to address simultaneously the various
interrelated and contested issues raised by the parties to the
dispute.1583In sum, the Court first established the connection
between the legal and factual elements of the cases and then
158047 See for example the Order of 17 April 2013 (Road), paras 17-18.
158148Separate Opinion of Judge Trindade to the Orders of 17 Aril
2013, para 8.
158249See Order of 17 April 2013 (Road), p. 187, para 12. See also Legal Status of the South-Eastern
Territory of Greenland, Order of 2 August 1932, PCIJ, Series A/B, No. 48, p. 268; North Sea
Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands),
Order of 26 April 1968, ICJ Reports 1968, p. 9. See also the Order of 2 February 2017, para 16.
158350Order of 17 April 2013 (Certain Activities), para 24 and Order of 17 April 2013 (Road), para 18.
The ratio decidendi of the Court is contained in paragraphs 13-18 (Road) and 19-24 (Certain
Activities).
underlined the need to join both cases in order to avoid
affecting the administration of justice and the procedural
economy.
The latest Order of the Court of 2 February 2017 concerning
the joinder of the Isla Portillos and Maritime Delimitation cases is
mostly silent on the reasoning behind such Order. The
language used by the Court indeed is very limited and do not
explain the application of the fundamental link between the facts
and the law. In one single paragraph, the Court simply refers
to a close link between the claim and certain aspects. Given the
nature of the cases, it would not have been too difficult or
arduous for the Court to elaborate on the connection of facts
and law between both proceedings. Unfortunately, by not
doing it so, the Court missed a unique chance to consolidate
the elements it exalted in the 2013 Orders.1584
1584Order of 2 February 2017, para 17. The full paragraphs reads as

follows: ‘In the present case, the Court considers that, in view
of the claims made by Costa Rica in the case concerning Isla
Portillos and the close link between those claims and certain
aspects of the dispute in the case concerning Maritime Delimitation,
the proceedings in the two cases should be joined. Such a
joinder will allow the Court to address simultaneously the
totality of the various interrelated and contested issues raised
by the Parties, including any questions of fact or law that are
common to the disputes presented. ’
6 Opposite Positions of the Parties
As has been observed before, the Court’s practice1585showed

that joinder had only been allowed where no opposition by the
other party had been raised, as the Court would usually ‘attach
[ . . . ] primary weight to the wishes of the parties rather than to
its own convenience and the economy of judicial
time.’1586However, on this occasion it is to be noted that the
Court departed from its previous practice and proceeded with
the joinder despite Costa Rica’s firm opposition. 1587
Costa Rica considered that Nicaragua’s request to join the
cases was not appropriate or timely, and pointed out to the
fact that the parties agreed not to have a second round of
written pleadings in the Certain Activities case and thus, the case
was ready for oral hearings. On the other hand Nicaragua was
about to file its Memorial in the Road case at the end of 2012,
and Costa Rica its Counter Memorial 1 year later.
In the words of Costa Rica ‘ [ . . . ] to join the two different
cases would constitute a serious prejudice to the right of Costa
Rica to seek and obtain a decision from the Court with regard
1585See v. Iceland), Merits, Judgment,
Fisheries Jurisdiction (Federal Republic of Germany
ICJ Reports 1974, p. 177, para 8, which states that ‘[o]n 17 January
1974 the Court decided by nine votes to five not to join the
present proceedings to those instituted by the United Kingdom
against the Republic of Iceland. In reaching this decision the
Court took into account the fact that while the basic legal
issues in each case appeared to be identical, there were
differences between the positions of the two Applicants, and
between their respective submissions, and that joinder would be contrary to
the wishes of the two Applicants. The Court decided to hold the public
hearings in the two cases immediately following each other’
(emphasis added).
1586See Rosenne (2006), p. 1219.
15874This position has been confirmed to a certain extent by
the Court through its Order of 2 February 2017, in which the Court
decided to join the proceeding in the cases concerning the
55
See Delimitation
Maritime Costa Rica’s Written
(Costa Rica Observations
v. Nicaragua) ofBoundary
and the Land Costa(Costa
RicaRica onv.the
Admissibility
Nicaragua) , of Nicaragua’s
Counter-Claims, dated 30 November 2012, para 2.34, p. 16.
to the case it initiated in November 2010, the written phase of
which is (unless the counterclaims [were] allowed) in practice
closed.’1588At the time, the Court was dealing simultaneously
with two independent requests of Nicaragua, the first being
the joinder and the second a submission of four counter-claims
in the Certain Activities case. On 18 April 2013 one day after the
Orders concerning the Joinder was delivered, the Court
rendered its Order on the
1588despite the fact that Nicaragua expressed that it ‘would

