US Military Intervention in Nicaragua: A Case of Collective Self-Defense?, Exercises of Law

Download US Military Intervention in Nicaragua: A Case of Collective Self-Defense? and more Exercises Law in PDF only on Docsity! INTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS. ADVISORY OPINIONS AND ORDERS CASE CONCERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES OF AMERICA) M ERITS JUDGMENT OF 27 JUNE 1986 COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRÊTS. AVIS CONSULTATIFS ET ORDONNANCES AFFAIRE DES ACTIVITÉS MILITAIRES ET PARAMILITAIRES AU NICARAGUA ET CONTRE CELUI-CI (NICARAGUA c. ÉTATS-UNIS D'AMÉRIQUE) FOND ARRÊT DC' 27 JUIN 1986 Official citation : Militarv and Puramilitary Activities in und aguinst Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 14. Mode officiel de citation : Activités militaires et parumilitaires au Nicaragua et contre celui-ci (Nicaragua c. Etats-Unis d'Amérique), fond, urrêr. C.I.J. Recueil 1986, p. 14. Sales nuniber No de veiite : Principle prohibiting recourse to the threat or use of force in international rela- tions - Inherent right of self-defence - Conditions for exercise - Individual and collectiveseif-defence - Response to armed attack - Declarn tion of having been the object of armed attack and request for measures in the exercise of collective self- defence. Principle of non-intewention - Content of theprinciple - Opinio juris -+State practice - Question of collective counter-measures in response to conduct not &ounting toarmed atÏack. State sovereignty - Territory - Airspace - Interna1 and territorial waters - Right of access of foreign vessels. Principles of humanitarian law - 1949 Geneva Conventions - Minimum rules applicable - Duty of States not to encourage disrespect for humanitarian law - Notification of existence and location of mines. Respect for human rights - Right of States to choose political system, ideology and alliances. 1956 Treaty of Frienhhip, Commerce and Navigation - Jurisdiction of the Court - Obligation under customary international law not to commit acts calculated to defeat object andpurpose of a treaty - Review of relevant treaty provisions. Claim for reparation. Peaceful settlement of disputes. JUDGMENT Present : President NAGENDRA SINGH ; Vice-President DE LACHARRIÈRE ; Judges LACHS, RUDA, ELIAS, ODA, AGO, SETTE-CAMARA, SCHWEBEL, Sir Robert JENNINGS, MBAYE, BEDJAOUI, NI, EVENSEN ; Judge ad hoc COLLIARD ; Registrar TORRES BERNARDEZ. In the case concerning military and paramilitary activities in and against Nicaragua, between the Republic of Nicaragua, represented by H.E. Mr. Carlos Argüello Gomez, Ambassador, as Agent and Counsel, Mr. Ian Brownlie, Q.C., F.B.A., Chichele Professor of Public International Law in the University of Oxford ; Fellow of Ail Souls College, Oxford, Hon. Abram Chayes, Felix Frankfurter Professor of Law, Harvard Law School ; Fellow, American Academy of Arts and Sciences, Mr. Alain Pellet, Professor at the University of Paris-Nord and the Institut d'études politiques de Paris, 16 MILITARY AND PARAMILlTARY ACTIVITIES (JUDGMENT) Mr. Paul S. Reichler, Reichler and Appelbaum, Washington, D.C. ; Member of the Bar of the United States Supreme Court ; Member of the Bar of the District of Columbia, as Counsel and Advocates, Mr. Augusto Zamora Rodriguez, Legal Adviser to the Foreign Ministry of the Republic of Nicaragua, Miss Judith C. Appelbaum, Reichler and Appelbaum, Washington, D.C. ; Member of the Bars of the District of Columbia and the State of Califor- nia, Mr. David Wippman, Reichler and Appelbaum, Washington, D.C., as Counsel, and the United States of America, composed as above, delivers the following Judgment : 1. On 9 Apnl 1984 the Ambassador of the Republic of Nicaragua to the Netherlands filed in the Registry of the Court an Application instituting pro- ceedings against the United States of America in respect of a dispute concerning responsibility for military and paramilitary activities in and against Nicaragua. In order to found the jurisdiction of the Court the Application relied on declara- tions made by the Parties accepting the compulsory jurisdiction of the Court under Article 36 of the Statute. 2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was at once communicated to the Government of the United States of America. In accordance with paragraph 3 of that Article, al1 other States entitled to appear before the Court were notified of the Application. 3. At the same time as the Application was filed, the Republic of Nicaragua also filed a request for the indication of provisional measures under Article 41 of the Statute. By an Order dated 10 May 1984, the Court rejected a request made by the United States for removal of the case from the list, indicated, pending its final decision in the proceedings, certain provisional measures, and decided that, until the Court delivers its final judgment in the case, it would keep the matters covered by the Order continuously under review. 4. By the said Order of 10 May 1984, the Court further decided that the wntten proceedings in the case should first be addressed to the questions of the jurisdiction of the Court to entertain the dispute and of the admissibility of the Application. By an Order dated 14 May 1984, the President of the Court fixed 30 June 1984 as time-limit for the filing of a Memorial by the Republic of Nica- ragua and 17 August 1984 as time-limit for the filing of a Counter-Memonal by the United States of America on the questions of jurisdiction and admissibility and these pleadings were duly filed within the time-limits fixed. 5. In its Memorial on jurisdiction and admissibility, the Republic of Nicara- gua contended that, in addition to the basis of jurisdiction relied on in the Appli- cation, a Treaty of Friendship, Commerce and Navigation signed by the Parties in 1956 provides an independent basis for jurisdiction under Article 36, para- graph 1, of the Statute of the Court. 6. Since the Court did not include upon the bench a judge of Nicaraguan nationality, Nicaragua, by a letter dated 3 August 1984, exercised its right under Article 31, paragraph 2, of the Statute of the Court to choose ajudge adhoc to sit in the case. The person so designated was Professor Claude-Albert Colliard. 7. On 15 August 1984, two days before the closure of the written proceedings on the questions of jurisdiction and adrnissibility, the Republic of El Salvador filed a Declaration of Intervention in the case under Article 63 of the Statute. Having been supplied with the written observations of the Parties on the Decla- ration pursuant to Article 83 of the Rules of Court, the Court, by an Order dated 4October 1984, decided not to hold a hearing on the Declaration of Intervention, and decided that that Declaration was inadmissible inasrnuch as it related to the phase of the proceedings then current. 8. On 8-10 October and 15-18 October 1984 the Court held public hearings at which it heard the argument of the Parties on the questions of the jurisdiction of the Court to entertain the dispute and the adrnissibility of the Application. 9. By a Judgrnent dated 26 Novernber 1984, the Court found that it had juris- diction to entertain the Application on the basis of Article 36, paragraphs 2 and 5, of the Statute of the Court ; that it had jurisdiction to entertain the Appli- cation in so far as it relates to a dispute concerning the interpretation or applica- tion of the Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua of 21 January 1956, on the basis of Article XXIV of that Treaty ; that it had junsdiction to entertain the case ; and that the Application was admissible. 10. By a letter dated 18 January 1985 the Agent of the United States referred to the Court's Judgrnent of 26 Novernber 1984 and inforrned the Court as fol- lows : "the United States is constrained toconclude that thejudgment of the Court was clearly and manifestly erroneous as to both fact and law. The United States rernains firrnly of the view, for the reasons given in its written and oral pleadings that the Court is without jurisdiction to entertain the dispute, and that the Nicaraguan application of 9 April 1984 is inadmissible. Accord- ingly, it is my duty to inforrn you that the United States intends not to par- ticipate in any further proceedings in connection with this case, and reserves its rights in respect of any decision by the Court regarding Nicaragua's clairns." 11. By an Order dated 22 January 1985 the President of the Court, after referring to the letter from the United States Agent, fixed 30 April 1985 as tirne-limit for a Mernorial of Nicaragua and 31 May 1985 as tirne-limit for a Counter-Mernorial of the United States of Arnerica on the rnerits of the dispute. The Mernonal of Nicaragua was filed within the tirne-limit so fixed ; no pleading was filed by the United States of America, nor did it make any request for extension of the tirne-lirnit. In its Mernorial, cornrnunicated to the United States pursuant to Article 43 of the Statute of the Court, Nicaragua invoked Article 53 of the Statute and called upon the Court to decide the case despite the failure of the Respondent to appear and defend. States has violated the obligations of international law indicated in this Memorial, and that in particular respects the United States is in continuing violation of those obligations. Second : the Court is requested to statein clear terms the obligation which the United States bears to bring to an end the aforesaid breaches of interna- tional law. Third : the Court is requested to adjudge and declare that, in consequence of the violations of international law indicated in this Memorial, compensa- tion is due to Nicaragua, both on its own behalf and in respect of wrongs inflicted upon its nationals ; and the Court is requested further to receive evidence and to determine, in a subsequent phase of the present proceed- ings, the quantum of damages to be assessed as the compensation due to the Republic of Nicaragua. Fourth : without prejudice to the foregoing request, the Court is requested to award to the Republic of Nicaragua the sum of 370,200,000 United States dollars, which sum constitutes the minimum valuation of the direct dam- ages, with the exception of damages for killing nationals of Nicaragua, resulting from the violations of international law indicated in the substance of this Memorial. With reference to the fourth request, the Republic of Nicaragua reserves the right to present evidence and argument, with the purpose of elaborating the minimum (and in that sense provisional) valuation of direct damages and, further, with the purpose of claiming compensation for the killing of nationals of Nicaragua and consequential loss in accordance with the prin- ciples of international law in respect of the violations of international law generally, in a subsequent phase of the present proceedings in case the Court accedes to the third request of the Republic of Nicaragua." 16. At the conclusion of the last statement made on behalf of Nicaragua at the hearing, the final submissions of Nicaragua were presented, which submissions were identical to those contained in the Memorial on the merits and set out above. 17. No pleadings on the merits having been filed by the United States of America, which was also not represented at the oral proceedings of Septem- ber 1985, no submissions on the merits were presented on its behalf. 18. The dispute before the Court between Nicaragua and the United States concerns events in Nicaragua subsequent to the fa11 of the Govern- ment of President Anastasio Somoza Debayle in Nicaragua in July 1979, and activities of the Government of the United States in relation to Nicara- gua since that time. Following the departure of President Somoza, a Junta of National Reconstruction and an 18-member government was installed by the body which had led the armed opposition to President Somoza, the Frente Sandinista de Liberacibn Nacional (FSLN). That body had initially an extensive share in the new government, described as a "democratic coalition", and as a result of later resignations and reshuffles, became almost its sole component. Certain opponents of the new Government, primarily supporters of the former Somoza Government and in particular ex-members of the National Guard, formed themselves into irregular military forces, and commenced a policy of armed opposition, though initially on a limited scale. 19. The attitude of the United States Government to the "democratic coalition government" was at first favourable ; and a programme of eco- nomic aid to Nicaragua was adopted. However by 1981 this attitude had changed. United States aid to Nicaragua was suspended in January 1981 and terminated in April 198 1. According to the United States, the reason for this change of attitude was reports of involvement of the Government of Nicaragua in logistical support, including provision of arms, for guer- rillas in El Salvador. There was however no interruption in diplomatic relations, which have continued to be maintained up to the present time. In September 1981, according to testimony called by Nicaragua, it was decided to plan and undertake activities directed against Nicaragua. 20. The armed opposition to the new Government in Nicaragua, which originally ~om~risedvarious movements, subsequently became organized into two main groups : the Fuerza Democratica Nicaragüense (FDN) and the Alianza Revolucionaria Democratica (ARDE). The first of these grew from 1981 onwards into a trained fighting force, operating along the borders with Honduras ; the second, formed in 1982, operated along the borders with Costa Rica. The precise extent to which, and manner in which, the United States Government contributed to bringing about these developments will be studied more closely later in the present Judgment. However, after an initial period in which the "covert" operations of United States personnel and persons in their pay were kept from becoming public knowledge, it was made clear, not only in the United States press, but also in Congress and in official statements by the President and high United States officiais, that the United States Government had been giving sup- port to the contras, a term employed to describe those fighting against the present Nicaraguan Government. In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting "directly or indirectly. military or paramilitary operations in Nicaragua". According to Nicara- gua, the contras have caused it considerable material damage and wide- spread loss of life, and have also committed such acts as killing of pris- oners, indiscriminate killing of civilians, torture, rape and kidnapping. It is contended by Nicaragua that the United States Government is effectively in control of the contras, that it devised their strategy and directed their tactics, and that the purpose of that Government was, from the beginning, to overthrow the Government of Nicaragua. 21. Nicaragua claims furthermore that certain military or paramilitary operations against it were carried out, not by the contras, who at the time claimed responsibility, but by persons in the pay of the United States 22 MILITARY AND PARAMILITARY ACTIVITIES (JUDGMENT) Government, and under the direct command of United States personnel, who also participated to some extent in the operations. These operations will also be more closely examined below in order to determine their legal significance and the responsibility for them ; they include the mining of certain Nicaraguan ports in early 1984, and attacks on ports, oil installa- tions, a naval base, etc. Nicaragua has also complained of overflights of its territory by United States aircraft, not only for purposes of intelligence- gathering and supply to the contras in the field, but also in order to intimidate the population. 22. In the economic field, Nicaragua claims that the United States has withdrawn its own aid to Nicaragua, drastically reduced the quota for imports of sugar from Nicaragua to the United States, and imposed a trade embargo ; it has also used its influence in the Inter-American Develop- ment Bank and the International Bank for Reconstruction and Develop- ment to block the provision of loans to Nicaragua. 23. As a matter of law, Nicaragua claims, inter alia, that the United States has acted in violation of Article 2, paragraph 4, of the United Nations Charter, and of a customary international law obligation to refrain from the threat or use of force ; that its actions amount to inter- vention in the interna1 affairs of Nicaragua, in breach of the Charter of the Organization of American States and of rules of customary international law forbidding intervention ; and that the United States has acted in violation of the sovereignty of Nicaragua, and in violation of a number of other obligations established in general customary international law and in the inter-American system. The actions of the United States are also claimed by Nicaragua to be such as to defeat the object and purpose of a Treaty of Friendship, Commerce and Navigation concluded between the Parties in 1956, and to be in breach of provisions of that Treaty. 24. As already noted. the United States has not filed any pleading on the merits of the case, and was not represented at the hearings devoted thereto. It did however make clear in its Counter-Memorial on the questions of jurisdiction and admissibility that "by providing, upon request, propor- tionate and appropriate assistance to third States not before the Court" i t claims to be acting in reliance on the inherent right of self-defence "guaranteed . . . by Article 5 1 of the Charter" of the United Nations, that is to say the right of collective self-defence. 