Advisory Jurisdiction

Since States alone are entitled to appear before the Court, public (governmental) international
organizations cannot be parties to a case before it. However, a special procedure, the advisory
procedure, is available to such organizations and to them alone. This procedure is available to five
United Nations organs, fifteen specialized agencies and one related organization.
Though based on contentious proceedings,advisory proceedings have distinctive features resulting
from the special nature and purpose of the advisory function.
Advisory proceedings begin with the filing of a written request for an advisory opinion addressed to
the Registrar by the United Nations Secretary-General or the director or secretary-general of the
entity requesting the opinion. In urgent cases the Court may take all appropriate measures to speed
up the proceedings. To assemble all the necessary information about the question submitted to it,
the Court is empowered to hold written and oral proceedings.
A few days after the request has been filed, the Court draws up a list of the States and international
organizations that are likely to be able to furnish information on the question before the Court.
Usually, the States listed are the member States of the organization requesting the opinion, while
sometimes the other States to which the Court is open in contentious proceedings are also included.
As a rule, organizations and States authorized to participate in the proceedings may submit written
statements, followed, if the Court considers it necessary, by written comments on others’s
statements. These written statements are generally made available to the public at the beginning of
the oral proceedings, if the Court considers that such proceedings should take place.
Contrary to judgments, and except in rare cases where it is expressly provided that they shall have
binding force (for example, as in the Convention on the Privileges and Immunities of the United
Nations, the Convention on the Privileges and Immunities of the Specialized Agencies of the United
Nations, and the Headquarters Agreement between the United Nations and the United States of
America), the Court’s advisory opinions are not binding. The requesting organ, agency or
organization remains free to decide, as it sees fit, what effect to give to these opinions.
Despite having no binding force, the Court’s advisory opinions nevertheless carry great legal weight
and moral authority. They are often an instrument of preventive diplomacy and help to keep the
peace. In their own way, advisory opinions also contribute to the clarification and development of
international law and thereby to the strengthening of peaceful relations between States.

he Football War (Spanish: La guerra del fútbol), also known as the Soccer War or the 100 Hour
War, was a brief war fought between El Salvador and Honduras in 1969. Existing tensions between
the two countries coincided with rioting during a 1970 FIFA World Cup qualifier. The war began on
14 July 1969, when the Salvadoran military launched an attack against Honduras. The Organization
of American States (OAS) negotiated a cease-fire on the night of 18 July (hence "100 Hour War"),
which took full effect on 20 July. Salvadoran troops were withdrawn in early August.
Despite a formal peace treaty, a decision by the International Court of Justice (ICJ), the support of
the OAS and more than 40 years having passed, the dispute remains active.[citation needed]

Contents
[hide]
 1Context
 2Buildup
 3War
 4Cease-fire
 5Withdrawal
 6Consequences
 7Aftermath
 8See also
 9Notes
 10References
 11External links

Context[edit]
Although the nickname "Football War" implies that the conflict was due to a football match, the
causes of the war go much deeper. The roots were issues over land reform in Honduras and
immigration and demographic problems in El Salvador. Honduras is more than five times the size of
neighboring El Salvador, but in 1969 the population of El Salvador (3.7 million) was some 40%
higher than that of Honduras (2.6 million). At the beginning of the 20th century, Salvadorans had
begun migrating to Honduras in large numbers. By 1969 more than 300,000 Salvadorans were living
in Honduras. These Salvadorans made up 20% of the peasant population of Honduras.[1]
In Honduras, as in much of Central America, a large majority of the land was owned by large
landowners or big corporations. The United Fruit Company owned 10% of the land, making it hard
for the average landowner to compete. In 1966 United Fruit banded together with many other large
companies to create la Federación Nacional de Agricultores y Ganaderos de Honduras (FENAGH;
the National Federation of Farmers and Livestock-Farmers of Honduras). FENAGH was anti-
peasantry (against the campesino) as well as anti-Salvadoran. This group put pressure on the
Honduran president, Gen. Oswaldo López Arellano, to protect the property rights of wealthy
landowners.[2]
In 1962 Honduras successfully enacted a new land reform law.[3] Fully enforced by 1967, this law
gave the central government and municipalities much of the land occupied illegally by Salvadoran
immigrants and redistributed it to native-born Hondurans as specified by the Land Reform Law. The
land was taken from both immigrant farmers and squatters regardless of their claims to ownership or
immigration status. This created problems for Salvadorans and Hondurans who were married.
Thousands of Salvadoran laborers were expelled from Honduras, including both migrant workers
and longer-term settlers. This general rise in tensions ultimately led to a military conflict.

Buildup[edit]
In June 1969, Honduras and El Salvador met in a two-leg 1970 FIFA World Cup qualifier. There was
fighting between fans at the first game in the Honduran capital of Tegucigalpa on 8 June 1969,
which Honduras won 1–0. The second game, on 15 June 1969 in the Salvadoran capital of San
Salvador, which was won 3–0 by El Salvador, was followed by even greater violence.[4] On 26 June
1969, the day a play-off match was to take place in Mexico City, El Salvador dissolved all diplomatic
ties with Honduras, stating that in the ten days since the game in El Salvador 11,700 Salvadorans
had been forced to flee Honduras. It said that as Honduras had "done nothing to prevent murder,
oppression, rape, plundering and the mass expulsion of Salvadoreans", there was little point in
maintaining relations.[5] It further claimed that "the government of Honduras has not taken any
effective measures to punish these crimes which constitute genocide, nor has it given assurances of
indemnification or reparations for the damages caused to Salvadorans".[6] El Salvador won the
decisive third game 3–2 after extra time.
War[edit]
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Late in the afternoon of 14 July 1969, the concerted military action began. El Salvador was put on a
blackout and the Salvadoran Air Force, using passenger airplanes with explosives strapped to their
sides as bombers, attacked targets inside Honduras. Salvadoran air-raid targets included Toncontín
International Airport, which left the Honduran Air Force unable to react quickly. The
larger Salvadoran Army launched major offensives along the two main roads connecting the two
nations and invaded Honduras. The invasion phase was perpetrated by three main contingents: the
Chalatenago Theater, the North Theater, and the East Theater. The Chalatenango Theater was
based on the northwest side of El Salvador, including the departments of Santa
Ana and Chalatenango, across the mountain range close to the border, and the Sumpul River. This
was a strategic region due to its rich soil and climate; however, this Theater would not see any
fighting as it was to deploy only in case of Honduran penetration into El Salvador. The North Theater
was composed of a small unit of armored vehicles and a large amount of manpower. The East
Theater was to deploy in the departments of La Unión and Morazán. This Theater was composed of
a large mechanized division, armored fighting vehicles such as the M3 Stuart and a large amount of
artillery such as the 105mm M101.
Initially, rapid progress was made by the Salvadoran army. By the evening of 15 July, the Honduran
army had been pushed back over eight kilometers. The departmental capital of Nueva
Ocotepeque fell shortly after along with eight other cities, placing the Salvadoran army within striking
distance of the Honduran capital Tegucigalpa. The momentum of the advance did not last, however.
The Honduran air force reacted by striking the Salvadoran Ilopango airbase. Honduran bombers
attacked for the first time in the morning of 16 July. When the bombs began to fall, Salvadoran anti-
air artillery starting firing, repelling some of the bombers. The bombers had orders to attack
the Acajutla Port, where the main oil facilities of El Salvador were based. Honduran air-raid targets
also included minor oil facilities such as the ones in Cutuco (es; ceb). By the evening of 16 July, huge
pillars of smoke arose in the Salvadoran coastline from the burning oil depots that had been
bombed.[citation needed]
Nicaraguan dictator Anastasio Somoza Debayle helped Honduras by providing weapons and
ammunition.