not be able to comment on the appropriateness of a joinder
[...] until it was in possession of the experts’ report and Costa
Rica’s Memorial [in the Maritime Delimitation case]’. See the Order of 2
February 2017, para 14. Nicaragua, contrary to Costa Rica, did not
firmly
65 oppose to the Joinder nor did it accept it.
Separate Opinion of Judge Trindade to the Orders of 17 April 2013,
para 27 (footnote omitted).
Nicaraguan counter-claims. In relation to the first counter-
claim,1589the Court noted that ‘ [ . . . ] As a result of the joinder of
the proceedings in these two cases [ . . . ] , Nicaragua’s first
counter-claim in the Costa Rica v. Nicaragua case is subsumed
under its principal claim in the Nicaragua v. Costa Rica case relating
to Costa Rica’s alleged responsibility for “the impairment and
possible destruction of navigation on the San Juan River
caused by the construction of a road next to its right bank”,
1590
and hence, the Court found no need to adjudicate on the
admissibility of Nicaragua’s first counter-claim as such.
Concerning the joinder itself, the Court did not expect ‘any
undue delay in rendering its Judgment in the two cases.’ 1591In
this regard it should be recalled that the Court had ordered
provisional measures1592in the Certain Activities case, which were
intended to preserve Costa Rica’s rights pending the final
decision.1593
As for the issue of judge ad hoc, Nicaragua on its parts
appointed the same Judge ad hoc on both cases, Mr Gilbert
Guillaume, and Costa Rica appointed different judges ad hoc for
each case, Mr Bruno Simma and Mr John Dugard in the Road
158956The first counter-claim of Nicaragua reads as follow:

‘Costa Rica bears responsibility to Nicaragua: — for the
construction of a road along the San Juan de Nicaragua River
in violation
1590of Costa Rica’s obligations stemming from the 1858 Treaty of Limits and various treaty or
customary rules relating to the protection of the environment and good neighbourliness’. See Certain
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a
Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), CounterClaims, Order of 18
April 2013, ICJ Reports 2013, p. 206.
159151 Ibid, p. 209.
15928Order of17April 2013 (Certain Activities), para 24 and Order of17April 2013 (Road), para 18.
59
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, Order of 8 March 2011, ICJ Reports 2011, para 82, p. 26.
159360It should be reminded that during the first hearings for
provisional measures for this case, Costa Rica did not prove
the presence of an imminent risk of prejudice to its rights in
the disputed area nor did it convince the Court that
Nicaragua’s dredging project of the San Juan de Nicaragua
river was creating a risk of irreparable prejudice to Costa Rica’s
environment or to the flow of the Colorado River.
In line with the procedural nature of the joinder, the Court
dealt with the merits and the incidental proceedings of each
case individually. An example of this treatment was the
rejection of Nicaragua’s request for the Modification of Provi-
sional Measures so as to allow that the provisional measures
ordered in the Certain Activities Case included measures for the Road
case. The Court noted that ‘joinder is a procedural step which
does not have the effect of rendering applicable ipso facto, to the
facts underlying the Nicaragua v. Costa Rica case, the measures
prescribed with respect to a specific and separate situation in
the Costa Rica v. Nicaragua case. Moreover, even if the situation
invoked in the Nicaragua v. Costa Rica case were to justify the
indication of provisional measures, the appropriate method of
securing that is not the modification of the Order made in the
Costa Rica v. Nicaragua case.’
15961597
Another example is the way the
Court organized the oral hearings on the merits. The Court
heard each case independently from each other, but in a
consecutive manner. At the end, and to a procedural extent,
both cases were treated as one and the Court rendered a
single Judgment on the Merits of both cases, with exceptional
control and accuracy on the facts and law.
7 Conclusions
Up to the present, the practice of the Court concerning the