25. Various elements of the present dispute have been brought before the United Nations Security Council by Nicaragua, in April 1984 (as the Court had occasion to note in its Order of 10 May 1984, and in its Judgment on jurisdiction and admissibility of 26 November 1984, I.C.J. Reports 1984, p. 432, para. 91), and on a number of other occasions. The subject-matter of the dispute also forms part of wider issues affecting Central America at present being dealt with on a regional basis in the 25 MILITARY AND PARAMILITARY ACTIVITIES (JUDGMENT) relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and apply the relevant law in the given circum- stances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court." (I.C.J. Reports 1974, p. 9, para. 17 ; p. 181, para. 18.) Nevertheless the views of the parties to a case as to the law applicable to their dispute are very material, particularly, as will be explained below (paragraphs 184 and 185), when those views are concordant. In the present case, the burden laid upon the Court is therefore somewhat lightened by the fact that the United States participated in the earlier phases of the case, when it submitted certain arguments on the law which have a bearing also on the merits. 30. As to the facts of the case, in principle the Court is not bound to confine its consideration to the material formally submitted to it by the parties (cf. Brazilian Loans, P.C.I.J., Series A, No. 20/21, p. 124 ; Nuciear Tests, I.C.J. Reports 1974, pp. 263-264, paras. 31, 32). Nevertheless, the Court cannot by its own enquiries entirely make up for the absence of one of the Parties ; that absence, in a case of this kind involving extensive questions of fact, must necessarily limit the extent to which the Court is informed of the facts. It would furthermore be an over-simplification to conclude that the only detrimental consequence of the absence of a party is the lack of opportunity to submit argument and evidence in support of its own case. Proceedings before the Court cal1 for vigilance by all. The absent party also forfeits the opportunity to counter the factual allegations of its opponent. It is of course for the party appearing to prove the allegations it makes, yet as the Court has held : "While Article 53 thus obliges the Court to consider the submis- sions of the Party which appears, i t does not compel the Court to examine their accuracy in al1 their details ; for this rnight in certain unopposed cases prove impossible in practice." (Corfu Channel, 1. C..'f. Reports 1949, p. 248.) 3 1. While these are the guiding principles, the experience of previous cases in which one party has decided not to appear shows that something more is involved. Though formally absent from the proceedings, the party in question frequently submits to the Court letters and documents, in ways and by means not contemplated by the Rules. The Court has thus to strike a balance. On the one hand, i t is valuable for the Court to know the views of both parties in whatever form those views may have been expressed. Further, as the Court noted in 1974, where one party is not appearing "it is especially incumbent upon the Court to satisfy itself that it is in possession of al1 the available facts" (Nuclear Tests, I.C.J. Reports 1974, p. 263, para. 31 ; p. 468, para. 32). On the other hand, the Court has to emphasize that the equality of the parties to the dispute must remain the basic principle for the Court. The intention of Article 53 was that in a case of non-appearance neither party should be placed at a disadvantage ; there- fore the party which declines to appear cannot be permitted to profit from its absence, since this would amount to placing the party appearing at a disadvantage. The provisions of the Statute and Rules of Court concerning the presentation of pleadings and evidence are designed to secure a proper administration of justice, and a fair and equal opportunity for each party to comment on its opponent's contentions. The treatment to be given by the Court to communications or material emanating from the absent party must be determined by the weight to be given to these different consid- erations, and is not susceptible of rigid definition in the form of a precise general rule. The vigilance which the Court can exercise when aided by the presence of both parties to the proceedings has a counterpart in the special care it has to devote to the proper administration of justice in a case in which only one party is present. 32. Before proceeding further, the Court considers it appropriate to deal with a preliminary question, relating to what may be referred to as the justiciability of the dispute submitted to it by Nicaragua. In its Counter- Memorial on jurisdiction and admissibility the United States advanced a number of arguments why the claim should be treated as inadmissible : interalia, again according to the United States, that a claim of unlawful use of armed force is a matter committed by the United Nations Charter and by practice to the exclusive cornpetence of other organs, in particular the Security Council ; and that an "ongoing armed conflict" involving the use of armed force contrary to the Charter is one with which a court cannot deal effectively without overstepping proper judicial bounds. These argu- ments were examined by the Court in its Judgment of 26 November 1984, and rejected. No further arguments of this nature have been submitted to the Court by the United States, which has not participated in the subse- quent proceedings. However the examination of the merits which the Court has now carried out shows the existence of circumstances as a result of which, it might be argued, the dispute, or that part of it which relates to the questions of use of force and collective self-defence, would be non- justiciable. 33. In the first place, it has been suggested that the present dispute should be declared non-justiciable, because it does not fall into the cate- gory of "legal disputes" within the meaning of Article 36, paragraph 2, of the Statute. It is true that thejurisdiction of the Court under that provision is limited to "legal disputes" concerning any of the matters enumerated in the text. The question whether a given dispute between two States is or is not a "legal dispute" for the purposes of this provision may itself be a matter in dispute between those two States ; and if so, that dispute is to be settled by the decision of the Court in accordance with paragraph 6 of Article 36. In the present case, however, this particular point does not appear to be in dispute between the Parties. The United States, during the proceedings devoted to questions of jurisdiction and admissibility, ad- vanced a number of grounds why the Court should find that it had no jurisdiction, or that the claim was not admissible. It relied inter alia on proviso (c) to its own declaration of acceptance of jurisdiction under Article 36, paragraph 2, without ever advancing the more radical argument that the whole declaration was inapplicable because the dispute brought before the Court by Nicaragua was not a "legal dispute" within the meaning of that paragraph. As a matter of admissibility, the United States objected to the application of Article 36, paragraph 2, not because the dispute was not a "legal dispute", but because of the express allocation of such matters as the subject of Nicaragua's claims to the political organs under the United Nations Charter, an argument rejected by the Court in its Judgment of 26 November 1984 (I.C.J. Reports 1984, pp. 431-436). Simi- larly, while the United States contended that the nature of the judicial function precludes its application to the substance of Nicaragua's allega- tions in this case - an argument which the Court was again unable to uphold (ibid., pp. 436-438) -, it was careful to emphasize that this did not mean that it was arguing that international law was not relevant or con- trolling in a dispute of this kind. In short, the Court can see no indication whatsoever that, even in the view of the United States, the present dispute falls outside the category of "legal disputes" to which Article 36, para- graph 2, of the Statute applies. It must therefore proceed to examine the specific claims of Nicaragua in the light of the international law appli- cable. 34. There can be no doubt that the issues of the use of force and collective self-defence raised in the present proceedings are issues which are regulated both by customary international law and by treaties, in particular the United Nations Charter. Yet i t is also suggested that, for another reason, the questions of this kind which arise in the present case are notjusticiable, that they fa11 outside the limits of the kind of questions a court can deal with. It is suggested that the plea of collective self-defence which has been advanced by the United States as a justification for its actions with regard to Nicaragua requires the Court to determine whether the United States was legallyjustified in adjudging itself under a necessity, because its own security was in jeopardy, to use force in response to foreign intervention in El Salvador. Such a determination, it is said, involves a pronouncement on political and military matters, not a question of a kind that a court can usefully attempt to answer. 35. As will be further explained below, in the circumstances of the dispute now before the Court, what is in issue is the purported exercise by the United States of a right of collective self-defence in response to an armed attack on another State. The possible lawfulness of a response to the imminent threat of an armed attack which has not yet taken place has not 30 MILITARY AND PARAMILITARY ACTIVITIES (JUDGMENT) p. 56), and in particular where the Court, if it were to decide on the objection, "would run the risk of adjudicating on questions which apper- tain to the merits of the case or of prejudging their solution" (ibid.). If this power was exercised, there was always a risk, namely that the Court would ultimately decide the case on the preliminary objection, after requiring the parties fully to plead the merits, - and this did in fact occur (Barcelona Traction, Light and Power Company, Limited, Second Phase, 1. C.J. Reports 1970, p. 3) . The result was regarded in some quarters as an unnecessary prolongation of an expensive and time-consuming procedure. 40. Taking into account the wide range of issues which might be pre- sented as preliminary objections, the question which the Court faced was whether to revise the Rules so as to exclude for the future the possibility of joinder to the merits, so that every objection would have to be resolved at the preliminary stage, or to seek a solution which would be more flexible. The solution of considering al1 preliminary objections immediately and rejecting al1 possibility of a joinder to the merits had many advocates and presented many advantages. In the Panevezys-Saldutiskis Railway case, the Permanent Court defined a preliminary objection as one "submitted for the purpose of excluding an examination by the Court of the merits of the case, and being one upon which the Court can give a decision without in any way adjudicating upon the merits" (P.C.I.J., Series A/B, No. 76, p. 22). If this view is accepted then of course every preliminary objection should be dealt with immediately without touching the merits, or involving parties in argument of the merits of the case. To find out, for instance, whether there is a dispute between the parties or whether the Court has jurisdiction, does not normally require an analysis of the merits of the case. However that does not solve al1 questions of preliminary objections, which may, as experience has shown, be to some extent bound up with the merits. The final solution adopted in 1972, and maintained in the 1978 Rules, con- cerning preliminary objections is the following : the Court is to give its decision "by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the Court rejects the objection, or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings." (Art. 79, para. 7.) 41. While the variety of issues raised by preliminary objections cannot possibly be foreseen, practice has shown that there are certain kinds of preliminary objections which can be disposed of by the Court at an early stage without examination of the merits. Above all, it is clear that a question of jurisdiction is one which requires decision at the preliminary 3 1 MILITARY AND PARAMILITARY ACTIVITIES (JUDGMENT) stage of the proceedings. The new rule enumerates the objections contem- plated as follows : "Any objection by the respondent to thejurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits . . ." (Art. 79, para. 1.) It thus presents one clear advantage : that it qualifies certain objections as preliminary, making it quite clear that when they are exclusively of that character they will have to be decided upon immediately, but i f they are not. especially when the character of the objections is not exclusively preliminary because they contain both preliminary aspects and other aspects relating to the merits. they will have to be dealt with at the stage of the merits. This approach also tends to discourage the unnecessary pro- longation of proceedings at the jurisdictional stage. 42. The Court must thus now rule upon the consequences of the United States multilateral treaty reservation for the decision which it has to give. It will be recalled that the United States acceptance of jurisdiction deposited on 26 August 1946 contains a proviso excluding from its application : "disputes arising under a multilateral treaty, unless (1) al1 parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction". The 1984 Judgment included pronouncements on certain aspects of that reservation. but the Court then took the view that it was neither necessary nor possible, at the jurisdictional stage of the proceedings, for it to take a position on al1 the problems posed by the reservation. 43. It regarded this as not necessary because, in its Application, Nica- ragua had not confined its claims to breaches of multilateral treaties but had also invoked a number of principles of "general and customary inter- national law", as well as the bilateral Treaty of Friendship, Commerce and Navigation of 1956. These principles remained binding as such, although they were also enshrined in treaty law provisions. Consequently, since the case had not been referred to the Court solely on the basis of multilateral treaties, it was not necessary for the Court, in order to consider the merits of Nicaragua's claim, to decide the scope of the reservation in question : "the claim. . . would not in any event be barred by the multilateral treaty reservation" (I.C.J. Reports 1984, p. 425, para. 73). Moreover, it was not found possible for the reservation to be definitively dealt with at the jurisdictional stage of the proceedings. To make a judgment on the scope of the reservation would have meant giving a definitive interpretation of the term "affected" in that reservation. In its 1984 Judgment, the Court held 32 MILITARY AND PARAMILITARY ACTIVITIES (JUDGMENT) that the term "affected" applied not to multilateral treaties, but to the parties to such treaties. The Court added that if those parties wished to protect their interests "in so far as these are not already protected by Article 59 of the Statute", they "would have the choice of either instituting proceedings or intervening" during the merits phase. But at al1 events, according to the Court, "the determination of the States 'affected' could not be left to the parties but must be made by the Court" (I.C.J. Reports 1984, p. 425, para. 75). This process could however not be carried out at the stage of the proceedings in which the Court then found itself ; "it is only when the general lines of the judgment to be given become clear", the Court said, "that the States 'affected' could be identified" (ibid.). The Court thus concluded that this was "a question concerning matters of substance relating to the merits of the case" (ibid., para. 76). Since "the question of what States may be 'affected' by the decision on the merits is not in itself a jurisdictional problem", the Court found that it "has no choice but to avail itself of Article 79, paragraph 7, of the present Rules of Court, and declare that the objection based on the multilateral treaty reservation . . . does not possess, in the circum- stances of the case, an exclusively preliminary character" (ibid., para. 76). 44. Now that the Court has considered the substance of the dispute, it becomes both possible and necessary for it to rule upon the points related to the United States reservation which were not settled in 1984. It is necessary because the Court's jurisdiction, as it has frequently recalled, is based on the consent of States, expressed in a variety of ways including declarations made under Article 36, paragraph 2, of the Statute. It is the declaration made by the United States under that Article which defines the categories of dispute for which the United States consents to the Court's jurisdiction. If therefore that declaration, because of a reservation con- tained in it, excludes from the disputes for which it accepts the Court's jurisdiction certain disputes arising under multilateral treaties, the Court must take that fact into account. The final decision on this point, which it was not possible to take at the jurisdictional stage, can and must be taken bv the Court now when coming toits decision on the merits. If this were not so, the Court would not havevdecided whether or not the objection was well-founded, either at the jurisdictional stage, because it did not possess an exclusively preliminary character, or at the merits stage, because i t did to some degree have such a character. It is now possible to resolve the question of the application of the reservation because, in the light of the Court's full examination of the facts of the case and the law, the impli- cations of the argument of collective self-defence raised by the United States have become clear. 