Cease-fire[edit]
The Honduran government called on the OAS to intervene, fearing that the nearing Salvadoran
Army would invade the capital Tegucigalpa. The OAS met in an urgent session on 15 July and called
for an immediate cease-fire and a withdrawal of El Salvador's forces from Honduras. El Salvador
resisted the pressures from the OAS for several days, demanding that Honduras first agree to pay
reparations for the attacks on Salvadoran citizens and guarantee the safety of those Salvadorans
remaining in Honduras. A cease-fire was arranged on the night of 18 July; it took full effect only on
20 July. El Salvador continued until 29 July to resist pressures to withdraw its troops. Then a
combination of pressures led El Salvador to agree to a withdrawal in the first days of August. Those
persuasive pressures included the possibility of OAS economic sanctions against El Salvador and
the dispatch of OAS observers to Honduras to oversee the security of Salvadorans remaining in that
country. The actual war had lasted just over four days, but it would take more than a decade to
arrive at a final peace settlement.

Withdrawal[edit]

F4U Corsair, one of the piston types flown in the war

El Salvador finally withdrew its troops on 2 August 1969. On that date, Honduras guaranteed
Salvadoran President Fidel Sánchez Hernández that the Honduran government would provide
adequate safety for the Salvadorans still living in Honduras. Sánchez had also asked that
reparations be paid to the Salvadoran citizens as well, but that was never accepted by Hondurans.
There were also heavy pressures from the OAS and the debilitating repercussions that would take
place if El Salvador continued to resist withdrawing their troops from Honduras.
The war was the last conflict in which piston-engined fighters fought each other, both sides
deploying some World War II era design aircraft.[7] Cavalier P-51D Mustangs, F4U-1, -4 and -5
Corsairs, T-28A Trojans, AT-6C Texans and even C-47 Skytrains converted into bombers saw
action.[8] On July 17, Honduran Vought F4U Corsairs engaged a flight of Salvadorian Goodyear FG-
1D Corsairs and Cavalier Mustangs — militarized versions of civilian air racing P-51s. During the
duel, a Honduran pilot named Fernando Soto shot down two of the Salvadorian planes. El Salvador
continued to fly its surviving Corsairs into 1975; Honduras didn’t retire its fleet until 1979.[9] All planes
in the engagement were of American origin.

Consequences[edit]
Both sides of the Football War suffered extensive casualties. Some 300,000 Salvadorans were
displaced, many had been forcibly exiled or had fled from war-torn Honduras, only to enter an El
Salvador in which the government was not welcoming. Most of these refugees were forced to
provide for themselves with very little assistance. Over the next few years, more Salvadorans
returned to their native land, where they encountered overpopulation and extreme poverty.[10]
El Salvador suffered about 900 mostly civilian dead. Honduras lost 250 combat troops, and over
2,000 civilians during the four-day war. Most of the war was fought on Honduran soil and thousands
more were made homeless. Trade between Honduras and El Salvador had been greatly disrupted,
and the border officially closed. This damaged the economies of these nations tremendously and
threatened the Central American Common Market (CACM).

 The war resulted in a 22-year suspension of the CACM, a regional integration project that had
been set up by the United States largely as a means of counteracting the effects of the Cuban
Revolution.
 The political power of the military in both countries was reinforced. In the Salvadoran legislative
elections that followed, candidates of the governing National Conciliation Party (Partido de
Conciliación Nacional, PCN), were largely drawn from the ranks of the military. Having
apologized for their role in the conflict, they proved very successful in elections at the national
 and local levels. In contrast to the gradual democratization process that had characterized the
1960s, the military establishment would exercise increasing control
 The social situation in El Salvador worsened, as the government proved unable to satisfy the
economic needs of its citizens deported from Honduras. The resulting social unrest was one of
the causes of the El Salvador Civil War, which followed approximately a decade later

Aftermath[edit]
Eleven years after the war the two nations signed a peace treaty on 30 October 1980[11] and agreed
to resolve the border dispute over the Gulf of Fonseca and five sections of land boundary through
the International Court of Justice. In 1992, the Court awarded most of the disputed territory to
Honduras, and in 1998, Honduras and El Salvador signed a border demarcation treaty to implement
the terms of the ICJ decree. The total disputed land area given to Honduras after the court's ruling
was around 374.5 km2 (145 sq mi). In the Gulf of Fonseca the court found that Honduras held
sovereignty over the island of El Tigre, and El Salvador over the islands of Meanguera and
Meanguerita.[12]
The dispute continued despite the ICJ ruling. At a meeting in March 2012 President Porfirio Lobo of
Honduras, President Otto Pérez of Guatemala, and President Daniel Ortega of Nicaragua all agreed
that the Gulf of Fonseca would be designated as a peace zone. El Salvador was not at the meeting.
However, in December 2012, El Salvador agreed to a tripartite commission of government
representatives from El Salvador, Honduras, and Nicaragua that was to take care of territorial
disputes through peaceful means and come up with a solution by 1 March 2013. The commission
did not meet after December, and in March 2013 stiff letters threatening military action were
exchanged between Honduras and El Salvador.[12]