procedural device of the joinder remains scarce. The previous
dictum of the ICJ in the South West Africa cases and North Sea Continental
Shelf cases, were short and narrow in their reasoning and were
not clear as for the elements or requirements of a joinder. It
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Order of 16
July 2013, Provisional Measures, ICJ Reports 2013, p. 230.
1597For example, in the Fisheries Jurisdiction and the Nuclear Test cases,
the Court seems to have based its decision not to join the
cases on the will of the parties. See Rosenne (2006), pp. 1212-
1213.
would not be outrageous to say that before the Orders of 17
April 2013 a sort of nebula was still very present around the
practical application of Article 47. The recent Orders of the
Court in the Nicaraguan cases confirmed that the principles of
the sound administration of justice and judicial economy
constitute the cornerstone and the main guide of the
procedural device of the joinder. More importantly, the Courts
also shed light on other elements, which could be easily
extrapolated to future cases, which are the need to establish a
connection between the subject matters of the cases, both in
law and fact, and the non-dependency on the consent or the
agreement of the parties.64Overall, these Orders made clear
that the required connection between the legal and factual
elements of different cases need to be sustained by the need
to preserve the sound administration of justice and judicial
economy ( ‘la bonne administration de la justice '65).
References
Quitana JJ (2015) Litigation at the International Court of
Justice, practice and procedure. Brill/ Nijhoff, Leiden
Rosenne S (1983) Procedure in the international court, a
commentary on the 1978 rules of the International Court of
Justice. Martinus Nijhoff Publisher, The Hague Rosenne S
(2006) The law and practice of the international court (1920-
2005). Nijhoff, Leiden/ Boston
Thirlway H (2013) The law and procedure of the international
court of justice, fifty years of jurisprudence, vol II. Oxford
University Press, Oxford
Edgardo Sobenes Obregon is the Counsellor of the Embassy of

Nicaragua in The Hague. Mr Sobenes is an international lawyer
and acts as Legal Advisor of the Republic of Nicaragua before
the International Court of Justice. He holds a Master degree of
the Instituto Superior de Derechoy Economía and the Instituto de Formación Continua de la
Universidad de Barcelonaand is a Candidate of the Advanced LLM in
Public International Law, Leiden Law School. He is the current
President and founder of the Nicaraguan Branch of the
International Law Association and Co-founder and Member of
the Committee of Le Club de Droit International in The Hague,
Netherlands.
65
Separate Opinion of Judge Trindade to the Orders of 17 April 2013,
para 27 (footnote omitted).
Part VII
Conclusions
Conclusions
Pierre d’Argent
Abstract Ratherthan summarizing the very rich contributions of

this book, the conclusions briefly reflect on the lasting impact
of the Nicaraguan cases through five different observations,
reflecting more generally on the turn from dispute resolution
to dispute management in international adjudication.
As the reader will have realized by now, the chapters gathered
in this book aim at presenting in a systematic and orderly way
the various contributions to the development of international
law resulting from the cases litigated by Nicaragua before the
International Court of Justice. The title of the book refers to
‘impacts on international law’; they are to be found in the
reasoning and findings of the Court in various orders and
judgments where Nicaragua appeared as claimant, respondent
or intervener, prompting progress and increased legal certainty
in a wide range of issues relating to procedural, jurisdictional
or substantive law. The wealth of material and reflections
presented in each chapter of this book is impressive; the
authors have made special efforts to offer the reader critical
roadmaps through the successive cases relating to the topics
they respectively address. Because the contributions are
usefully accompanied by abstracts, it would be repetitive to
summarize them in the present conclusions.
The merit of those contributions is also to show that while it
makes historical and political sense to zero in on the cases
involving Nicaragua, any critical account of those cases need
to be put in a wider perspective that includes other pronounce-
ments having later referred to the Nicaraguan cases. Besides,
it is of paramount epistemological importance to admit that the
law stemming from the Nicaraguan cases is such not because
of the identity of the parties they involved, but because those
cases gave the Court the opportunity to apply pre-existing
rules. Indeed, it would be destructive of the idea of justice 4
2
9
430 P. d’Argent
itself and of the trust that States may place in the World Court
if one were to consider that the same rules would not have
been applied the same way to similar facts arising between
different parties. Said
Full Professor at the University of Louvain, Associate Member