45. The reservation in question is not necessarily a bar to the United States accepting the Court's jurisdiction whenever a third State which may 35 MILITARY AND PARAMILITARY ACTIVITIES (JUDGMENT) claims to be exercising a right of collective self-defence, which it regards as a justification of its own conduct towards Nicaragua. Moreover, El Sal- vador, confirming this assertion by the United States, told the Court in the Declaration of Intervention which it submitted on 15 August 1984 that it considered itself the victim of an armed attack by Nicaragua, and that it had asked the United States to exercise for its benefit the right of collective self-defence. Consequently, in order to rule upon Nicaragua's complaint against the United States, the Court would have to decide whether any justification for certain United States activities in and against Nicaragua can be found in the right of collective self-defence which may, it is alleged, be exercised in response to an armed attack by Nicaragua on El Salvador. Furthermore, reserving for the present the question of the content of the applicable customary international law, the right of self-defence is of course enshrined in the United Nations Charter, so that the dispute is. to this extent, a dispute "arising under a multilateral treaty" to which the United States. Nicaragua and El Salvador are parties. 49. As regards the Charter of the Organization of American States. the Court notes that Nicaragua bases two distinct claims upon this multilateral treaty : it is contended. first, that the use of force by the United States against Nicaragua in violation of the United Nations Charter is equally a violation of Articles 20 and 21 of the Organization of American States Charter, and secondly that the actions it complains of constitute interven- tion in the interna1 and external affairs of Nicaragua in violation of Article 18 of the Organization of American States Charter. The Court will first refer to the claim of use of force alleged to be contrary to Articles 20 and 21. Article 21 of the Organization of American States Charter provides : "The American States bind themselves in their international rela- tions not to have recourse to the use of force, except in the case of self-defense in accordance with existing treaties or in fulfillment t hereof ." Nicaragua argues that the provisions of the Organization of American States Charter prohibiting the use of force are "coterminous with the stipulations of the United Nations Charter", and that therefore the vio- lations by the United States of its obligations under the United Nations Charter also, and without more, constitute violations of Articles 20 and 2 1 of the Organization of American States Charter. 50. Both Article 51 of the United Nations Charter and Article 21 of the Organization of American States Charter refer to self-defence as an excep- tion to the principle of the prohibition of the use of force. Unlike the United Nations Charter, the Organization of American States Charter does not use the expression "collective self-defence", but refers to the case of "self-defence in accordance with existing treaties or in fulfillment thereof", one such treaty being the United Nations Charter. Furthermore it is evident that if actions of the United States complied with al1 re- quirements of the United Nations Charter so as to constitute the exer- cise of the right of collective self-defence, it could not be argued that they could nevertheless constitute a violation of Article 21 of the Organization of American States Charter. It therefore follows that the situation of El Salvador with regard to the assertion by the United States of the right of collective self-defence is the same under the Organization of American States Charter as it is under the United Nations Charter. 51. In its Judgment of 26 November 1984, the Court recalled that Nicaragua's Application, according to that State, does not cast doubt on El Salvador's right to receive aid. military or otherwise, from the United States (I.C.J. Reports 1984, p. 430, para. 86). However, this refers to the direct aid provided to the Government of El Salvador on its territory in order to help it combat the insurrection with which it is faced, not to any indirect aid which might be contributed to this combat by certain United States activities in and against Nicaragua. The Court has to consider the consequences of a rejection of the United States justification of its actions as the exercise of the right of collective self-defence for the sake of El Salvador, in accordance with the United Nations Charter. A judgment to that effect would declare contrary to treaty-law the indirect aid which the United States Government considers itself entitled to give the Government of El Salvador in the forrn of activities in and against Nicaragua. The Court would of course refrain from any finding on whether El Salvador could lawfully exercise the right of individual self-defence ; but El Salvador would still be affected by the Court's decision on the lawfulness of resort by the United States to collective self-defence. If the Court found that no armed attack had occurred. then not only would action by the United States in purported exercise of the right of collective self-defence prove to be unjustified, but so also would any action which El Salvador rnight take or might have taken on the asserted ground of individual self-defence. 52. It could be argued that the Court, if it found that the situation does not permit the exercise by El Salvador of its right of self-defence, would not be "affecting" that right itself but theapplication of it by El Salvador in the circumstances of the-present case. ~ o w e v e r , it should be recalled that the condition of the application of the multilateral treaty reservation is not that the "rightWof a State be affected, but that the State itself be "affected" - a broader criterion. Furthermore whether the relations between Nica- ragua and El Salvador can be qualified as relations between an attacker State and a victim State which is exercising its right of self-defence, would appear to be a question in dispute between those two States. But El Salvador has not submitted this dispute to the Court ; it therefore has a right to have the Court refrain from ruling upon a dispute which it has not submitted to il. Thus, the decision of the Court in this case would affect this right of El Salvador and consequently this State itself. 53. Nor is i t only in the case of a decision of the Court rejecting the United States claim to be acting in self-defence that El Salvador would be "affected" by the decision. The multilateral treaty reservation does not require, as a condition for the exclusion of a dispute from the jurisdiction of the Court, that a State party to the relevant treaty be "adversely" or "prejudicially" affected by the decision, even though this is clearly the case primarily in view. In other situations in which the position of a State not before the Court is under consideration (cf. Monetary Gold Removedfrom Rome in 1943, 1. C.J. Reports 1954, p. 32 ; Continental Shelf (Lihyan Arah JamahiriyalMalta), Application to Intervene, Judgment, I.C.J. Reports 1984, p. 20, para. 31) it is clearly impossible to argue that that State may be differently treated if the Court's decision will not necessarily be adverse to the interests of the absent State, but could be favourable to those interests. The multilateral treaty reservation bars any decision that would "affect" a third State party to the relevant treaty. Here also, it is not necessary to determine whether the decision will "affect" that State unfavourably or otherwise ; the condition of the reservation is met if the State will neces- sarily be "affected", in one way or the other. 54. There may of course be circumstances in which the Court, having examined the merits of the case, concludes that no third State could be "affected" by the decision : for example, as pointed out in the 1984 Judgment, i f the relevant claim is rejected on the facts (1. C.J. Reports 1984, p. 425, para. 75). If the Court were to conclude in the present case, for example, that the evidence was not sufficient for a finding that the United States had used force against Nicaragua, the question of justification on the grounds of self-defence would not arise, and there would be no pos- sibility of El Salvador being "affected" by the decision. In 1984 the Court could not, on the material available to it, exclude the possibility of such a finding being reached after fuller study of the case, and could not therefore conclude at once that El Salvador would necessarily be "affected" by the eventual decision. It was thus this possibility which prevented the objec- tion based on the reservation from having an exclusively preliminary character. 55. As indicated in paragraph 49 above, there remains the claim of Nicaragua that the United States has intervened in the internal and external affairs of Nicaragua in violation of Article 18 of the Organization of American States Charter. That Article provides : "No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements." The potential link, recognized by this text, between intervention and the use of armed force, is actual in the present case, where the same activities attributed to the United States are ccmplained of under both counts, and 40 MILITARY AND PARAMILITARY ACTIVITIES (JUDGMENT) evidence to the other party, the submission of observations on it by that party, and the various forms of challenge by each party of the other's evidence. The absence of one of the parties restricts this procedure to some extent. The Court is careful, even where both parties appear, to give each of them the same opportunities and chances to produce their evidence ; when the situation is complicated by the non-appearance of one of them, then a fortiori the Court regards it as essential to guarantee as perfect equality as possible between the parties. Article 53 of the Statute therefore obliges the Court to employ whatever means and resources may enable it to satisfy itself whether the submissions of the applicant State are well-founded in fact and law, and simultaneously to safeguard the essential principles of the sound administration of justice. 60. The Court should now indicate how these requirements have to be met in this case so that it can properly fulfil its task under that Article of its Statute. In so doing, it is not unaware that its role is not a passive one ; and that, within the limits of its Statute and Rules, it has freedom in estimating the value of the various elements of evidence, though it is clear that general principles of judicial procedure necessarily govern the determination of what can be regarded as proved. 61. In this context, the Court has the power, under Article 50 of its Statute, to entrust "any individual, body, bureau, commission or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion", and such a body could be a group of judges selected from among those sitting in the case. In the present case, however, the Court felt it was unlikely that an enquiry of this kind would be practical or desirable, particularly since such a body, i f it was properly to perform its task, might have found it necessary to go not only to the applicant State, but also to several other neighbouring countries, and even to the respon- dent State, which had refused to appear before the Court. 62. At al1 events, in the present case the Court has before it documen- tary material of various kjnds from various sources. A large number of documents has been supplied in the form of reports in press articles, and some also in the form of extracts from books. Whether these were pro- duced by the applicant state, or by the absent Party before it ceased to appear in the proceedings, the Court has been careful to treat them with great caution ; even if they seem to meet high standards of objectivity, the Court regards them not as evidence capable of proving facts, but as material which can nevertheless contribute, in some circumstances, to corroborating the existence of a fact, Le., as illustrative material additional to other sources of evidence. 63. However, although it is perfectly proper that press information should not be treated in itself as evidence for judicial purposes, public knowledge of a fact may nevertheless be established by means of these sources of information, and the Court can attach a certain amount of weight to such public knowledge. In the case of United States Diplontatic and Consular Staff in Tehran, the Court referred to facts which "are, for the most part, matters of public knowledge which have received extensive coverage in the world press and in radio and television broadcasts from Iran and other countries" (I.C.J. Reports 1980, p. 9, para. 12). O n the basis of information, including press and broadcast material, which was "wholly consistent and concordant as to the main facts and circumstances of the case", the Court was able to declare that it was satisfied that the allegations of fact were well-founded (ibid., p. 10, para. 13). The Court has however to show particular caution in this area. Widespread reports of a fact may prove on closer examination to derive from a single source, and such reports. however numerous, will in such case have no greater value as evidence than the original source. It is with this important reservation that the newspaper reports supplied to the Court should be examined in order to assess the facts of the case, and in particular to ascertain whether such facts were matters of public knowledge. 64. The material before the Court also includes statements by repre- sentatives of States, sometimes at the highest political level. Some of these statements were made before officia1 organs of the State or of an inter- national or regional organization, and appear in the official records of those bodies. Others, made during press conferences or interviews, were reported by the local or international press. The Court takes the view that statements of this kind, emanating from high-ranking official political figures. sometimes indeed of the highest rank, are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them. They may then be construed as a form of admission. 65. However, it is natural also that the Court should treat such state- ments with caution, whether the officiai statement was made by an authority of the Respondent o r of the Applicant. Neither Article 53 of the Statute, nor any other ground, could justify a selective approach, which would have undermined the consistency of the Court's methods and its elementary duty to ensure equality between the Parties. The Court must take account of the manner in which the statements were made public ; evidently, it cannot treat them as having the same value irrespective of whether the text is to be found in an officiai national or international publication, or in a book or newspaper. It must also take note whether the text of the officia1 statement in question appeared in the language used by the author or on the basis of a translation (cf. I.C.J. Reports 1980, p. 10, para. 13). It may also be relevant whether or not such a statement was brought to the Court's knowledge by officia1 communications filed in conformity with the relevant requirements of the Statute and Rules of Court. Furthermore, the Court has inevitably had sometimes to interpret the statements, to ascertain precisely to what degree they constituted acknowledgments of a fact. 66. At the hearings in this case, the applicant State called five witnesses to give oral evidence, and the evidence of a further witness was offered in the form of an affidavit "subscribed and sworn" in the United States, District of Columbia, according to the forma1 requirements in force in that place. A similar affidavit, sworn by the United States Secretary of State, was annexed to the Counter-Memorial of the United States on the ques- tions of jurisdiction and admissibility. One of the witnesses presented by the applicant State was a national of the respondent State, formerly in the employ of a government agency the activity of which is of a confidential iund, and his testimony was kept strictly within certain limits ; the witness was evidently concerned not to contravene the legislation of his country of origin. In addition, annexed to the Nicaraguan Memorial on the merits were two declarations, entitled "affidavits", in the English language, by which the authors "certify and declare" certain facts, each with a notarial certificate in Spanish appended, whereby a Nicaraguan notary authenti- cates the signature to the document. Similar declarations had been filed by Nicaragua along with its earlier request for the indication of provisional measures. 67. As regards the evidence of witnesses, the failure of the respondent State to appear in the merits phase of these proceedings has resulted in two particular disadvantages. First. the absence of the United States meant that the evidence of the witnesses presented by the Applicant at the hearings was not tested by cross-examination ; however, those witnesses were subjected to extensive questioning from the bench. Secondly, the Respondent did not itself present any witnesses of its own. This latter disadvantage merely represents one aspect, and a relatively secondary one, of the more general disadvantage caused by the non-appearance of the Respondent . 68. The Court has not treated as evidence any part of the testimony given which was not a statement of fact, but a mere expression of opinion as to the probability or otherwise of the existence of such facts, not directly known to the witness. Testimony of t h s kind, which may be highly sub- jective, cannot take the place of evidence. An opinion expressed by a witness is a mere persona1 and subjective evaluation of a possibility. which has yet to be shown to correspond to a fact ; it may, in conjunction with other material, assist the Court in determining a question of fact, but is not proof in itself. Nor is testimony of matters not within the direct knowledge of the witness, but known to him only from hearsay, of much weight ; as the Court observed in relation to a particular witness in the Corfu Channel case : "The statements attributed by the witness . . . to third parties, of which the Court has received no personal and direct confirmation, can be regarded only as allegations falling short of conclusive evidence." (I.C.J. Reports 1949, pp. 16-17.) 