See also

Nicaragua v. United States

Court International Court of Justice

Full case Case Concerning the Military and Paramilitary

name Activities in and Against Nicaragua (Nicaragua v.
United States of America)[1]
 Decided June 27, 1986

Citation(s) 1986 I.C.J. 14

Case opinions

Separate Opinion: Nagendra Singh

Separate Opinion: Manfred Lachs

Separate Opinion: José María Ruda

Separate Opinion: Taslim Olawale Elias

Separate Opinion: Roberto Ago

Separate Opinion: José Sette-Camara

Separate Opinion: Ni Zhengyu

Dissent: Shigeru Oda

Dissent: Stephen Schwebel

Dissent: Robert Jennings

Court membership

Judges Nagendra Singh, Guy Ledreit de

sitting Lacharrière, Roberto Ago, Mohammed

Bedjaoui, Taslim Olawale Elias, Manfred

Lachs, Kéba Mbaye, Ni Zhengyu, Shigeru

Oda, José María Ruda, Stephen Schwebel, José

Sette-Camara, Robert Jennings, Claude-Albert

Colliard (ad hoc)

The Republic of Nicaragua v. The United States of America (1986) ICJ 1 is a public international
law case decided by the International Court of Justice (ICJ). The ICJ ruled in favor of Nicaragua and
against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had
violated international law by supporting the Contras in their rebellion against the Nicaraguan
government and by mining Nicaragua's harbors. The United States refused to participate in the
proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case.
The U.S. also blocked enforcement of the judgment by the United Nations Security Council and
thereby prevented Nicaragua from obtaining any compensation.[2] Nicaragua, under the later, post-
FSLN government of Violeta Chamorro, withdrew the complaint from the court in September 1992
following a repeal of the law which had required the country to seek compensation.[3]
 The Court found in its verdict that the United States was "in breach of its obligations under
customary international law not to use force against another State", "not to intervene in its affairs",
"not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its
obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the
Parties signed at Managua on 21 January 1956."
The Court had 16 final decisions upon which it voted. In Statement 9, the Court stated that while the
U.S. encouraged human rights violations by the Contras by the manual entitled Psychological
Operations in Guerrilla Warfare, this did not make such acts attributable to the U.S.[4]

Contents
[hide]

 1Background and history of US intervention in Nicaragua

o 1.1Nicaragua's submissions
 2Judgment
o 2.1Findings
o 2.2The ruling
o 2.3Legal clarification and importance
o 2.4How the judges voted
o 2.5Dissent
 3Certain witnesses against the US
o 3.1First witness: Commander Luis Carrion
o 3.2Second witness: Dr. David MacMichael
o 3.3Third witness: Professor Michael Glennon
o 3.4Fourth witness: Father Jean Loison
o 3.5Fifth witness: William Hüper
 4UN voting
 5U.S. defense and response
 6Significance
o 6.1Third-party interpretations
 7See also
 8References
o 8.1Citations
o 8.2Sources
 9External links

Background and history of US intervention in Nicaragua[edit]

The first armed intervention by the United States in Nicaragua occurred under President Taft. In
1909, he ordered the overthrow of Nicaraguan President José Santos Zelaya. During August and
September 1912, a contingent of 2300 U.S. Marines landed at the port of Corinto and
occupied León and the railway line to Granada. A pro-U.S. government was formed under the
occupation. The 1914 Bryan–Chamorro Treaty granted perpetual canal rights to the U.S. in
Nicaragua and was signed ten days before the U.S.-operated Panama Canal opened for use, thus
preventing anyone from building a competing canal in Nicaragua without U.S. permission.[5]
In 1927, under Augusto César Sandino, a major peasant uprising was launched against both the
U.S. occupation and the Nicaraguan establishment. In 1933, the Marines withdrew and left
the Nicaraguan National Guard in charge of internal security and elections. In 1934, Anastasio
Somoza García, the head of the National Guard, ordered his forces to capture and murder Sandino.
In 1937, Somoza assumed the presidency, while still in control of the National Guard, and
established a dictatorship that his family controlled until 1979.[6]
The downfall of the regime is attributed to its embezzlement of millions of dollars in foreign aid that
was given to the country in response to the devastating 1972 earthquake. Many moderate
supporters of the dictatorship began abandoning it in the face of growing revolutionary sentiment.
The Sandinista (FSLN) movement organized relief, began to expand its influence and assumed the
leadership of the revolution.[7] A popular uprising brought the FSLN to power in 1979. The United
States had long been opposed to the socialist FSLN, and after the revolution the Carter
administration moved quickly to support the Somocistas with financial and material aid.
When Ronald Reagan took office, he augmented the direct support to an anti-Sandinista group,
called the Contras, which included factions loyal to the former dictatorship. When Congress
prohibited further funding to the Contras, Oliver North continued the funding through arms sales that
were also prohibited by Congress.[8]

Nicaragua's submissions[edit]
Nicaragua charged:
(a) That the United States, in recruiting, training, arming, equipping, financing, supplying and
otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in
and against Nicaragua, had violated its treaty obligations to Nicaragua under:
Article 2 (4) of the United Nations Charter;
Articles 18 and 20 of the Charter of the Organization of American States;
Article 8 of the Convention on Rights and Duties of States;
Article I, Third, of the Convention concerning the Duties and Rights of States in the Event of
Civil Strife.
(b) That the United States had breached international law by
1. violating the sovereignty of Nicaragua by:
armed attacks against Nicaragua by air, land and sea;
incursions into Nicaraguan territorial waters;
aerial trespass into Nicaraguan airspace;
efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua.
2. using force and the threat of force against Nicaragua.
3. intervening in the internal affairs of Nicaragua.
4. infringing upon the freedom of the high seas and interrupting peaceful maritime
commerce.
5. killing, wounding and kidnapping citizens of Nicaragua.
Nicaragua demanded that all such actions cease and that the United States had an
obligation to pay reparations to the government for damage to their people, property,
and economy.
It is noteworthy that the United States, the defaulting party, was the only member that
put forward arguments against the validity of the judgment of the court, arguing that it
passed a decision that it "had neither the jurisdiction nor the competence to render."
Members that sided with the United States in opposing Nicaragua's claims did not
challenge the court's jurisdiction, its findings, nor the substantive merits of the
case.[9] Pursuant to general and customary international law, the United States has an
obligation to Nicaragua to respect the sovereignty of Nicaragua. ii. Pursuant to general
and customary international law, the United States has an obligation to Nicaragua not to
use force or the threat of force against Nicaragua. iii. Pursuant to general and customary
international law, the United States has an obligation to Nicaragua not to intervene in
the internal affairs of Nicaragua.