of the Institute of International Law, Member of the Brussels
Bar and special counsel to Foley Hoag; formerly, First
Secretary of the International Court of Justice.
P. d’Argent (*)
University of Louvain, Louvain-la-
Neuve, Belgium e-mail:
pierre.dargent@uclouvain.be
9_19
differently, the lasting influence of the Nicaraguan cases on
other ICJ cases is due to the law they articulate, not the
parties they involved. Therefore, from such legal perspective
and in order to sustain the indispensable fiction on which any
judicial exercise is predicated, it is not insulting to the editors
of this volume to consider that Nicaragua has somehow been
accidentally associated with the ‘impacts on international law’
accounted for in this book.
From an historical and political perspective, it is of course a
completely different matter and what this book very
interestingly brings also to light is how, for a period of more
than three decades, ICJ proceedings have successfully been
made part and parcel of Nicaragua’ s foreign policy, either as
matter of neighbouring policy in most of the cases, or as a
matter of global policy when the United States of America was
summoned. The indispensable personal ingredients for such
success are traced back by several contributors; suffice it to
recall the central role played in that regard by Ambassador
Carlos Arguello Gomez, the most experienced Agent of any
State before the ICJ.
Because of the range of issues it required the Court to
address, the Nicaragua v. United States case is present and
discussed in almost all of the chapters of this book. As
president Bedjaoui makes clear in his introduction, the
landmark nature and broad legal scope of that case could
Conclusions 431
never be emphasized enough. Most chapters of this book
heavily refer and rely on the findings of the Court in that
famous case, taking it as a point of departure for the various
successive legal developments they recall, analyse and reflect
upon. Taking a step back, and also looking at the way most
current textbooks refer to the Nicaragua v. United States case in the
numerous areas of international law they cover, one could
come to wonder how it was simply possible to teach
international law before that great case and without its
benefit. Of course, international law was taught before 1986—
but the point is that it was most probably taught and learnt
differently prior to that immensely influential case.
More broadly and at a deeper level, the Nicaragua v. United
States case had a very lasting impact on the discipline of
international law itself, by its David v. Goliath configuration. Sure,
international law and litigation between States existed before
this great case—but maybe they existed differently in the very
minds of those which consider the discipline relevant. In a
way, that case gave a new boost of existential confidence to a
field of law often associated with the rule of the mightiest; it
brought an old Court under the spotlight of the news, helping
a respectable institution—somehow dusty and largely unknown
to the public—find its place in the balance of power at a time
when public opinion and public diplomacy became more and
more important. It is always difficult to assess cause and
effect, but establishing a link between the judicial victory
achieved by Nicaragua in that case and the increased number
of cases later referred to the Court by States from the
Southern hemisphere is not a foolish assumption. So, if there
seems to be a ‘before’ and an ‘after’ that case, how does it
translate and manifest itself? In no specific order, let me
submit five short additional observations.
The title of this book deserves a first general observation,
concerning the nature of the ‘impacts’ of the Nicaraguan cases
on international law. The word ‘impact’
432 P. d’Argent
connotes a damaging shock between two objects, one moving
fast and hitting a slower, or even motionless, one. If a sense
of movement should undoubtedly also be perceived when
reviewing the Nicaraguan cases over the years, the impacts
they have left on international law are far from being hurtful,
while the idea that international law was a solid unified body of
rules is inadequate. Actually, a better image would be that of a
pond in which an additional drop of water incorporates itself
and, at the same time, creates a lasting wave.
A second observation also results from the contributions
collected in this book: while the Nicaraguan cases have
provided for important developments of international law on
the merits—in fields like the international responsibility of
States, the law of treaties, the prohibition on the use of force,
the law of the sea, international environmental law, etc.—, a
substantial amount of the legal clarity they brought relates to
issues of jurisdiction. This should not come as a surprise in a
settlement mechanism based on consent and premised on the
principle according to which the Court always has la compétence de
la competence. For that matter, the Nicaraguan cases reflected
upon in this book are illustrative of the argumentative
generosity of the Court when it comes to speaking about itself,
i.e. its judicial function and power. Such explanatory
generosity contrasts with the wise judicial economy it
traditionally applies on points of law relating to the merits. Of