69. The Court has had to attach considerable significance to the decla- rations made by the responsible authorities of the States concerned in view of the difficulties which it has had to face in determining the facts. collective self-defence constitutes a major admission of direct and sub- stantial United States involvement in the military and paramilitary oper- ations" directed against Nicaragua. The Court would observe that the normal purpose of an invocation of self-defence is tojustify conduct which would otherwise be wrongful. If advanced as a justification in itself, not coupled with a denial of the conduct alleged, it may well imply both an admission of that conduct, and of the wrongfulness of that conduct in the absence of the justification of self-defence. This reasoning would d o away with any difficulty in establishing the facts, which would have been the subject of an implicit overall admission by the United States, simply through its attempt tojustify them by the right of self-defence. However, in the present case the United States has not listed the facts or described the measures which it claims to have taken in self-defence ; nor has it taken the stand that it is responsible for al1 the activities of which Nicaragua accuses it but such activities were justified by the right of self-defence. Since it has not done this. the United States cannot be taken to have admitted al1 the activities, or any of them ; the recourse to the right of self-defence thus does not make possible a firm and complete definition of admitted facts. The Court thus cannot consider reliance on self-defence to be an implicit general admission on the part of the United States ; but it is certainly a recognition as to the imputability of some of the activities complained of. 75. Before examining the complaint of Nicaragua against the United States that the United States is responsible for the military capacity, if not the very existence, of the contra forces, the Court will first deal with events which. in the submission of Nicaragua, involve the responsibility of the United States in a more direct manner. These are the mining of Nicaraguan ports or waters in early 1984 ; and certain attacks on, in particular, Nica- raguan port and oil installations in late 1983 and early 1984. It is the contention of Nicaragua that these were not acts cornmitted by members of the contras with the assistance and support of United States agencies. Those directly concerned in the acts were, it is claimed. not Nicaraguan nationals or other members of the FDN or ARDE, but either United States military personnel or persons of the nationality of unidentified Latin American countries, paid by, and acting on the direct instructions of, United States rnilitary or intelligence personnel. (These persons were apparently referred to in the vocabulary of the CIA as "UCLAs" - "Unilaterally Controlled Latino Assets", and this acronym will be used, purely for convenience. in what follows.) Furthermore. Nicaragua con- tends that such United States personnel, while they may have refrained from thernselves entering Nicaraguan territory or recognized territorial waters, directed the operations and gave very close logistic, intelligence and practical support. A further complaint by Nicaragua which does not 46 MILITARY AND PARAMILITARY ACTIVITIES (TUDGMENT) relate to contra activity is that of overflights of Nicaraguan territory and territorial waters by United States military aircraft. These complaints will now be examined. x % 76. On 25 February 1984, two Nicaraguan fishing vessels struck mines in the Nicaraguan port of El Bluff, on the Atlantic coast. On 1 March 1984 the Dutch dredger Geoponte, and on 7 March 1984 the Panamanian vessel Los Caraibes were damaged by mines at Corinto. On 20 March 1984 the Soviet tanker Lugansk was damaged by a mine in Puerto Sandino. Further vessels were damaged or destroyed by mines in Corinto on 28, 29 and 30 March. The period for which the mines effectively closed or restricted access to the ports was some two months, Nicaragua claims that a total of 12 vessels or fishing boats were destroyed or damaged by mines, that 14 people were wounded and two people killed. The exact position of the mines — whether they were in Nicaraguan internal waters or in its terri- torial sea — has not been made clear to the Court : some reports indicate that those at Corinto were not in the docks but in the access channel, or in the bay where ships wait for a berth. Nor is there any direct evidence of the size and nature of the mines ; the witness Commander Carrion explained that the Nicaraguan authorities were never able to capture an unexploded mine. According to press reports, the mines were laid on the sea-bed and triggered either by contact, acoustically, magnetically or by water pres- sure ; they were said to be small, causing a noisy explosion, but unlikely to sink a ship. Other reports mention mines of varying size, some up to 300 pounds of explosives. Press reports quote United States administra- tion officials as saying that mines were constructed by the CIA with the help of a United States Navy Laboratory. 77. According to a report in Lloyds List and Shipping Gazette, respon- sibility for mining was claimed on 2 March 1984 by the ARDE. On the other hand, according to an affidavit by Mr. Edgar Chamorro, a former political leader of the FDN, he was instructed by a CIA official to issue a press release over the clandestine radio on 5 January 1984, claiming that the FDN had mined several Nicaraguan harbours. He also stated that the FDN in fact played no role in the mining of the harbours, but did not state who was responsible. According to a press report, the coniras announced on 8 January 1984, that they were mining all Nicaraguan ports, and warning all ships to stay away from them; but according to the same report, nobody paid much attention to this announcement. It does not appear that the United States Government itself issued any 36 warning or notification to other States of the existence and location of the mines. 78. It was announced in the United States Senate on 10 April 1984 that the Director of the CIA had informed the Senate Select Committee on Intelligence that President Reagan had approved a CIA plan for the mining of Nicaraguan ports ; press reports state that the plan was approved in December 1983, but according to a member of that Commit- tee, such approval was given in February 1984. On 10 April 1984, the United States Senate voted that "it is the sense of the Congress that no funds . . . shall be obligated or expended for the purpose of planning, directing, executing or sup- porting the mining of the ports or territorial waters of Nicaragua". During a televised interview on 28 May 1984, of which the officia1 trans- cript has been produced by Nicaragua, President Reagan, when ques- tioned about the mining of ports, said "Those were homemade mines . . . that couldn't sink a ship. They were planted in those harbors . . . by the Nicaraguan rebels." According to press reports quoting sources in the United States administration, the laying of mines was effected from speed boats, not by members of the ARDE or FDN, but by the "UCLAs". The mother ships used for the operation were operated, it is said, by United States nationals ; they are reported to have remained outside the 12-mile limit of Nicaraguan territorial waters recognized by the United States. Other less sophisticated mines may. it appears, have been laid in ports and in Lake Nicaragua by contras operating separately ; a Nicaraguan military officia1 was quoted in the press as stating that "most" of the mining activity was directed by the United States. 79. According to Nicaragua, vessels of Dutch, Panamanian, Soviet, Liberian and Japanese registry, and one (Homin) of unidentified regis- try, were damaged by mines, though the damage to the Homin has also been attributed by Nicaragua rather to gunfire from minelaying vessels. Other sources mention damage to a British or a Cuban vessel. No direct evidence is available to the Court of any diplomatic protests by a State whose vessel had been damaged ; according to press reports, the Soviet Government accused the United States of being responsible for the min- ing, and the British Government indicated to the United States that it deeply deplored the mining, as a matter of principle. Nicaragua has also submitted evidence to show that the mining of the ports caused a rise in marine insurance rates for cargo to and from Nicaragua, and that some shipping companies stopped sending vessels to Nicaraguan ports. Cornmander Carrion lists items (i), (ii), (iv) and (vi), and in his oral evidence before the Court he mentioned items (ii) and (iv). Items (vi) to (x) were listed in what was said to be a classified CIA interna] memorandum or report, excerpts from which were published in the Wall Street Journal on 6 March 1985 ; according to the newspaper, "intelligence and congres- sional officials" had confirmed the authenticity of the document. So far as the Court is aware, no denial of the report was made by the United States administration. The affidavit of the former FDN leader Edgar Chamorro states that items (ii), (iv) and (vi) were the work of UCLAs despatched from a CIA "mother ship", though the FDN was told by the CIA to claim responsibility. It is not however clear what the source of Mr. Chamorro's information was ; since there is no suggestion that he participated in the operation (he states that the FDN "had nothing whatsoever to do" with it), his evidence is probably strictly hearsay, and at the date of his affidavit, the same allegations had been published in the press. Although he did not leave the FDN until the end of 1984, he makes no mention of the attacks listed above of January to April 1984. 85. The Court considers that it should elirninate from further con- sideration under this heading the following items : - the attack of 8 September 1983 on Managua airport (item (i)) : this was claimed by the ARDE ; a press report is to the effect that the ARDE purchased the aircraft from the CIA, but there is no evidence of CIA planning, or the involvement of any United States personnel or UCLAs ; - the attack on Benjamin Zeledon on 2 October 1983 (item (iii)) : there is no evidence of the involvement of United States personnel or UCLAs ; - the incident of 24-25 February 1984 (item vii), already dealt with under the heading of the mining of ports. 86. On the other hand the Court finds the remaining incidents listed in paragraph 81 to be established. The general pattern followed by these attacks appears to the Court, on the basis of that evidence and of press reports quoting United States administration sources, to have been as follows. A "mother ship" was supplied (apparently leased) by the CIA ; whether it was of United States registry does not appear. Speedboats, guns and ammunition were supplied by the United States administration, and the actual attacks were carried out by "UCLAs". Helicopters piloted by Nicaraguans and others piloted by United States nationals were also involved on some occasions. According to one report the pilots were United States civilians under contract to the CIA. Although it is not proved that any United States military personnel took a direct part in the oper- ations, agents of the United States participated in the planning, direction, support and execution of the operations. The execution was the task rather 5 1 MILITARY AND PARAMILITARY ACTIVITlES (JUDGMENT) of the "UCLAs", while United States nationals participated in the plan- ning, direction and support. The imputability to the United States of these attacks appears therefore to the Court to be established. 87. Nicaragua complains of infringement of its airspace by United States military aircraft. Apart from a minor incident on 11 January 1984 involving a helicopter, as to which, according to a press report, it was conceded by the United States that it was possible that the aircraft violated Nicaraguan airspace, this claim refers to overflights by aircraft at high altitude for intelligence reconnaissance purposes, or aircraft for supply purposes to the contras in the field, and aircraft producing "sonic booms". The Nicaraguan Mernorial also mentions low-level reconnaissance flights by aircraft piloted by United States personnel in 1983, but the press report cited affords no evidence that these flights, along the Honduran border, involved any invasion of airspace. In addition Nicaragua has made a particular cornplaint of the activities of a United States SR-71 plane between 7 and 1 1 November 1984, which is said to have flown low over several Nicaraguan cities "producing loud sonic booms and shattering glass windows, to exert psychological pressure on the Nicaraguan Gov- ernment and population". 88. The evidence available of these overflights is as follows. During the proceedings on jurisdiction and admissibility, the United States Govern- ment deposited with the Court a "Background Paper" published in July 1984, incorporating eight aerial photographs of ports, camps, an airfield, etc., in Nicaragua, said to have been taken between November 1981 and June 1984. According to a press report, Nicaragua made a diplomatic protest to the United States in March 1982 regarding overflights, but the text of such protest has not been produced. In the course of a Security Council debate on 25 March 1982, the United States representative said that "It is true that once we became aware of Nicaragua's intentions and actions, the United States Government undertook overflights to safeguard our own security and that of other States which are threatened by the Sandinista Government", and continued "These overflights, conducted by unarmed, high-flying planes, for the express and sole purpose of verifying reports of Nicaraguan intervention, are no threat to regional peace and stability ; quite the contrary." (9PV.2335, p. 48, emphasis added.) The use of the present tense may be taken to imply that the overflights were continuing at the time of the debate. Press reports of 12 November 1984 confirm the occurrence of sonic booms at that period, and report the statement of Nicaraguan Defence Ministry officiais that the plane respon- sible was a United States SR-71. 89. The claim that sonic booms were caused by United States aircraft in November 1984 rests on assertions by Nicaraguan Defence Ministry offi- cials, reported in the United States press ; the Court is not however aware of any specific denial of these flights by the United States Government. On 9 Novernber 1984 the representative of Nicaragua in the Security Council asserted that United States SR-7 1 aircraft violated Nicaraguan airspace on 7 and 9 November 1984 ; he did not specifically mention sonic booms in this respect (though he did refer to an earlier flight by a similar aircraft, on 3 1 October 1984, as having been "accompanied by loud explosions" (S/PV. 2562, pp. 8-10)). The United States representative in the Security Council did not comment on the specific incidents complained of by Nicaragua but simply said that "the allegation which is being advanced against the United States" was "without foundation" (ibid., p. 28). 90. As to low-level reconnaissance flights by United States aircraft, or flights to supply the contras in the field, Nicaragua does not appear to have offered any more specific evidence of these ; and it has supplied evidence that United States agencies made a number of planes available to the contras themselves for use for supply and low-level reconnaissance pur- poses. According to Commander Carrion, these planes were supplied after late 1982, and prior to the contras receiving the aircraft, they had to return at frequent intervals to their basecamps for supplies, from which it may be inferred that there were at that time no systematic overflights by United States planes for supply purposes. 91. The Court concludes that, as regards the high-altitude overflights for reconnaissance purposes, the statement admitting them made in the Security Council is limited to the period up to March 1982. However, not only is it entitled to take into account that the interest of the United States in "verifying reports of Nicaraguan intervention" - the justification offered in the Security Council for these flights - has not ceased or diminished since 1982, but the photographs attached to the 1984 Back- ground Paper are evidence of at least sporadic overflights subsequently. It sees no reason therefore to doubt the assertion of Nicaragua that such flights have continued. The Court finds that the incidents of overflights causing "sonic booms" in November 1984 are to some extent a matter of public knowledge. As to overflights of aircraft for supply purposes, i t appears from Nicaragua's evidence that these were carried out generally, if not exclusively, by the contras themselves, though using aircraft supplied to them by the United States. Whatever other responsibility the United States 5 5 MILITARY AND PARAMILITARY ACTIVITIES (JUDGMENT) assistance" was cut off in September 1984, the size of the force was reported to be over 10,000 men. 95. The financing by the United States of the aid to the contras was initially undisclosed, but subsequently became the subject of specific leg- islative provisions and ultimately the stake in a conflict between the legislative and executive organs of the United States. Initial activities in 198 1 seem to have been financed out of the funds available to the CIA for "covert" action ; according to subsequent press reports quoted by Nica- ragua, $19.5 million was allocated to these activities. Subsequently, again according to press sources, a further $19 million was approved in late 198 1 for the purpose of the CIA plan for military and paramilitary operations authorized by National Security Decision Directive 17. The budgetary arrangements for funding subsequent operations up to the end of 1983 have not been made clear, though a press report refers to the United States Congress as having approved "about $20 million" for the fiscal year to 30 September 1983, and from a Report of the Permanent Select Committee on Intelligence of the House of Representatives (hereinafter called the "Intelligence Committee") it appears that the covert programme was funded by the Intelligence Authorization Act relating to that fiscal year, and by the Defense Appropriations Act, which had been amended by the House of Representatives so as to prohibit "assistance for the purpose of overthrowing the Government of Nicaragua". In May 1983, this Commit- tee approved a proposa1 to amend the Act in question so as to prohibit United States support for military or paramilitary operations in Nicara- gua. The proposa1 was designed to have substituted for these operations the provision of open security assistance to any friendly Central American country so as toprevent the transfer of military equipment from or through Cuba or Nicaragua. This proposa1 was adopted by the House of Repre- sentatives, but the Senate did not concur ; the executive in the meantime presented a request for $45 million for the operations in Nicaragua for the fiscal year to 30 September 1984. Again conflicting decisions emerged from the Senate and House of Representatives, but ultimately a compro- mise was reached. In November 1983, legislation was adopted, coming into force on 8 December 1983, containing the following provision : "During fiscal year 1984, not more than $24,000,000 of the funds available to the Central Intelligence Agency, the Department of Defense, or any other agency or entity of the United States involved in intelligence activities may be obligated or expended for the purpose or 45 56 MILITARY AND PARAMILITARY ACTIVITlES (JUDGMENT) which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement, or individual." (Intelligence Autho- rization Act 1984, Section 108.) 