Judgment[edit]
The very long judgment first listed 291 points, among them that the United States had
been involved in the "unlawful use of force". The alleged violations included attacks on
Nicaraguan facilities and naval vessels, the mining of Nicaraguan ports, the invasion of
Nicaraguan air space, and the training, arming, equipping, financing and supplying of
forces (the "Contras") and seeking to overthrow Nicaragua's Sandinista government.
This was followed by the statements that the judges voted on.[10]

Findings[edit]
The court found evidence of an arms flow between Nicaragua and insurgents in El
Salvador between 1979-81. However, there was not enough evidence to show that the
Nicaraguan government was imputable for this or that the US response was
proportional. The court also found that certain transborder incursions into the territory of
Guatemala and Costa Rica, in 1982, 1983 and 1984, were imputable to the Government
of Nicaragua. However, neither Guatemala nor Costa Rica had made any request for
US intervention; El Salvador did in 1984, well after the US had intervened unilaterally.[2]
"As regards El Salvador, the Court considers that in customary international law the
provision of arms to the opposition in another State does not constitute an armed attack
on that State. As regards Honduras and Costa Rica, the Court states that, in the
absence of sufficient information as to the transborder incursions into the territory of
those two States from Nicaragua, it is difficult to decide whether they amount, singly or
collectively, to an armed attack by Nicaragua. The Court finds that neither these
incursions nor the alleged supply of arms may be relied on as justifying the exercise of
the right of collective self-defence."[11]
Regarding human rights violations by the Contras, "The Court has to determine whether
the relationship of the contras to the United States Government was such that it would
be right to equate the Contras, for legal purposes, with an organ of the United States
Government, or as acting on behalf of that Government. The Court considers that the
evidence available to it is insufficient to demonstrate the total dependence of the contras
on United States aid. A partial dependency, the exact extent of which the Court cannot
establish, may be inferred from the fact that the leaders were selected by the United
States, and from other factors such as the organisation, training and equipping of the
force, planning of operations, the choosing of targets and the operational support
provided. There is no clear evidence that the United States actually exercised such a
degree of control as to justify treating the contras as acting on its behalf... Having
reached the above conclusion, the Court takes the view that the Contras remain
responsible for their acts, in particular the alleged violations by them of humanitarian
law. For the United States to be legally responsible, it would have to be proved that that
State had effective control of the operations in the course of which the alleged violations
were committed."[11]
The Court concluded that the United States, despite its objections, was subject to the
Court's jurisdiction. The Court had ruled on November 26 by 11 votes to one that it had
jurisdiction in the case on the basis of either Article 36 of the Statute of the International
Court of Justice (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship,
Commerce and Navigation between the United States and Nicaragua. The Charter
provides that, in case of doubt, it is for the Court itself to decide whether it has
jurisdiction, and that each member of the United Nations undertakes to comply with the
decision of the Court. The Court also ruled by unanimity that the present case was
admissible.[12] The United States then announced that it had "decided not to participate
in further proceedings in this case." About a year after the Court's jurisdictional decision,
the United States took the further, radical step of withdrawing its consent to the Court's
compulsory jurisdiction, ending its previous 40 year legal commitment to binding
international adjudication. The Declaration of acceptance of the general compulsory
jurisdiction of the International Court of Justice terminated after a 6-month notice of
termination delivered by the Secretary of State to the United Nations on October 7,
1985. [13]
Although the Court called on the United States to "cease and to refrain" from the
unlawful use of force against Nicaragua and stated that the US was "in breach of its
obligation under customary international law not to use force against another state" and
ordered it to pay reparations, the United States refused to comply.[14] As a permanent
member of the Security Council, the U.S. has been able to block any enforcement
mechanism attempted by Nicaragua.[15] On November 3, 1986 the United Nations
General Assembly passed, by a vote of 94-3 (El Salvador, Israel and the US voted
against), a non-binding[16] resolution urging the US to comply.[17]

The ruling[edit]
On June 27, 1986, the Court made the following ruling:
The Court