course, the history of the Court is filled with jurisdictional
Homeric battles; long before being seized by Nicaragua, the
Court and the PCIJ had filled hundreds of pages of legal
reasoning relating to jurisdictional issues. But because, for the
very first time, a superpower was sued in court by a small
state over a core aspect of its foreign policy, moreover at a
time of deep ideological division, the need for the Court to
carefully and thoroughly establish its jurisdiction in very
specific circumstances was essential.
What is also quite remarkable is that the Nicaraguan cases
have been litigated on the basis of jurisdictional basis that
have a very wide ratione materiae scope, i.e. optional clauses or
the Pact of Bogota. As a result, the genuine character of the
Conclusions 433
dispute was rarely debated, which does not mean that
jurisdiction was not contested; simply, the need to dress-up
the dispute within the terms of jurisdictional clauses found in
treaties having a specific object did not arise. The Nicaraguan
cases have also provided for important developments in
procedural matters, notably in relation to interventions, the
joinder of cases, and rules on evidence.
A third observation relates the consistency of legal
argumentation throughout the cases. When a State chooses to
pursue through international adjudication some of its foreign
policy objectives and submits several cases to the same
international court, it runs the risk that a legal argument
presented in one case suddenly backlashes in a later case. In
other words, opportunistic legal imagination in one case can,
at best, seriously limit available arguments in another, or, at
worse, expose the State to embarrassing inconsistencies over
time. It stands to the credit of Nicaragua to have avoided such
pitfalls, which requires long-term legal vision, and to have
constantly adapted its arguments to the evolving Court’s case-
law.
A fourth observation can be phrased as a question: beyond
the gains in terms of legal certainty resulting from the
Nicaraguan cases as influential legal precedents and points of
reference on a whole range of legal issues—or even, as noted
above, as points of departure—how are we to think about the
current status of the settlement of international disputes by
judicial means and has it really fulfilled the promises of
substantial justice inaugurated by the brave efforts of
Nicaragua?
Let me submit here a working hypothesis which would
require longer developments to be argued and demonstrated:
one of the important impacts made by the Nicaraguan cases
on international law is that they may have inaugurated an era
where judicial means designed for the actual settlement of
international disputes are now rather used as a way for their
management. Another hypothesis, less radical, would be to say
that the Nicaraguan cases did not really inaugurate such turn,
but that they revealed something inexplicit that was already
434 P. d’Argent
there. Realizing that resorting to ICJ jurisdiction is part of a
larger confrontational and diplomatic strategy for pressing
claims in order to achieve political gains so as to change the
nature and balance of strained relationships may seem to
sacrifice too much to realism, if not cynicism. However, if one
closely observes the timing of bringing cases to the Court, the
publicity given to cases in the respective national polities
involved, the practice of ongoing negotiations and
discontinuance affecting a significant number of cases, the
difficulties sometimes surrounding implementation of
judgments, it would be naive to entertain a romanticized ideal
of the settlement of disputes. To be sure, settling disputes is
what the Court is about and the mission defining its juris-
diction, but what the Court thinks about itself and how the
Parties intent to use it may differ. As a result, maybe we
should endorse a more mature appraisal of the function of
dispute management by public judicial means since they are so
often triggered alongside or instead of political means.
This brings me to one last observation. Managing
international disputes by judicial means is, practically speaking,
swapping one category of professionals— the diplomats—for
another category—the learned counsels; or, at least, adding
some of the latter to the former. Of course, the very fact of
articulating political claims through legal language in order for
them to come within the jurisdiction of the Court and to make
sense in a court of law is profoundly transformative of the
dispute. It is not that the subject-matter of the dispute would
radically change, nor that the parties would suddenly bridge
their differences because the language of politics and
diplomacy is set aside and replaced by the language of the
law. Sometimes, this may happen; sometimes, the opposite
will occur. Be that as it may, it remains an empirical fact that
an element of rationalization and increased professionalization
is added to the dispute when the judicial theatre unfolds. The
Nicaraguan cases have been turf for the best and the brightest
of international counsels and they have also led to changes in
the legal profession, witnessing the rise and need of external
counsels.
Conclusions 435
*
Let us hope that other States be inspired by the trust