96. In March 1984, the United States Congress was asked for a sup- plemental appropriation of $21 million "to continue certain activities of the Central Intelligence Agency which the President has determined are important to the national security of the United States", Le., for further support for the contras. The Senate approved the supplemental appropria- tion, but the House of Representatives did not. In the Senate, two amend- ments which were proposed but not accepted were : to prohibit the funds appropriated from being provided to any individual or group known to have as one of its intentions the violent overthrow of any Central American government ; and to prohibit the funds being used for acts of terrorism in or against Nicaragua. In June 1984, the Senate took up consideration of the executive's request for $28 million for the activities in Nicaragua for the fiscal year 1985. When the Senate and the House of Representatives again reached conflicting decisions, a compromise provision was included in the Continuing Appropriations Act 1985 (Section 8066). While in principle prohibiting the use of funds during the fiscal year to 30 September 1985 "for the purpose or which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicara- gua by any nation, group, organization, movement or individual", the Act provided $14 million for that purpose if the President submitted a report to Congress after 28 February 1985 justifying such an appropria- tion, and both Chambers of Congress voted affirmatively to approve it. Such a report was submitted on 10 April 1985 ; it defined United States objectives toward Nicaragua in the following terms : "United States policy toward Nicaragua since the Sandinistas' ascent to power has consistently sought to achieve changes in Nica- raguan government policy and behavior. We have not sought to overthrow the Nicaraguan Government nor to force on Nicaragua a specific system of government." The changes sought were stated to be : "- termination of al1 forms of Nicaraguan support for insurgencies or subversion in neighboring countries ; - reduction of Nicaragua's expanded military/security apparatus to restore military balance in the region ; - severance of Nicaragua's military and secunty ties to the Soviet Bloc and Cuba and the return to those countries of their military and security advisers now in Nicaragua ; and - implementation of Sandinista commitment to the Organization of American States to political pluralism, human rights, free elec- tions, non-alignment, and a mixed economy." At the same time the President of the United States, in a press conference, referred to an offer of a cease-fire in Nicaragua made by the opponents of the Nicaraguan Government on 1 March 1984, and pledged that the $14 million appropriation, if approved, would not be used for arms or munitions, but for "food, clothing and medicine and other support for survival" during the period "while the cease-fire offer is on the table". On 23 and 24 April 1985, the Senate voted for, and the House of Represen- tatives against, the $14 million appropriation. 97. In June 1985, the United States Congress was asked to approve the appropriation of $38 million to fund military or paramilitary activities against Nicaragua dunng the fiscal years 1985 and 1986 (ending 30 Sep- tember 1986). This appropriation was approved by the Senate on 7 June 1985. The House of Representatives, however, adopted a proposa1 for an appropriation of $27 million, but solely for humanitarian assistance to the contras, and administration of the funds was to be taken out of the hands of the CIA and the Department of Defense. The relevant legislation, as ultimately agreed by the Senate and House of Representatives after sub- mission to a Conference Committee, provided "$27,000,000 for humani tarian assistance to the Nicaraguan demo- cratic resistance. Such assistance shall be provided in such depart- ment or agency of the United States as the President shall designate, except the Central Intelligence Agency or the Department of De- fense . . . As used in this subsection, the term 'humanitarian assistance' means the provision of food, clothing, medicine, and other humani- tarian assistance, and it does not include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles, or mate- rial which can be used to inflict serious bodily harm or death." The Joint Explanatory Statement of the Conference Committee noted that while the legislation adopted operations. Helicopters with Nicaraguan crews are reported to have taken part in certain operations of the "UCLAs" (see paragraph 86 above), but there is nothing to show whether these belonged to the coniras or were lent by United States agencies. 102. It appears to be recognized by Nicaragua that, with the exception of some of the operations listed in paragraph 81 above, operations on Nicaraguan territory were carried out by the contras alone, al1 United States trainers or advisers remaining on the other side of the frontier, or in international waters. It is however claimed by Nicaragua that the United States Government has devised the strategy and directed the tactics of the contra force, and provided direct combat support for its military opera- tions. 103. In support of the claim that the United States devised the strategy and directed the tactics of the contras, counsel for Nicaragua referred to the successive stages of the United States legislative authorization for funding the contras (outlined in paragraphs 95 to 97 above), and observed that every offensive by the contras was preceded by a new infusion of funds from the United States. From this, it is argued, the conclusion follows that the timing of each of those offensives was deterrnined by the United States. In the sense that an offensive could not be launched until the funds were available, that may well be so ; but, in the Court's view, it does not follow that each provision of funds by the United States was made in order to set in motion a particular offensive, and that that offensive was planned by the United States. 104. The evidence in support of the assertion that the United States devised the strategy and directed the tactics of the contras appears to the Court to be as follows. There is considerable matenal in press reports of statements by FDN officials indicating participation of CIA advisers in planning and the discussion of strategy or tactics, confirmed by the affi- davit of Mr. Chamorro. Mr. Chamorro attributes virtually a power of command to the CIAoperatives : he refers to them as having "ordered" or "instructed" the FDN to take various action. The specific instances of influence of United States agents on strategy or tactics which he gives are as follows : the CIA, he says, was at the end of 1982 "urging" the FDN to launch an offensive designed to take and hold Nicaraguan territory. After the failure of that offensive, the CIA told the FDN to move its men back into Nicaragua and keep fighting. The CIA in 1983 gave a tactical directive not to destroy farms and crops, and in 1984 gave a directive to the opposite effect. In 1983, the CIA again indicated that they wanted the FDN to launch an offensive to seize and hold Nicaraguan territory. In this respect, attention should also be drawn to the statement of Mr. Chamorro (para- graph 101 above) that the CIA supplied the FDN with intelligence, par- ticularly as to Nicaraguan troop movements, and small aircraft suitable for reconnaissance and a certain amount of supply-dropping. Emphasis has been placed, by Mr. Chamorro, by Commander Carrion, and by counsel for Nicaragua, on the impact on contra tactics of the availability of intel- ligence assistance and, still more important, supply aircraft. 105. It has been contended by Nicaragua that in 1983 a "new strategy" for contra operations in and against Nicaragua was adopted at the highest level of the United States Government. From the evidence offered in support of this, it appears to the Court however that there was, around this time, a change in contra strategy, and a new policy by the United States administration of more overt support for the contras, culrninating in the express legislative authorization in the Department of Defense Appro- priations Act, 1984, section 775, and the Intelligence Authorization Act for Fiscal Year 1984, section 108. The new contra strategy was said to be to attack "economic targets like electrical plants and storage facilities" and fighting in the cities. 106. In the light of the evidence and material available to it, the Court is not satisfied that al1 the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States. However, it is in the Court's view established that the support of the United States authorities for the activities of the contras took various forms over the years, such as logistic support, the supply of information on the location and movements of the Sandinista troops, the use of sophisticated methods of communication, the deployment of field broadcasting networks, radar coverage, etc. The Court finds it clear that a number of rnilitary and paramilitary operations by this force were decided and planned, if not actually by United States advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the United States was able to offer, particularly the supply aircraft provided to the contras by the United States. 107. To sum up, despite the secrecy which surrounded it, at least ini- tially, the financial support given by the Government of the United States to the military and paramilitary activities of the contras in Nicaragua is a fully established fact. The legislative and executive bodies of the respon- dent State have moreover, subsequent to the controversy which has been sparked off in the United States, openly admitted the nature, volume and frequency of this support. Indeed, they clearly take responsibility for it, this government aid having now become the major element of United States foreign policy in the region. As to the ways in which such financial support has been translated into practical assistance, the Court has been able to reach a general finding. 108. Despite the large quantity of documentary evidence and testimony which it has examined, the Court has not been able to satisfy itself that the respondent State "created" the contra force in Nicaragua. It seems certain 62 MILITARY AND PARAMILlTARY ACTIVITIES (JUDGMENT) that members of the former Somoza National Guard, together with civilian opponents to the Sandinista régime, withdrew from Nicaragua soon after that régime was installed in Managua, and sought to continue their strug- gle against it, even if in a disorganized way and with limited and ineffectual resources, before the Respondent took advantage of the existence of these opponents and incorporated this fact into its policies vis-à-vis the régime of the Applicant. Nor does the evidence warrant a finding that the United States gave "direct and critical combat support", at least if that form of words is taken to mean that this support was tantamount to direct inter- vention by the United States combat forces, or that al1 contra operations reflected strategy and tactics wholly devised by the United States. On the other hand, the Court holds it established that the United States autho- rities largely financed, trained, equipped, armed and organized the FDN. 109. What the Court has to determine at this point is whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Govemment. Here i t is relevant to note that in May 1983 the assessment of the Intelligence Committee, in the Report referred to in paragraph 95 above, was that the contras "constitute[d] an independent force" and that the "only element of control that could be exercised by the United States" was "cessation of aid". Paradoxically this assessment serves to underline, a contrario, the potential for control inherent in the degree of the contras'dependence on aid. Yet despite the heavy subsidies and other support provided to them by the United States, there is no clear evidence of the United States having actually exercised such a degree of control in al1 fields as tojustify treating the contras as acting on its behalf. 110. So far as the potential control constituted by the possibility of cessation of United States rnilitary aid is concerned, it may be noted that after 1 October 1984 such aid was no longer authorized, though the sharing of intelligence, and the provision of "humanitarian assistance" as defined in the above-cited legislation (paragraph 97) may continue. Yet, according to Nicaragua's own case, and according to press reports, contra activity has continued. In sum, the evidence available to the Court indicates that the various forms of assistance provided to the contras by the United States have been crucial to the pursuit of their activities, but is insufficient to demonstrate their complete dependence on United States aid. On the other hand. it indicates that in the initial years of United States assistance the contra force was so dependent. However, whether the United States Gov- ernment at any stage devised the strategy and directed the tactics of the contras depends on the extent to which the United States made use of the potential for control inherent in that dependence. The Court already indicated that it has insufficient evidence to reach a finding on this point. It is afortiori unable to determine that the contra force may be equated for 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 thecourse of which the alleged violations were committed. 116. The Court does not consider that the assistance given by the United States to the contras warrants the conclusion that these forces are subject to the United States to such an extent that any acts they have committed are imputable to that State. It takes the view that the contras remain responsible for their acts, and that the United States is not respon- sible for the acts of the contras, but for its own conduct vis-à-vis Nicaragua, including conduct related to the acts of the contras. What the Court has to investigate is not the cornplaints relating to alleged violations of humani- tarian law by the contras, regarded by Nicaragua as imputable to the United States, but rather unlawful acts for which the United States may be responsible directly in connection with the activities of the contras. The lawfulness or otherwise of such acts of the United States is a question different from the violations of humanitarian law of which the contras may or may not have been guilty. I t is for this reason that the Court does not have to determine whether the violations of humanitarian law attributed to the contras were in fact committed by them. At the same tirne, the question whether the United States Government was, or must have been, aware at the relevant time that allegations of breaches of humanitarian law were being made against the contras is relevant to an assessment of the lawful- ness of the action of the United States. In this respect, the material facts are primarily those connected with the issue in 1983 of a manual of psycho- logical operations. 