1. Decides that in adjudicating the dispute brought before it by the Application filed
by the Republic of Nicaragua on 9 April 1984, the Court is required to apply the
"multilateral treaty reservation" contained in proviso (c) to the declaration of
acceptance of jurisdiction made under Article 36, paragraph 2, of the Statute of
the Court by the Government of the United States of America deposited on 26
August 1946;
2. Rejects the justification of collective self-defense maintained by the United
States of America in connection with the military and paramilitary activities in
and against Nicaragua the subject of this case;
3. Decides that the United States of America, by training, arming, equipping,
financing and supplying the contra forces or otherwise encouraging, supporting
and aiding military and paramilitary activities in and against Nicaragua, has
acted, against the Republic of Nicaragua, in breach of its obligation
under customary international law not to intervene in the affairs of another
State;
4. Decides that the United States of America, by certain attacks on Nicaraguan
territory in 1983-1984, namely attacks on Puerto Sandino on 13 September and
14 October 1983, an attack on Corinto on 10 October 1983; an attack on Potosi
Naval Base on 4/5 January 1984, an attack on San Juan del Sur on 7 March
1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and
an attack on San Juan del Norte on 9 April 1984; and further by those acts of
intervention referred to in subparagraph (3) hereof which involve the use of
force, has acted, against the Republic of Nicaragua, in breach of its obligation
under customary international law not to use force against another State;
5. Decides that the United States of America, by directing or authorizing over
Rights of Nicaraguan territory, and by the acts imputable to the United States
referred to in subparagraph (4) hereof, has acted, against the Republic of
 Nicaragua, in breach of its obligation under customary international law not
to violate the sovereignty of another State;
6. Decides that, by laying mines in the internal or territorial waters of the Republic
of Nicaragua during the first months of 1984, the United States of America has
acted, against the Republic of Nicaragua, in breach of its obligations
under customary international law not to use force against another State,
not to intervene in its affairs, not to violate its sovereignty and not to
interrupt peaceful maritime commerce;
7. Decides that, by the acts referred to in subparagraph (6) hereof the United
States of America has acted, against the Republic of Nicaragua, in breach of its
obligations under Article XIX of the Treaty of Friendship, Commerce and
Navigation between the United States of America and the Republic of
Nicaragua signed at Managua on 21 January 1956;
8. Decides that the United States of America, by failing to make known the
existence and location of the mines laid by it, referred to in subparagraph (6)
hereof, has acted in breach of its obligations under customary international law
in this respect;
9. Finds that the United States of America, by producing in 1983 a manual entitled
'Operaciones sicológicas en guerra de guerrillas', and disseminating it to contra
forces, has encouraged the commission by them of acts contrary to general
principles of humanitarian law; but does not find a basis for concluding that any
such acts which may have been committed are imputable to the United States
of America as acts of the United States of America;
10. Decides that the United States of America, by the attacks on Nicaraguan
territory referred to in subparagraph (4) hereof, and by declaring a general
embargo on trade with Nicaragua on 1 May 1985, has committed acts
calculated to deprive of its object and purpose the Treaty of Friendship,
Commerce and Navigation between the Parties signed at Managua on 21
January 1956;
11. Decides that the United States of America, by the attacks on Nicaraguan
territory referred to in subparagraph (4) hereof, and by declaring a general
embargo on trade with Nicaragua on 1 May 1985, has acted in breach of its
obligations under Article XIX of the Treaty of Friendship, Commerce and
Navigation between the Parties signed at Managua on 21 January 1956;
12. Decides that the United States of America is under a duty immediately to cease
and to refrain from all such acts as may constitute breaches of the foregoing
legal obligations;
13. Decides that the United States of America is under an obligation to make
reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the
breaches of obligations under customary international law enumerated above;
14. Decides that the United States of America is under an obligation to make
reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the
breaches of the Treaty of Friendship, Commerce and Navigation between the
Parties signed at Managua on 21 January 1956;
15. Decides that the form and amount of such reparation, failing agreement
between the Parties, will be settled by the Court, and reserves for this purpose
the subsequent procedure in the case;
16. Recalls to both Parties their obligation to seek a solution to their disputes by
peaceful means in accordance with international law.[11]
Legal clarification and importance[edit]
The ruling did in many ways clarify issues surrounding prohibition of the use of force and
the right of self-defence.[18] Arming and training the Contra was found to be in breach
with principles of non-intervention and prohibition of use of force, as was laying mines in
Nicaraguan territorial waters.
Nicaragua's dealings with the armed opposition in El Salvador, although it might be
considered a breach with the principle of non-intervention and the prohibition of use of
force, did not constitute "an armed attack", which is the wording in article 51 justifying
the right of self-defence.
The Court considered also the United States claim to be acting in collective self-defence
of El Salvador and found the conditions for this not reached as El Salvador never
requested the assistance of the United States on the grounds of self-defence.
In regards to laying mines, "...the laying of mines in the waters of another State without
any warning or notification is not only an unlawful act but also a breach of the principles
of humanitarian law underlying the Hague Convention No. VIII of 1907."

How the judges voted[edit]

Votes of Judges - Nicaragua v. United States

Judge 1 2 3

President Nagendra Singh (India) Yes Yes Yes

Vice-President de Lacharrière (France) Yes Yes Yes

Judge Ago (Italy) Yes Yes Yes

Judge Elias (Nigeria) No Yes Yes

Judge Lachs (Poland) Yes Yes Yes

Judge Mbaye (Senegal) Yes Yes Yes

Judge Ni (People's Republic of China) No Yes Yes

 Judge Oda (Japan) Yes No No

Judge Ruda (Argentina) No Yes Yes

Judge Schwebel (United States) Yes No No

Judge Sette-Camara (Brazil) No Yes Yes

Judge Sir Robert Jennings (United Kingdom) Yes No No

Judge ad hoc Colliard (France) Yes Yes Yes

Dissent[edit]
Judge Schwebel's dissent was twice as long as the actual judgment. Judge Schwebel
argued that the Sandinista government came to power with support of foreign
intervention similar to what it was now complaining about. He argued that the Sandinista
government achieved international recognition and received large amounts of foreign
aid in exchange for commitments they subsequently violated. He cited evidence that the
Sandinista government had indeed supported the rebels in El Salvador and noted that
Nicaragua’s own CIA witness contradicted their assertions that they had never at any
point supported the rebels in El Salvador. The CIA witness said that there was no
evidence of weapon shipments since early 1981, but Schwebel argued that he could not
credibly explained why opponents of Contra aid such as Congressman Boland, who
also saw the evidence, believed that weapon shipments were ongoing. He further
argued that Daniel Ortega publicly admitted such shipments in statements in 1985 and
1986. Furthermore, there was no dispute that the leadership of the rebels operated in
Nicaragua from time to time.
He stated that in August 1981 the U.S. offered to resume aid to Nicaragua and to not
support regime change in exchange for Nicaraguan commitments to not support the
rebels in El Salvador. These proposals were rejected by the Sandinistas, and judge
Schwebel argued that the U.S. was entitled to take action in collective self-defense with
El Salvador by authorizing Contra aid in December 1981. He stated that further U.S.
proposals to resolve the issue made in early 1982 were also ignored by the Sandinistas.
The Sandinista government in 1983 began advancing proposals in which it would
undertake not to support the rebels, but Schwebel noted that these were coupled with
demands that the U.S. cease supporting the lawful government of El Salvador. The
judge noted that since early 1985 the U.S. had increasingly made regime change a
primary objective but argued this was not inconsistent with self-defense because it was
reasonable to believe that Nicaragua would not maintain any commitments unless
Sandinista power was diluted.
The judge said that both sides of the wars in Nicaragua and El Salvador had committed
atrocities. He said the U.S. mining of Nicaraguan harbors was unlawful in regard to third
parties, but not Nicaragua.[19]

Certain witnesses against the US[edit]

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First witness: Commander Luis Carrion[edit]