Nicaragua never failed to put in the Court and that, because of
such unwavering trust, a second volume of collected essays be
added to this book in the next decades.
Index
A Armed attack, see Use

Admissibility of force Attribution,
Contadora process, see State responsibility
66-67 intervention identification
(see methodology (inductive v.
(Intervention)) deductive), 255-258
Pact of Bogota (see (Pact North Sea Continental Shelf, 249-250, 254
of Bogota)) use of force, 66- opinion juris, 252-255
67, 310-311 Alexander resolutions of
Awards, seeCanas-Jerez international
Treaty of Limits, land organizations, 72-73,
boundary American Treaty 76, 78, 251, 254, 256, 313-
on Pacific Settlement, see Pact 314 state practice, 72, 251-
of Bogota 253 treaty (interplay), 69-70,
76, 236-243, 313
C Customary international law
Canas-Jerez Treaty exceptio non adimpleti, 259
of Limits D
canalization, 99- Disproportionality test, see
101 land Maritime delimitation
boundary, 88-89,
94-99,
108-111 E
navigational rights Environmental impact
objecto de comercio, 103- assessment
107 regulatory Convention on biological
powers, 107-108 diversity, 359 emergency
validity, 90-94 exemption, 359 obligation,
Chamorro-Bryan Treaty, 99- 354-355 prior assessment,
101 Circumstances excluding 359 risk of harm, 355-356
wrongfulness, see State Esquipulas II Accord, 26, 81,
responsibility 86, 145 Evidence
Cleveland Award, see Canas- admission v. self-serving,
Jerez Treaty of Limits, 45-46, 49-50
validity affidavits, 53-55
Contadora process, 66-67, 81, non-official material, 47
163-164, 168-169, 408 press reports, 45, 52-53
Contras, 44-52, 62, 72-76, scientific evidence, 364
283-291, 307-308, state official statement, 45-
4
311-312 46, 49-52 3
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Edgardo Sobenes Obregon

Benjamin Samson Editors

Nicaragua Before the

ISBN 978-3-319-62961-2 ISBN 978-3-319-62962-9 (eBook)

At the very beginning the idea behind the preparation of this

Finally, we wish to dedicate this book to all States, which,

Chronological List of Cases of Nicaragua Before

1958: Arbitral Award Made by the King of Spain on 23 December

1 July 1958 Application

1984: Military and Paramilitary Activities in and Against

9 April 1984 Application instituting proceedings

1 Judges Ad hoc included in this chronological list are those

Questions of Jurisdiction and/or Admissibility

1986: Border and Transborder Armed Actions (Nicaragua

28 July 1986 Application

1986: Border and Transborder Armed Actions

1986: Land, Island and Maritime Frontier Dispute (El

1999: Territorial and Maritime Dispute Between

8 December 1999 Application instituting proceedings 21 March

2001: Territorial and Maritime Dispute (Nicaragua v.

6 December 2001 Application instituting proceedings Preliminary

2005: Dispute Regarding Navigational and Related Rights (Costa Rica v.

29 September 2005 Application instituting proceedings

2010: Certain Activities Carried Out by Nicaragua in the Border Area

18 November 2010 Application instituting proceedings Provisional Measures

2011: Construction of a Road in Costa Rica Along the San Juan

21 December 2011 Application instituting proceedings

PENDING CASES BEFORE THE INTERNATIONAL COURT

2013: Question of the Delimitation of the Continental

16 September 2013 Application instituting proceedings Preliminary

2013: Alleged Violations of Sovereign Rights and

26 November 2013 Application instituting proceedings Preliminary

25 February 2014 Application instituting proceedings

2017: Land Boundary in the Northern Part of Isla

16 January 2017 Application instituting proceedings

Part II Evidentiary Matters

Part III The Nicaraguan Sagas Before the International Court of

Part IV Jurisdictional Issues in the Nicaraguan Cases

Part V Substantive Issues in the Nicaraguan Cases

Part VI Procedural Issues in the Nicaraguan Cases

Part VII Conclusions

Tessa Barsac University of Paris Nanterre, Nanterre, France

Yuri B. Parkhomenko Foley Hoag LLP, International Litigation and

Oxford Journal of Legal Studies

Abstract One must be grateful to those who had the fruitful

One must be grateful to those who had the fruitful idea of

Disclaimer: The views and opinions expressed in this chapter

© Springer International Publishing AG 2018

the soundness and utility of which are attested by the

Some States have an excessive tendency to perceive

outlined for these Ambassadors the underlying reason for

In 1984, the International Court of Justice was presided

It was on 9 April 1984 that Nicaragua knocked for the first

notes that it constitutes by its rich content as much as by its

The book which we are going to read presents a thorough

its addressee. However, the Yearbook of the Court regularly

The American Treaty on Pacific Settlement, more commonly

As Professor Antonio Remiro Brotons reminds us, the Pact

has been examined with constantly renewed attention.

The 1984 and 1986 Judgments have strengthened the

In its always serene and steady march to the service of the

had been feared. Surely no remedy could have been achieved

The Court thus established a rather restrictive criterion for

of the non-appearing Respondent State. I know that there is