117. Nicaragua has in fact produced in evidence before the Court two publications which it claims were prepared by the CIA and supplied to the contras in 1983. The first of these, in Spanish, is entitled "Operaciones sicolbgicas en guerra de guerrillas" (Psychological Operations in Guerrilla Warfare), by 'Tayacan" ; the certified copy supplied to the Court carries no publisher's name or date. In its Preface, the publication is described as "a manual for the training of guerrillas in psychological operations, and its application to the concrete case of the Christian and demo- cratic crusade being waged in Nicaragua by the Freedom Com- mandos". The second is entitled the Freedom Fighter's Manual, with the subtitle "Practical guide to liberating Nicaragua frorn oppression and misery by paralyzing the military-industrial complex of the traitorous marxist state without having to use special tools and with minimal risk for the comba- tant". The text is printed in English and Spanish, and illustrated with simple drawings : i t consists of guidance for elementary sabotage tech- niques. The only indications available to the Court of its authorship are reports in the New York Times, quoting a United States Congressman and 66 MILITARY AND PARAMILITARY ACTIVITIES (JUDGMENT) Mr. Edgar Chamorro as attributing the book to the CIA. Since the evi- dznce linking the Freedom Fighter's Manual to the CIA is no more than newspaper reports the Court will not treat its publication as an act impu- table to the United States Government for the purposes of the present case. 118. The Court will therefore concentrate its attention on the other manual, that on "Psychological Operations". That this latter manual was prepared by the CIA appears to be clearly established : a report published in January 1985 by the Intelligence Committee contains a specific state- ment to that effect. It appearsfrom this report that the manual was printed in several editions ; only one has been produced and it is of that text that the Court will take account. The manual is devoted to techniques for winning the minds of the population, defined as including the guerrilla troops, the enemy troops and the civilian population. In general, such parts of the manual as are devoted to military rather than political and ideo- logical matters are not in conflict with general humanitarian law ; but there are marked exceptions. A section on "Implicit and Explicit Terror", while emphasizing that "the guerrillas should be careful not to become an explicit terror, because this would result in a loss of popular support", and stressing the need for good conduct toward the population, also includes directions to destroy military or police installations, cut lines of commu- nication, kidnap officials of the Sandinista government, etc. Reference is made to the possibility that "it should be necessary . . . to fire on a citizen who was trying to leave the town", to be justified by the risk of his informing the enemy. Furthermore, a section on "Selective Use of Violence for Propagandistic Effects" begins with the words : "It is possible to neutralize carefully selected and planned targets, such as court judges, mesta judges, police and State Security officials, CDS chiefs, etc. For psychological purposes it is necessary to take extreme precautions, and i t is absolutely necessary to gather together the population affected, so that they will be present, take part in the act, and formulate accusations against the oppressor." In a later section on "Control of mass concentrations and meetings", the following guidance is given (inter alia) : "If possible, professional criminals will be hired to carry out spe- cific selective 'jobs'. Specific tasks will be assigned to others, in order to create a 'martyr' for the cause, taking the demonstrators to a confrontation with the authorities, in order to bring about uprisings or shootings, which will cause the death of one or more persons, who would become the martyrs, a situation that should be made use of immediately against the régime, in order to create greater conflicts." 1 19. According to the affidavit of Mr. Chamorro, about 2,000 copies of the manual were distributed to members of the FDN, but in those copies Mr. Chamorro had arranged for the pages containing the last two passages quoted above to be torn out and replaced by expurgated pages. According to some press reports, another edition of 3,000 copies was printed (though according to one report Mr. Chamorro said that he knew of no other edition), of which however only some 100 are said to have reached Nica- ragua, attached to balloons. He was quoted in a press report as saying that the manual was used to train "dozens of guerrilla leaders" for some six months from December 1983 to May 1984. In another report he is quoted as saying that "people did not read it" and that most of the copies were used in a special course on psychological warfare for middle-level com- mander~. In his affidavit, Mr. Chamorro reports that the attitude of some unit commanders, in contrast to that recommended in the manual, was that "the best way to win the loyalty of the civilian population was to intirnidate it" - by murders, mutilations, etc. - "and make it fearful of us". 120. A question examined by the Intelligence Committee was whether the preparation of the manual was a contravention of United States legis- lation and executive orders ; inter alia, it examined whether the advice on "neutralizing" local officials contravened Executive Order 12333. This Executive Order, re-enacting earlier directives, was issued by President Reagan in December 1981 ; it provides that "2.11. No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in, assassi- nation. 2.12. No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order." (US Code, Congressional and Administrative News, 97th Con- gress, First Session, 198 1, p. B. 1 14.) The manual was written, according to press reports, by "a low-level con- tract employee" of the CIA ; the Report of the Intelligence Committee concluded : "The Committee believes that the manual has caused embarrass- ment to the United States and should never have been released in any of its various forms. Specific actions it describes are repugnant to American values. The original purpose of the manual was to provide training to moderate FDN behavior in the field. Yet, the Committee believes that the manual was written, edited, distributed and used without adequate supervision. No one but its author paid much attention acted in the Bank for International Reconstruction and Development and the Inter-American Development Bank to oppose or block loans to Nicaragua. 124. On 23 September 1983. the President of the United States made a proclamation modifying the system of quotas for United States imports of sugar, the effect of which was to reduce the quota attributed to Nicaragua by 90 per cent. The Nicaraguan Finance Minister assessed the economic impact of the measure at between $15 and $18 million, due to the prefer- ential system of prices that sugar has in the market of the United States. 125. On 1 May 1985, the President of the United States made an Executive Order, which contained a finding that "the policies and actions of the Government of Nicaragua constitute an unusual and extraordinary threat to the national security and foreign policy of the United States" and declared a "national emergency". According to the President's message to Congress, this emergency situation had been created by "the Nicaraguan Government's aggressive activities in Central America". The Executive Order declared a total trade embargo on Nicaragua, prohibiting al1 imports from and exports to that country, barring Nicaraguan vessels from United States ports and excluding Nicaraguan aircraft from air transpor- tation to and from the United States. 126. The Court has before it, in the Counter-Memorial on jurisdiction and admissibility filed by the United States, the assertion that the United States, pursuant to the inherent right of individual and collective self- defence, and in accordance with the Inter-American Treaty of Reciprocal Assistance, has responded to requests from El Salvador, Honduras and Costa Rica, for assistance in their self-defence against aggression by Nicaragua. The Court has therefore to ascertain, so far as possible, the facts on which this claim is or may be based, in order to determine whether collective self-defence constitutes a justification of the activities of the United States here complained of. Furthermore, it has been suggested that, as a result of certain assurances given by the Nicaraguan "Junta of the Government of National Reconstruction" in 1979, the Government of Nicaragua is bound by international obligations as regards matters which would otherwise be matters of purely domestic policy, that it is in breach of those obligations, and that such breach rnight justify the action of the United States. The Court will therefore examine the facts underlying this suggestion also. 127. Nicaragua claims that the references made by the United States to the justification of collective self-defence are merely "pretexts" for the activities of the United States. It has alleged that the true motive for the conduct of the United States is unrelated to the support which it accuses 7 1 MILITARY AND PARAMILITARY ACTIVlTIES (JUDGMENT) Nicaragua of giving to the armed opposition in El Salvador, and that the real objectives of United States policy are to impose its will upon Nica- ragua and force it to comply with United States demands. In the Court's view, however, if Nicaragua has been giving support to the armed oppo- sition in El Salvador, and if this constitutes an armed attack on El Salvador and the other appropriate conditions are met, collective self-defence could be legally invoked by the United States, even though there may be the possibility of an additional motive, one perhaps even more decisive for the United States, drawn from the political orientation of the present Nica- raguan Government. The existence of an additional motive, other than that officially proclaimed by the United States, could not deprive the latter of its right to resort to collective self-defence. The conclusion to be drawn is that special caution is called for in considering the allegations of the United States concerning conduct by Nicaragua which may provide a sufficient basis for self-defence. 128. In its Counter-Memorial on jurisdiction and admissibility, the IJnited States claims that Nicaragua has "promoted and supported guer- rilla violence in neighboring countries", particularly in El Salvador ; and has openly conducted cross-border military attacks on its neighbours, Honduras and Costa Rica. In support of this, it annexed to the Counter- Memorial an affidavit by Secretary of State George P. Shultz. In his affidavit, Mr. Shultz declares, inter alia, that: "The United States has abundant evidence that the Government ot Nicaragua has actively supported armed groups engaged in military and paramilitary activities in and against El Salvador, providing such groups with sites in Nicaragua for communications facilities, com- mand and control headquarters, training and logistics support. The Government of Nicaragua is directly engaged with these armed groups in planning ongoing military and paramilitary activities con- ducted in and against El Salvador. The Government of Nicaragua also participates directly in the procurement, and transshipment through Nicaraguan territory, of large quantities of ammunition, supplies and weapons for the armed groups conducting military and paramilitary activities in and against El Salvador. In addition to this support for armed groups operating in and against El Salvador, the Government of Nicaragua has engaged in similar support, albeit on a smaller scale, for armed groups engaged, or which have sought to engage, in military or paramilitary activities in and against the Republic of Costa Rica, the Republic of Honduras, and the Republic of Guatemala. The regular military forces of Nica- ragua have engaged in several direct attacks on Honduran and Costa Rican territory, causing casualties among the armed forces and civilian populations of those States." In connection with this declaration. the Court would recall the observa- tions it has already made (paragraphs 69 and 70) as to the evidential value of declarations by rninisters of the government of a State engaged in litigation concerning an armed conflict. 129. In addition, the United States has quoted Presidents Magaiia and Duarte of El Salvador, press reports, and United States Government publications. With reference to the claim as to cross-border military attacks, the United States has quoted a statement of the Permanent Rep- resentative of Honduras to the Security Council, and diplomatic protests by the Governments of Honduras and Costa Rica to the Government of Nicaragua. In the subsequent United States Government publication "Revolurion Beyond Our Borders", referred to in paragraph 73 above. these claims are brought up to date with further descriptive detail. Quoting "Honduran government records", this publication asserts that there were 35 border incursions by the Sandinista People's Army in 1981 and 68 in 1982. 130. In its pleading at thejurisdictional stage, the United States asserted the justification of collective self-defence in relation to alleged attacks on El Salvador, Honduras and Costa Rica. It is clear from the material laid before the Court by Nicaragua that, outside the context of the present judicial proceedings, the United States administration has laid the greatest stress on the question of arms supply and other forms of support to opponents of the Government in El Salvador. In 1983, on the proposal of the Intelligence Cornmittee, the covert programme of assistance to the conrrus "was to be directed only at the interdiction of arms to El Salvador". Nicaragua's other neighbours have not been lost sight of, but the emphasis has continued to be on El Salvador : the United States Continuing Appro- priations Act 1985, Section 8066 (b) (1) (A), provides for aid for the military or paramilitary activities in Nicaragua to be resumed if the President reports inter alia that "the Government of Nicaragua is providing material or monetary support to anti-government forces engaged in military or paramilitary operations in El Salvador or other Central American countries". 131. In the proceedings on the merits, Nicaragua has addressed itself primarily to refuting the claim that it has been supplying arms and other assistance to the opponents of the Government of El Salvador ; it has not specifically referred to the allegations of attacks on Honduras or Costa Rica. In this it is responding to what is, as noted above, the principal justification announced by the United States for its conduct. In ascertain- ing whether the conditions for the exercise by the United States of the right of collective self-defence are satisfied, the Court will accordingly first consider the activities of Nicaragua in relation to El Salvador, as estab- lished by the evidence and material available to the Court. It will then consider whether Nicaragua's conduct in relation to Honduras or Costa 7 5 MILITARY AND PARAMILITARY ACTIVITIES (JUDGMENT) Salvador. you would not be in a position to know that ; is that correct ? [Answer :/ 1 think 1 have testified, your honour, that 1 reviewed the immediate past intelligence material at that time, that dealt with that period, and 1 have stated today that there was credible evidence and that on the basis of my reading of it 1 could not rule out a finding that the Nicaraguan Government had been involved during that period. Q. : Would you rule it 'in' ? A. : 1 prefer to stay with my answer that 1 could not rule it out, but to answer you as directly as 1 can my inclination would be more towards ruling 'in' than ruling 'out'. Q. : 1 understand you to be saying, Mr. MacMichael, that you believe that it could be taken as a fact that at least in late 1980/early 198 1 the Nicaraguan Government was involved in the supply of arms to the Salvadorian insurgency. 1s that the conclusion 1 can draw from your remarks ? A. : 1 hate to have it appear that you are drawing this from me like a nail out of a block of wood but, yes, that is my opinion." In short, the Court notes that the evidence of a witness called by Nica- ragua in order to negate the allegation of the United States that the Gov- ernment of Nicaragua had been engaged in the supply of arms to the armed opposition in El Salvador only partly contradicted that allega- tion. 136. Some confirmation of the situation in 1981 is afforded by an interna1 Nicaraguan Government report, made available by the Govern- ment of Nicaragua in response to a request by the Court, of a meeting held in Managua on 12 August 1981 between Commander Ortega, Co-ordina- tor of the Junta of the Government of Nicaragua and Mr. Enders, Assis- tant Secretary of State for Inter-American Affairs of the United States. According to this report, the question of the flow of "arms, munitions and other forms of military aid" to El Salvador, was raised by Mr. Enders as one of the "major problems" (problemus principales). At one point he is reported to have said : "On your part, you could take the necessary steps to ensure that the flow of arms to El Salvador is again halted as in March of this year. We d o not seek to involve ourselves in deciding how and with whom this object should be achieved, but we may well monitor the results." 76 MILITARY AND PARAMILITARY ACTIVITIES (JUDGMENT) Later in the course of the discussion, the following exchange is recorded : "[Ortega :/ As for the flow of arms to El Salvador, what must be stated is that as far as we have been informed by you, efforts have been made to stop it ; however, 1 want to make clear that there is a great desire here to collaborate with the Salvadorian people, also among members of our armed forces, although our Junta and the National Directorate have a decision that activities of this kind should not be permitted. We would ask you to give us reports about that flow to help us control it. [Enders :/ You have succeeded in doing so in the past and 1 believe you can do so now. We are not in a position to supply you with intelligence reports. We would compromise our sources, and our nations have not yet reached the necessary level to exchange intelli- gence reports." 137. As regards the question, raised in this discussion, of the picture given by United States intelligence sources, further evidence is afforded by the 1983 Report of the Intelligence Committee (paragraphs 95, 109 above). In that Report, dated 13 May 1983. it was stated that "The Committee has regularly reviewed voluminous intelligence material on Nicaraguan and Cuban support for leftist insurgencies since the 1979 Sandinista victory in Nicaragua." The Committee continued : "At the time of the filing of this report, the Committee believes that the intelligence available to it continues to support the following judgments with certainty : A major portion of the arms and other material sent by Cuba and other communist countries to the Salvadorian insurgents transits Nicaragua with the permission and assistance of the Sandinistas. The Salvadorian insurgents rely on the use of sites in Nicaragua. some of which are located in Managua itself, for communications, command-and-control, and for the logistics to conduct their financial, material and propaganda activities. The Sandinista leadership sanctions and directly facilitates al1 of the above functions. Nicaragua provides a range of other support activities, including secure transit of insurgents to and from Cuba, and assistance to the insurgents in planning their activities in El Salvador. In addition, Nicaragua and Cuba have provided - and appear to continue providing - training to the Salvadorian insurgents." The Court is not aware of the contents of any analogous report of a body with access to United States intelligence material covering a more recent period. It notes however that the Resolution adopted by the United States Congress on 29 July 1985 recorded the expectation of Congress from the Government of Nicaragua of : "the end to Sandinista support for insurgencies in other countries in the region, including the cessation of military supplies to the rebel forces fighting the democratically elected government in El Salva- dor". 