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

1. the destruction of two key bridges in the northern part of Nicaragua, and
2. the planting of bombs in Nicaraguan civil aircraft in Mexico and in the baggage
area of a Nicaraguan port.
The United States Central Intelligence Agency, and Argentine military officers financed
by the CIA, were engaged in the training of the contra forces. The guerrillas received
both basic infantry training as well as training in specialized sabotage and demolition for
"special operation groups".
The U.S. Congress apportioned new funds for the contras to the amount of $30 million
at the end of 1982. This made it possible for the contra forces to launch a military
offensive against Nicaragua. According to Commander Carrion, the offensive known as
"C Plan" had the objective of capturing the Nicaraguan border town of Jalapa in order to
install a provisional government, which could receive international recognition. This plan
failed.
After the failure of the Jalapa offensive the contras changed their tactics from frontal
assaults to economic warfare against State farms, coffee plantations, grain storage
centers, road junctions, etc.
The CIA began to support the contras by setting up and coordinating a communications
and logistical system. The CIA supplied aircraft and the construction of airfields in the
Honduran border area next to Nicaragua. This allowed the contras to carry out deep
penetration raids into the more developed and populated areas of the Nicaraguan
interior. U.S. Army engineers created this airfield. The purpose of these deep
penetration attacks upon economic targets was to weaken the Nicaraguan economy,
causing a shortages of goods.
As a part of its training program for the contras, the CIA prepared and distributed a
manual entitled Psychological Operations in Guerrilla Warfare. This manual included
instructions in the "use of implicit and explicit terror", and in the "selective use of
violence for propaganda effects". Commander Carrion explained that the manual was
given to the Contras, "All of these terrorist instructions have the main purpose of
alienating the population from the Government through creating a climate of terror and
fear, so that nobody would dare support the Government". The manual calls for the
"neutralization" (i.e. assassination) of Sandinista local government officials, judges, etc.
for purposes of intimidation. It was openly admitted by the President Reagan in a press
conference that the manual had been prepared by a CIA contract employee.
After the United States Congress approved an additional $24 million aid to the contras in
December 1983, a new offensive was launched, named Plan Sierra. This offensive
involved approximately 7000 members of the contra forces. As in earlier attacks, the
initial objective of this offensive was to capture the border town of Jalapa to install a
provisional government, which the CIA informed the contras would be immediately
recognized by the United States Government. But this contra offensive was also
repulsed by the Nicaraguan government forces.
In the beginning of 1984, the contras made a major effort to prevent the harvesting of
the coffee crop, which is one of Nicaragua's most important export products. Coffee
plantations and state farms where coffee is grown were attacked, vehicles were
destroyed, and coffee farmers were killed.
Commander Carrion testified that the ability of the contras to carry out military
operations was completely dependent upon United States funding, training and logistical
support. Carrion stated that the U.S. Government supplied the contras with uniforms,
weapons, communications equipment, intelligence, training, and coordination in using
this material aid.
In September 1983, CIA operatives blew up Nicaragua's only oil pipeline, which was
used to transport oil from off-loading facilities to storage tanks on shore. The United
States was also directly involved in a large scale sabotage operation directed against
Nicaragua's oil storage facilities. This last attack was carried out by CIA contract
employees termed by that organization as "Unilaterally Controlled Latin Assets"
(UCLAs). The CIA personnel were also directly involved in a helicopter attack on a
Nicaraguan army training camp. One of the helicopters was shot down by Nicaraguan
ground fire resulting in the death of two U.S. citizens.
Commander Carrion testified that the United States was involved in the mining of
Nicaragua's ports between February - April 1984. The mining operation was carried out
by CIA ships directing the operation from international waters, while the actual mining
was carried out by CIA employees on board speedboats operating inshore. After the
mine-laying was completed the speedboats returned to the mother vessel.[20][21]
Carrion stated that 3,886 people had been killed and 4,731 wounded in the four years
since the contras began their attacks. Carrion estimated property damage at $375
million.[22]
Commander Carrion stated if the United States stopped aid, support and training, this
would result in the end of the contras military activities within three months. Asked why
he was so sure of this, Commander Carrion answered, "Well, because the contras are
an artificial force, artificially set up by the United States, that exists only because it
counts on United States direction, on United States training, on United States
assistance, on United States weapons, on United States everything...Without that kind
of support and direction the contras would simply disband, disorganize, and thus lose
their military capacity in a very short time".[20]

Second witness: Dr. David MacMichael[edit]

David MacMichael was an expert on counter-insurgency, guerrilla warfare, and Latin
American affairs, he was also a witness because he was closely involved with U.S.
intelligence activities as a contract employee from March 1981 - April 1983. MacMichael
worked for Stanford Research Institute, which was contracted by the U.S. Department of
Defense. After this he worked two years for the CIA as a "senior estimates officer",
preparing the National Intelligence Estimate. Dr. MacMichael's responsibility was
centered upon Central America. He had top-secret clearance. He was qualified and
authorized to have access to all relevant U.S. intelligence concerning Central America,
including intelligence relating to alleged Nicaraguan support for, and arms shipments to
the anti-Government insurgents in El Salvador. He took part in high level meetings of
the Latin American affairs office of the CIA. Including a fall 1981 meeting, which
submitted the initial plan to set up a 1500-man covert force on the Nicaraguan border,
shipping arms from Nicaragua to the El Salvador insurgents. This plan was approved by
President Reagan.[22][23]
"The overall purpose (for the creation of the contras) was to weaken, even destabilize
the Nicaraguan Government and thus reduce the menace it allegedly posed to the
United States' interests in Central America..."
Contra paramilitary actions would "hopefully provoke cross-border attacks by
Nicaraguan forces and thus serve to demonstrate Nicaragua's aggressive nature and
possibly call into play the Organization of American States' provisions (regarding
collective self-defense). It was hoped that the Nicaraguan Government would clamp
down on civil liberties within Nicaragua itself, arresting its opposition, so demonstrating
its allegedly inherent totalitarian nature and thus increase domestic dissent within the
country, and further that there would be reaction against United States citizens,
particularly against United States diplomatic personnel within Nicaragua and thus to
demonstrate the hostility of Nicaragua towards the United States".
In response to repeated questions as to whether there was any substantial evidence of
the supply of weapons to the guerrilla movement in El Salvador- either directly by the
Nicaraguan Government itself-or with the knowledge, approval or authorization of the
Nicaraguan Government of either non-official Nicaraguan sources, or by third country
nationals inside or outside Nicaragua, using Nicaraguan territory for this purpose, Dr.
MacMichael answered that there was no such evidence. In the opinion of the witness it
would not have been possible for Nicaragua to send arms to the insurgents in El
Salvador in significant amounts (as alleged by the U.S. Government) and over a
prolonged period, without this being detected by the U.S. intelligence network in the
area...Counsel for Nicaragua, asked the witness several times whether any detection of
arms shipments by or through Nicaragua had taken place during the period he was
employed by the CIA. (MacMichael) answered repeatedly that there was no such
evidence. He also stated that after his employment had terminated, nothing had
occurred that would cause him to change his opinion. He termed the evidence that had
been publicly disclosed by the U.S. Government concerning Nicaraguan arms deliveries
to the El Salvadoran insurgents as both "scanty" and "unreliable". The witness did
however state that based on evidence, which had been gathered immediately prior to
his employment with the CIA, evidence he had already actually seen, there was
substantial evidence that arms shipments were reaching El Salvador from Nicaragua -
with the probable involvement and complicity of the Nicaraguan Government - through
late 1980 up until the spring of 1981....But this evidence, which most importantly had
included actual seizures of weapons, which could be traced to Nicaragua, as well as
documentary evidence and other sources, had completely ceased by early 1981. Since
then, no evidence linking Nicaragua to shipments of arms in any substantial quantities
had resumed coming in.[23]

Third witness: Professor Michael Glennon[edit]

Mr. Glennon testified about a fact-finding mission he had conducted in Nicaragua to
investigate alleged human rights violations committed by the contra guerrillas,
sponsored by the International Human Rights Law Group, and the Washington Office on
Latin America. Glennon conducted the investigation with Mr. Donald T. Fox who is a
New York attorney and a member of the International Commission of Jurists.
They traveled to Nicaragua, visiting the northern region where the majority of contra
military operations took place. The two lawyers interviewed around 36 northern frontier
residents who had direct experience with the contras. They also spoke with the U.S.
Ambassador to Nicaragua, and with senior officials of the U.S. Department of State in
Washington after returning to the United States.
No hearsay evidence was accepted. Professor Glennon stated that those interviewed
were closely questioned and their evidence was carefully cross-checked with available
documentary evidence. Doubtful "testimonies" were rejected, and the results were
published in April 1985. The conclusions of the report were summarized by Glennon in
Court:
"We found that there is substantial credible evidence that the contras were engaged
with some frequency in acts of terroristic violence directed at Nicaraguan civilians.
These are individuals who have no connection with the war effort-persons with no
economic, political or military significance. These are Individuals who are not caught in
the cross-fire between Government and contra forces, but rather individuals who are
deliberately targeted by the contras for acts of terror. "Terror" was used in the same
sense as in recently enacted United States law, i.e. "an activity that involves a violent
act or an act dangerous to human life that Is a violation or the criminal law, and appears
to be intended to intimidate or coerce a civilian population, to Influence the policy of a
government by intimidation or coercion, or to affect the conduct of a government by
assassination or kidnapping".
In talks with U.S. State Department officials, at those in Managua U.S. Embassy, and
with officials in Washington, Professor Glennon had inquired whether the U.S.
Government had ever investigated human rights abuses by the contras. Professor
Glennon testified that no such investigation had ever been conducted, because in the
words of a ranking State Department official who he could not name, the U.S.
Government maintained a policy of "intentional ignorance" on the matter. State
Department officials in Washington- had admitted to Glennon that "it was clear that the
level of atrocities was enormous". Those words "enormous" and "atrocities" were the
ranking State Department official's words.[24]
Fourth witness: Father Jean Loison[edit]
Father Jean Loison was a French priest who worked as a nurse in a hospital in the
northern frontier region close to Honduras.
Asked whether the contras engaged in acts of violence directed against the civilian
population, Father Loison answered:
"Yes, I could give you several examples. Near Quilali, at about 30 kilometers east of
Quilali, there was a little village called El Coco. The contras arrived, they devastated it,
they destroyed and burned everything. They arrived in front of a little house and turned
their machinegun fire on it, without bothering to check if there were any people inside.
Two children, who had taken fright and hidden under a bed, were hit. I could say the
same thing of a man and woman who were hit, this was in the little co-operative of
Sacadias Olivas. It was just the same. They too had taken fright and got into bed. Unlike
El Coco, the contras had just been on the attack, they had encountered resistance and
were now in flight. During their flight they went into a house, and seeing that there were
people there, they threw grenade. The man and the woman were killed and one of the
children was injured."
About contra kidnappings:
"I would say that kidnappings are one of the reasons why some of the peasants have
formed themselves into groups. Here (indicates a point on the map) is Quilali. Between
Quilali and Uilili, in this region to the north, there are hardly any peasants left of any age
to bear arms, because they have all been carried off"."
Father Loison described many examples of violence, mostly indiscriminate, directed at
the civilian population in the region where he resides. The picture that emerges from his
testimony is that the contras engage in brutal violation of minimum standards of
humanity. He described murders of unarmed civilians, including women and children,
rape followed in many instances by torture or murder, and indiscriminate terror designed
to coerce the civilian population. His testimony was similar to various reports including
the International Human Rights Law Group, Amnesty International, and others.[25]

Fifth witness: William Hüper[edit]

William Hüper was Nicaragua's Minister of Finance. He testified about Nicaragua
economic damage, including the loss of fuel as a result of the attack in the oil storage
facilities at Corinto, the damage to Nicaragua's commerce as a result of the mining of its
ports, and other economic damage.[26]

UN voting[edit]
After five vetoes in the Security Council between 1982 and 1985 of resolutions
concerning the situation in Nicaragua [3], the United States made one final veto on 28
October 1986[27] (France, Thailand, and United Kingdom abstaining) of a resolution
calling for full and immediate compliance with the judgment.[28]
Nicaragua brought the matter to the U.N. Security Council, where the United States
vetoed a resolution (11 to 1, 3 abstentions) calling on all states to observe international
law. Nicaragua also turned to the General Assembly, which passed a resolution 94 to 3
calling for compliance with the World Court ruling. Two states, Israel and El Salvador,
joined the United States in opposition. At that time, El Salvador was receiving
substantial funding and military advisement from the U.S., which was aiming to crush a
Sandinista-like revolutionary movement by the FMLN. At the same session, Nicaragua
called upon the U.N. to send an independent fact-finding mission to the border to secure
international monitoring of the borders after a conflict there; the proposal was rejected
by Honduras with U.S. backing. A year later, on November 12, 1987, the General
Assembly again called for "full and immediate compliance" with the World Court
decision. This time only Israel joined the United States in opposing adherence to the
ruling.[29][30]