138. In its Declaration of Intervention, El Salvador alleges that "Nica- raguan officiais have publicly admitted their direct involvement in waging war on us" (para. IX). It asserts that the Foreign Minister of Nicaragua admitted such support at a meeting of the Foreign Ministers of the Con- tadora Group in July 1983. Setting this against the declaration by the Nicaraguan Foreign Minister annexed to the Nicaraguan Mernorial, deny- ing any involvement of the Nicaraguan Government in the provision of arms or other supplies to the opposition in El Salvador, and in view of the fact that the Court has not been informed of the exact words of the alleged admission, or with any corroborative testimony from others present at the meeting, the Court cannot regard as conclusive the assertion in the Decla- ration of Intervention. Similarly, the public statement attributed by the Declaration of Intervention (para. XIII) to Commander Ortega, referring to "the fact of continuing support to the Salvadorian guerrillas" cannot, even assuming it to be accurately quoted, be relied on as proof that that support (which. in the form of political support, is openly admitted by the Nicaraguan Government) takes any specific material form, such as the supply of arms. 139. The Court has taken note of four draft treaties prepared by Nica- ragua in 1983. and submitted as an official proposal within the framework of the Contadora process, the text of which was supplied to the Court with the Nicaraguan Application. These treaties, intended to be "subscribed to by al1 nations that desire to contribute to the peaceful solution of the present armed conflict in the Republic of El Salvador" (p. 58). contained the following provisions : "Article One The High Contracting Parties promise to not offer and, should such be the case, to suspend military assistance and training and the supply and trafficking of arms, munitions and military equipment that may be made directly to the contending forces or indirectly through third States. Article Two The High Contracting Parties promise to adopt in their respective territories whatever measures may be necessary to impede al1 supply and trafficking of arms, munitions and military equipment and military assistance to and training of the contending forces in the Republic of El Salvador." (P. 60.) was in fact doing what it had already officially denied and continued subsequently to deny publicly. 146. Reference was made during the hearings to the testimony of defectors from Nicaragua or from the armed opposition in El Salvador ; the Court has no such direct testimony before it. The only material avail- able in this respect is press reports, some of which were annexed to the United States Counter-Memorial on the questions of jurisdiction and admissibility. With appropriate reservations, the Court has to consider what the weight is of such material, which includes allegations of arms supply and of the training of Salvadoreans at a base near Managua. While the Court is not prepared totally to discount this material, it cannot find that it is of any great weight in itself. Still less can statements attributed in the press to unidentified diplomats stationed in Managua be regarded as evidence that the Nicaraguan Government was continuing to supply aid to the opposition in El Salvador. 147. The evidence or material offered by Nicaragua in connection with the allegation of arms supply has to be assessed bearing in mind the fact that, in responding to that allegation, Nicaragua has to prove a negative. Annexed to the Memorial was a declaration dated 21 April 1984 of Miguel d'Escoto Brockmann, the Foreign Minister of Nicaragua. In this respect the Court has, as in the case of the affidavit of the United States Secretary of State, to recall the observations it has already made (paragraphs 69 and 70) as to the evidential value of such declarations. In the declaration, the Foreign Minister States that the allegations made by the United States, that the Nicaraguan Government "is sending arms, ammunition, communica- tions equipment and medical supplies to rebels conducting a civil war against the Government of El Salvador, are false". He continues : "In truth, my government is not engaged, and has not been engaged, in the provision of arms or other supplies to either of the factions engaged in the civil war in El Salvador . . . Since my gov- ernment came to power on July 19, 1979, its policy and practice has been to prevent our national territory from being used as a conduit for arms or other military supplies intended for other governments or rebel groups. In fact, on numerous occasions the security forces of my government have intercepted clandestine arms shipments, apparently destined for El Salvador, and confiscated them." The Foreign Minister explains the geographical difficulty of patrolling Nicaragua's frontiers : 8 1 MILITARY A N D PARAMlLITARY ACTlVITlES (JUDGMENT) "Nicaragua's frontier with Honduras. to the north, is 530 kilo- meters long. Most of it is characterized by rugged mountains. or remote and dense jungles. Most of this border area is inaccessible by motorized land transport and simply impossible to patrol. To the south, Nicaragua's border with Costa Rica extends for 220 kilometers. This area is also characterized by dense and remotejungles and is also virtually inaccessible by land transport. As a small underdeveloped country with extremely limited resources. and with no modern or sophisticated detection equipment, it is not easy for us to seal off our borders to al1 unwanted and illegal traffic." He then points out the complication of the presence of the contras along the northern and southern borders, and describes efforts by Nicaragua to obtain verifiable international agreements for halting al1 arms traffic in the region. 148. Before turning to the evidence offered by Nicaragua at the hear- ings. the Court would note that the action of the United States Govern- ment itself. on the basis of its own intelligence reports. does not suggest that arms supply to El Salvador from the territory of Nicaragua was continuous from July 1979, when the new régime took power in Managua. and the early months of 1981. The presidential Determination of 12 Sep- tember 1980, for the purposes of the Special Central American Assistance Act 1979. quoted in paragraph 123 above, officially certified that the Government of Nicaragua was not aiding, abetting or supporting acts of violence or terrorism in other countries, and the press release of the same date emphasized the "careful consideration and evaluation of al1 the rele- vant evidence provided by the intelligence community and by our Embas- sies in the field" for the purposes of the Determination. The 1983 Report of the Intelligence Committee, on the other hand, referring to its regular review of intelligence since "the 1979 Sandinista victory in Nicaragua", found that the intelligence available to it in May 1983 supported "with certainty" the judgment that arms and material supplied to "the Salva- dorian insurgents transits Nicaragua with the permission and assistance of the Sandinistas" (see paragraph 137 above). 149. During the oral proceedings Nicaragua offered the testimony of Mr. MacMichael, already reviewed above (paragraphs 134 and 135) from a different aspect. The witness, who was well placed to judge the situation from United States intelligence, stated that there was no detection by United States intelligence capabilities of arms traffic from Nicaraguan territory to El Salvador during the period of his service (March 1981 to April 1983). He was questioned also as to his opinion, in the light of official statements and press reports, on the situation after he left the CIA and ceased to have access to intelligence material, but the Court considers it can attach little weight to statements of opinion of this kind (cf. para- graph 68 above). 150. In weighing up the evidence summarized above, the Court has to determine also the significance of the context of. or background to, certain statements or indications. That background includes. first. the ideological similarity between two movements, the Sandinista movement in Nicara- gua and the armed opposition to the present government in El Salvador ; secondly the consequent political interest of Nicaragua in the weakening or overthrow of the government in power in El Salvador ; and finally, the sympathy displayed in Nicaragua, including among members of the army, towards the armed opposition in El Salvador. At the meeting of 12 August 1981 (paragraph 136 above), for example, Commander Ortega told the United States representative, Mr. Enders, that "we are interested in seeing the guerrillas in El Salvador and Guatemala triumph . . .", and that "there is a great desire here to collaborate with the Salvadorian people . . .". Against this background, various indications which, taken alone, cannot constitute either evidence or even a strong presumption of aid being given by Nicaragua to the armed opposition in El Salvador, do at least require to be examined meticulously on the basis that it is probable that they are significant. 151. It is in this light, for example, that one indirect piece of evidence acquires particular importance. From the record of the meeting of 12 Au- gust 1981 in Managua, mentioned in the preceding paragraph, it emerges that the Nicaraguan authorities may have immediately taken steps, at the request of the United States, to bring to a halt or prevent various forms of support to the armed opposition in El Salvador. The United States rep- resentative is there reported to have referred to steps taken by the Gov- ernment of Nicaragua in March 1981 to halt the flow of arms to El Salvador, and his statement to that effect was not contradicted. According to a New York Times report (17 September 1985) Commander Ortega stated that around this time measures were taken to prevent an airstrip in Nicaragua from continuing to be used for these types of activities. This, in the Court's opinion, is an admission of certain facts, such as the existence of an airstrip designed to handle small aircraft, probably for the transport of weapons, the likely destination being El Salvador, even if the Court has not received concrete proof of such transport. The promptness with which the Nicaraguan authorities closed off this channel is a strong indication that it was in fact being used, or had been used for such a purpose. 152. The Court finds, in short, that support for the armed opposition in El Salvador from Nicaraguan territory was a fact up to the early months of 1981. While the Court does not possess full proof that there was aid, or as to its exact nature, its scale and its continuance until the early months of 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 Govern- ment claims. These two conclusions mutually support each other. 157. This second hypothesis would provide the Court with a further reason for taking Nicaragua's affirmation into consideration, in that. if the flow of arms is in fact reaching El Salvador without either Honduras or El Salvador or the United States succeeding in preventing it, it would clearly be unreasonable to demand of the Government of Nicaragua a higher degree of diligence than is achieved by even the combined efforts of the other three States. In particular, when Nicaragua is blamed for allowing consignments of arms to cross its territory, this is tantamount, where El Salvador is concerned, to an admission of its inability to stem the flow. This is revealing as to the predicament of any government, including that of Nicaragua, faced with this arms traffic : its determination to put a stop to it would be likely to fail. More especially, to the extent that some of this aid is said to be successfully routed through Honduras, this accusation against Nicaragua would also signify that Honduras, which is not sus- pected of seeking to assist the armed opposition in El Salvador, is pro- viding involuntary proof that it is by no means certain that Nicaragua can combat this clandestine traffic any better than Honduras. As the means at the disposal of the governments in the region are roughly comparable, the geographical obstacles, and the intrinsic character of any clandestine arms traffic, simply show that this traffic may be carried on successfully without any complicity from governmental authorities, and even when they seek to put a stop to it. Finally, if it is true that the exceptionally extensive resources deployed by the United States have been powerless to prevent this traffic from keeping the Salvadorian armed opposition supplied, this suggests even more clearly how powerless Nicaragua must be with the much smaller resources at its disposal for subduing this traffic if it takes place on its territory and the authorities endeavour to put a stop to it. 158. Confining itself to the regional States concerned, the Court accord- ingly considers that it is scarcely possible for Nicaragua's responsibility for an arms traffic taking place on its territory to be automatically assumed while the opposite assumption is adopted with regard to its neighbours in respect of similar traffic. Having regard to the circumstances character- izing this part of Central America. the Court considers it more realistic, and consistent with the probabilities, to recognize that an activity of that nature, if on a limited scale, may very well be pursued unbeknown to the territorial government. 159. It may be objected that the Nicaraguan authorities are alleged to have declared on various occasions that military assistance to the armed opposition in El Salvador was part of their official policy. The Court has already indicated that it is unable to give weight to alleged statements to that effect of which there is insufficient evidence. In the report of the diplomatie talks held on 12 August 1981 at Managua, Commander Ortega did not in any sense promise to cease sending arms, but, on the contrary, said on the one hand that Nicaragua had taken immediate steps to put a stop to it once precise information had been given and, on the other hand, expressed inability to take such steps where Nicaragua was not provided with information enabling that traffic to be located. The Court would further observe that the four draft treaties submitted by Nicaragua within the Contadora process in 1983 (quoted in paragraph 139 above) do not constitute an admission by Nicaragua of the supply of assistance to the armed opposition in El Salvador, but simply make provision for the future in the context of the inter-American system, in which a State is prohibited from assisting the armed opposition within another State. 160. On the basis of the foregoing, the Court is satisfied that, between July 1979, the date of the faIl of the Somoza régime in Nicaragua, and the early months of 1981, an intermittent flow of arms was routed via the territory of Nicaragua to the armed opposition in El Salvador. On the other hand, the evidence is insufficient to satisfy the Court that, since the early months of 1981, assistance has continued to reach the Salvadorian armed opposition from the territory of Nicaragua on any significant scale, or that the Government of Nicaragua was responsible for any flow of arms at either period. 161. The Court therefore turns to the claim that Nicaragua has been responsible for cross-border military attacks on Honduras and Costa Rica. The United States annexed to its Counter-Memorial on jurisdiction, inter alia, a document entitled "Resumé of Sandinista Aggression in Honduran Territory in 1982" issued by the Press and Information Officer of the Honduran Ministry of Foreign Relations on 23 August 1982. That docu- ment listed 35 incidents said to involve violations of Honduran territory, territorial waters or airspace, attacks on and harassment of the Honduran population or Honduran patrols, between 30 January 1982 and 21 August 1982. Also attached to the Counter-Memorial were copies of diplomatic Notes from Honduras to Nicaragua protesting at other incidents stated to have occurred in June/July 1983 and July 1984. The Court has no infor- mation as to whether Nicaragua replied to these communications, and if so in what terms. 162. With regard to Costa Rica, the United States has supplied the text of diplomatic Notes of protest from Costa Rica to Nicaragua concerning incidents in September 1983, February 1984 and April 1984, and a Note from Costa Rica to the Foreign Ministers of Colombia, Mexico, Panama and Venezuela, referring to an incident of 29 April 1984, and requesting the sending of a mission of observers. Again, the Court has no information as to the contemporary reaction of Nicaragua to these allegations ; from press reports it appears that the matter was later amicably settled. 