U.S. defense and response[edit]

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

Significance[edit]
Third-party interpretations[edit]
Professor of International Law, Anthony D'Amato, writing for the American Journal of
International Law (Vol. 80, 1986), commented on this case, stating that "...law would
collapse if defendants could only be sued when they agreed to be sued, and the proper
measurement of that collapse would be not just the drastically diminished number of
cases but also the necessary restructuring of a vast system of legal transactions and
relations predicated on the availability of courts as a last resort. There would be talk of a
return to the law of the jungle." The author also notes that the case resulted in an
unusual candor. A month after the announced withdrawal, Secretary of State Shultz
suggested, and President Reagan later confirmed in a press conference, that the goal of
U.S. policy was to overthrow the Sandinista Government of Nicaragua.[32] Although this
was what Nicaragua had alleged to be the U.S. goal, while the case was actively
pending, the United States could not concede that goal without serious risk of
undermining its litigating position.[33]
East Timor (Portugal v. Australia)

OVERVIEW OF THE CASE

On 22 February 1991, Portugal filed an Application instituting proceedings against Australia

concerning “certain activities of Australia with respect to East Timor”, in relation to the conclusion, on
11 December 1989, of a treaty between Australia and Indonesia which created a Zone of Co-
operation in a maritime area between “the Indonesian Province of East Timor and Northern
Australia”. According to the Application, Australia had by its conduct failed to observe the obligation
to respect the duties and powers of Portugal as the Administering Power of East Timor and the right
of the people of East Timor to self-determination. In consequence, according to the Application,
Australia had incurred international responsibility vis-à-vis the people of both East Timor and
Portugal. As the basis for the jurisdiction of the Court, the Application referred to the declarations by
which the two States had accepted the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of its Statute. In its Counter-Memorial, Australia raised questions concerning the
jurisdiction of the Court and the admissibility of the Application.

The Court delivered its Judgment on 30 June 1995. It began by considering Australia’s objection that
there was in reality no dispute between itself and Portugal. Australia contended that the case as
presented by Portugal was artificially limited to the question of the lawfulness of Australia’s conduct,
and that the true respondent was Indonesia, not Australia, observing that Portugal and itself had
accepted the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute, but
that Indonesia had not. The Court found in that respect that there was a legal dispute between the
two States. The Court then considered Australia's principal objection, to the effect that Portugal’s
Application would require the Court to determine the rights and obligations of Indonesia. Australia
contended that the Court would not be able to act if, in order to do so, it were required to rule on the
lawfulness of Indonesia’s entry into and continuing presence in East Timor, on the validity of the
1989 Treaty between Australia and Indonesia, or on the rights and obligations of Indonesia under
that Treaty, even if the Court did not have to determine its validity. In support of its argument,
Australia referred to the Court’s Judgment in the case concerningMonetary Gold Removed from
Rome in 1943.

After having carefully considered the arguments advanced by Portugal which sought to separate
Australia’s behaviour from that of Indonesia, the Court concluded that Australia’s behaviour could
not be assessed without first entering into the question why it was that Indonesia could not lawfully
have concluded the 1989 Treaty, while Portugal allegedly could have done so ; the very subject-
matter of the Court’s decision would necessarily be a determination whether, having regard to the
circumstances in which Indonesia entered and remained in East Timor, it could or could not have
acquired the power to enter into treaties on behalf of East Timor relating to the resources of the
continental shelf. The Court took the view that it could not make such a determination in the absence
of the consent of Indonesia.

The Court then rejected Portugal’s additional argument that the rights which Australia allegedly
breached were rights erga omnes and that accordingly Portugal could require it, individually, to
respect them. In the Court’s view, Portugal’s assertion that the right of peoples to self-determination
had an erga omnes character, was irreproachable, and the principle of self-determination of peoples
had been recognized by the Charter of the United Nations and in the jurisprudence of the Court, and
was one of the essential principles of contemporary international law. However, the Court
considered that the erga omnes character of a norm and the rule of consent to jurisdiction were two
different things, and that it could not in any event rule on the lawfulness of the conduct of a State
when its judgment would imply an evaluation of the lawfulness of another State which was not a
party to the case.

The Court then considered another argument of Portugal which rested on the premise that the
United Nations resolutions, and in particular those of the Security Council, could be read as
imposing an obligation on States not to recognize any authority on the part of Indonesia over East
Timor and, where the latter is concerned, to deal only with Portugal. Portugal maintained that those
resolutions would constitute “givens” on the content of which the Court would not have to decide de
novo. The Court took note, in particular, of the fact that for the two Parties, the territory of East Timor
remained a non-self-governing territory and its people had the right to self-determination, but
considered that the resolutions could not be regarded as “givens” constituting a sufficient basis for
determining the dispute between the Parties. It followed from all the foregoing considerations that
the Court would necessarily first have to rule upon the lawfulness of Indonesia’s conduct.
Indonesia’s rights and obligations would thus constitute the very subject-matter of such a judgment
made in the absence of that State’s consent, which would run directly counter to the principle
according to which “the Court can only exercise jurisdiction over a State with its consent”. The Court
accordingly found that it was not required to consider Australia’s other objections and that it could
not rule on Portugal’s claims on the merits.

Corfu Channel Case (United

Kingdom v. Albania)
International Court of Justice
1949 I.C.J. 4, 22

Facts
On May 15, 1946, two British ships passed through Albania’s North Corfu
Channel where they were fired at by an Albanian battery. Following this incident,
the United Kingdom (plaintiff) and Albania (defendant) entered into diplomatic
discussions about the right of British ships to pass peacefully through Albanian
waters. Albania maintained that the ships should not pass through without
providing prior notification to the Albanian government. However, the United
Kingdom maintained it had a right under international law to innocently pass
through the straits. Between May 15, 1946 and October 22, 1946, the Albanian
government allegedly placed mines in the Corfu Channel in Albanian territorial
waters. Albania was at war with Greece, and the mines were allegedly part of its
defense. On October 22nd, British warships attempted to again pass through the
straits, but were destroyed by the mines, with loss of human life. The United
Kingdom brought suit in the International Court of Justice (ICJ) on the ground
that Albania had a duty to warn the approaching British ships of the mines. It
sought damages from Albania. However, Albania argued that its territorial rights
had previously been violated by the British ships passing through its straits on
May 15, 1946, and that it was entitled to a satisfaction.