163. As the Court has already observed (paragraphs 130 to 13 1 above), both the Parties have addressed themselves primarily to the question of aid by the Government of Nicaragua to the armed opposition in El Salvador, and the question of aggression directed against Honduras and Costa Rica has fallen somewhat into the background. Nevertheless the allegation that such aggression affords a basis for the exercise by the United States of the right of collective self-defence remains on the record ; and the Court has to note that Nicaragua has not taken the opportunity during the proceedings of expressly refuting the assertion that it has made cross-border military attacks on the territory of those two States. At the opening of the hearings in 1984 on the questions of jurisdiction and admissibility, the Agent of Nicaragua referred to the "supposed armed attacks of Nicaragua against its neighbours", and proceeded to "reiterate our denial of these accusations which in any case we will amply address in the merits phase of these proceedings". However, the declaration of the Nicaraguan Foreign Mini- ster annexed to the Memorial on the merits filed on 30 April 1985, while repudiating the accusation of support for the armed opposition in El Salvador, did not refer at al1 to the allegation of border incidents involving Honduras and Costa Rica. 164. The Court, while not as fully informed on the question as it would wish to be. therefore considers as established the fact that certain trans- border military incursions into the territory of Honduras and Costa Rica are imputable to the Government of Nicaragua. The Court is also aware of the fact that the FDN operates along the Nicaraguan border with Hon- duras, and the ARDE operates along the border with Costa Rica. 165. In view of the assertion by the United States that it has acted in exercise of the right of collective self-defence for the protection of El Salvador, Honduras and Costa Rica, the Court has also to consider the evidence available on the question whether those States, or any of them, made a request for such protection. In its Counter-Memorial on jurisdic- tion and admissibility, the United States informed the Court that "El Salvador, Honduras. and Costa Rica have each sought outside assistance, principally from the United States. in their self-defense against Nicaragua's aggression. Pursuant to the inherent right of individual and collective self-defense. and in accordance with the terms of the Inter-American Treaty of Reciprocal Assistance, the United States has responded to these requests." No indication has however been given of the dates on which such requests for assistance were made. The affidavit of Mr. Shultz, Secretary of State, The Plan to Secure Peace provided for the Government of National Reconstruction, as soon as established. to decree a Fundamental Statute and an Organic Law. and implement the Program of the Government of National Reconstruction. Drafts of these texts were appended to the Plan : they were enacted into law on 20 July 1979 and 21 August 1979. 168. In this connection. the Court notes that. since thus announcing its objectives in 1979, the Nicaraguan Government has in fact ratified a number of international instruments on human rights. At the invitation of the Government of Nicaragua, the Inter-American Commission on Hu- man Rights visited Nicaragua and compiled two reports (OEA/Ser.L/ V/ 11.53 and 62). A state of emergency was declared by the Nicaraguan Government (and notified to the United Nations Secretary-General) in July 1979, and was re-declared or extended on a number of subsequent occasions. On 4 November 1984, presidential and legislative elections were held. in the presence of foreign observers : seven political parties took part in the election, while three parties abstained from taking part on the ground that the conditions were unsatisfactory. 169. The view of the United States as to the legal effect of these events is reflected in, for example, a Report submitted to Congress by President Reagan on 10 April 1985 in connection with finance for the contras. It was there stated that one of the changes which the United States was seeking from the Nicaraguan Government was : "implementation of Sandinista commitment to the Organization of American States to political pluralism. human rights, free elections, non-alignment, and a mixed economy". A fuller statement of those views is contained in a forma1 finding by Congress on 29 July 1985, to the following effect : "(A) the Government of National Reconstruction of Nicaragua formally accepted the June 23, 1979. resolution as a basis for resolving the Nicaraguan conflict in its 'Plan to Achieve Peace' which was submitted to the Organization of American States on July 12, 1979 : (B) the June 23, 1979, resolution and its acceptance by the Gov- ernment of National Reconstruction of Nicaragua was the formal basis for the removal of the Somoza régime and the installation of the Government of National Reconstruction ; (C) the Government of National Reconstruction, now known as the Government of Nicaragua and controlled by the Frente Sandinista (the FSLN), has flagrantly violated the provisions of the June 23, 1979, resolution. the rights of the Nicaraguan people, and the security of the nations in the region, in that it - ( i ) no longer includes the democratic members of the Government of National Reconstruction in the political process ; ( i i ) is not a government freely elected under conditions of freedom of the press, assembly, and organization, and is not recognized as freely elected by its neighbors. Costa Rica, Honduras, and El Salvador ; ( i i i ) has taken significant steps towards establishing a totalitarian Cornmunist dictatorship, including the formation of FSLN neighborhood watch committees and the enactment of laws that violate human rights and grant undue executive power ; (iv) has committed atrocities against its citizens as documented in reports by the Inter-American Commission on Human Rights of the Organization of Arnerican States ; (v) has aligned itself with the Soviet Union and Soviet allies. in- cluding the German Democratic Republic, Bulgaria, Libya. and the Palestine Liberation Organization ; (vi) has committed and refuses to cease aggression in the form of armed subversion against its neighbors in violation of the Char- ter of the United Nations, the Charter of the Organization of American States. the Inter-American Treaty of Reciprocal Assistance, and the 1965 United Nations General Assembly Declaration on Intervention ; and (vii) has built up an army beyond the needs of immediate self- defense. at the expense of the needs of the Nicaraguan people and about which the nations of the region have expressed deep- est concern." 170. The resolution goes on to note the belief expressed by Costa Rica, El Salvador and Honduras that "their peace and freedom is not safe so long as the Government of Nicaragua excludes from power rnost of Nicaragua's political lead- ership and is controlled by a small sectarian Party, without regard to the will of the rnajority of Nicaraguans" and adds that "the United States, given its role in the installation of the current Government of Nicaragua, has a special responsibility regarding the implementation of the commitments made by that Government in 1979. especially to those who fought against Somoza to bring demo- cracy to Nicaragua with United States support". Among the findings as to the "Resolution of the Conflict" is the statement that the Congress "supports the Nicaraguan democratic resistance in its efforts to peacefully resolve the Nicaraguan conflict and to achieve the fulfill- ment of the Government of Nicaragua's solemn commitments to the Nicaraguan people, the United States, and the Organization of American States". From the transcripts of speeches and press conferences supplied to the Court by Nicaragua, it is clear that the resolution of Congress expresses a view shared by the President of the United States, who is constitutionally responsible for the foreign policy of the United States. 171. The question whether the alleged violations by the Nicaraguan Government of the 1979 Resolution of the Organization of American States Meeting of Consultation, listed in paragraph 169, are relied on by the United States Government as legaljustifications of its conduct towards Nicaragua, or merely as political arguments, will be examined later in the present Judgment. It may however be observed that the resolution clearly links United States support for the contras to the breaches of what the United States regards as the "solemn commitments" of the Government of Nicaragua. 172. The Court has now to turn its attention to the question of the law applicable to the present dispute. In formulating its view on the signifi- cance of the United States multilateral treaty reservation, the Court has reached the conclusion that it must refrain from applying the multilateral treaties invoked by Nicaragua in support of its claims, without prejudice either to other treaties or to the other sources of law enumerated in Article 38 of the Statute. The first stage in its determination of the law actually to be applied to this dispute is to ascertain the consequences of the exclusion of the applicability of the multilateral treaties for the definition of the content of the customary international law which remains applicable. 173. According to the United States, these consequences are extremely wide-ranging. The United States has argued that : "Just as Nicaragua's claims allegedly based on 'customary and general international law' cannot be determined without recourse to the United Nations Charter as the principal source of that law, they also cannot be determined without reference to the 'particular inter- national law' established by multilateral conventions in force among the parties." The United States contends that the only general and customary interna- tional law on which Nicaragua can base its claims is that of the Charter : in particular, the Court could not, it is said, consider the lawfulness of an alleged use of armed force without referring to the "principal source of the would not be a reason for the Court to hold that the incorporation of the customary norm into treaty-law must deprive the customary norm of its applicability as distinct from that of the treaty norm. The existence of identical rules in international treaty law and customary law has been clearly recognized by the Court in the North Sea ContinentalShelfcases. To a large extent, those cases turned on the question whether a rule enshrined in a treaty also existed as a customary rule, either because the treaty had merely codified the custom, or caused it to "crystallize", or because it had influenced its subsequent adoption. The Court found that this identity of content in treaty law and in customary international law did not exist in the case of the rule invoked, which appeared in one article of the treaty, but did not suggest that such identity was debarred as a matter of principle : on the contrary, it considered it to be clear that certain other articles of the treaty in question "were . . . regarded as reflecting, or as crystallizing, received or at least emergent rules of customary international law" (I.C.J. Reports 1969, p. 39, para. 63). More generally, there are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter "supervenes" the former, so that the customary international law has no further existence of its own. 178. There are a number of reasons for considering that, even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence. This is so from the standpoint of their applicability. In alegal dispute affecting two States, one of them may argue that the applicability of a treaty rule to its own conduct depends on the other State's conduct in respect of the application of other rules, on other subjects, also included in the same treaty. For example, if a State exercises its right to terminate or suspend the operation of a treaty on the ground of the violation by the other party of a "provision essential to the accom- plishment 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-à-vis the other State. from a rule of treaty-law because of the breach by that other State of a different rule of treaty-law. But if the two rules in question also exist as rules of customary international law, the failure of the one State to apply the one rule does not justify the other State in declining to apply the other rule. Rules which are identical in treaty law and in customary international law are also distinguishable by reference to the methods of interpretation and application. A State may accept a rule contained in a treaty not simply because it favours the application of the rule itself, but also because the treaty establishes what that State regards as desirable institutions or mechanisms to ensure implementation of the rule. Thus, if that rule parallels a rule of customary international law, two rules of the same content are subject to separate treatment as regards the organs competent to veri fy their implementation, depending on whether they are customary rules or treaty rules. The present dispute illustrates this point. 179. It will therefore be clear that customary international law con- tinues to exist and to apply, separately from international treaty law, even where the two categories of law have an identical content. Consequently, in ascertaining the content of the customary international law applicable to the present dispute, the Court must satisfy itself that the Parties are bound by the customary rules in question ; but the Court is in no way bound to uphold these rules only in so far as they differ from the treaty rules which it is prevented by the United States reservation from applying in the present dispute. 180. The United States however presented a further argument, during the proceedings devoted to the question of jurisdiction and admissibility, in support of its contention that the multilateral treaty reservation debars the Court from considering the Nicaraguan claims based on customary international law. The United States observed that the multilateral treaties in question contain legal standards specifically agreed between the Parties to govern their mutual rights and obligations, and that the conduct of the Parties will continue to be governed by these treaties, irrespective of what the Court may decide on the customary law issue, because of the principle of pacta sunt servanda. Accordingly, in the contention of the United States, the Court cannot properly adjudicate the mutual rights and obligations of the two States when reference to their treaty rights and obligations is barred ; the Court would be adjudicating those rights and obligations by standards other than those to which the Parties have agreed to conduct themselves in their actual international relations. 18 1. The question raised by this argument is whether the provisions of the multilateral treaties in question, particularly the United Nations Char- ter, diverge from the relevant rules of customary international law to such an extent that a judgrnent of the Court as to the rights and obligations of the parties under customary law, disregarding the content of the multila- teral treaties binding on the parties, would be a wholly academic exercise, and not "susceptible of any compliance or execution whatever" (Northern Cameroons, I.C.J. Reports 1963, p. 37). The Court does not consider that this is the case. As already noted, on the question of the use of force, the United States itself argues for a complete identity of the relevant rules of customary international law with the provisions of the Charter. The Court has not accepted this extreme contention, having found that on a number of points the areas governed by the two sources of law do not exactly overlap, and the substantive rules in which they are framed are not iden- tical in content (paragraph 174 above). However, so far from having constituted a marked departure from a customary international law which still exists unmodified, the Charter gave expression in this field to prin- ciples already present in customary international law, and that law has in the subsequent four decades developed under the influence of the Charter, to such an extent that a number of rules contained in the Charter have acquired a status independent of it. The essential consideration is that both the Charter and the customary international law flow from a common fundamental principle outlawing the use of force in international relations. The differences which may exist between the specific content of each are not, in the Court's view, such as to cause a judgment confined to the field of customary international law to be ineffective or inappropriate, or a judg- ment not susceptible of compliance or execution. 182. The Court concludes that it should exercise the jurisdiction con- ferred upon it by the United States declaration of acceptance under Article 36, paragraph 2, of the Statute, to determine the claims of Nicaragua based upon customary international law notwithstanding the exclusion from its jurisdiction of disputes "arising under" the United Nations and Organi- zation of American States Charters. 183. In view of this conclusion, the Court has next to consider what are the rules of customary international law applicable to the present dispute. For this purpose, it has to direct its attention to the practice and opiniojuris of States ; as the Court recently observed, "It is of course axiomatic that the material of customary interna- tional law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them." (Continental Shelf (Libyan Arab Jarnahiriyu/ Malta), I. C.J. Reports 1985, pp. 29-30, para. 27.) In this respect the Court must not lose sight of the Charter of the United Nations and that of the Organization of American States, notwithstanding the operation of the multilateral treaty reservation. Although the Court has no jurisdiction to determine whether the conduct of the United States constitutes a breach of those conventions, it can and must take them into account in ascertaining the content of the customary international law which the United States is also alleged to have infringed. 184. The Court notes that there is in fact evidence, to be examined below, of a considerable degree of agreement between the Parties as to the content of the customary international law relating to the non-use of force and non-intervention. This concurrence of their views does not however dispense the Court from having itself to ascertain what rules of custornary international law are applicable. The mere fact that States declare their recognition of certain rules is not sufficient for the Court to consider these as being part of customary international law, and as applicable as such to those States. Bound as it is by Article 38 of its Statute to apply, inter alia, from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accor- dance with the Charter of the United Nations". The effect of consent to the text of such resolutions cannot be understood as merely that of a "reiter- ation or elucidation" of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves. The principle of non-use of force, for example, may thus be regarded as a principle of customary international law, not as such conditioned by provisions relating to collective security, or to the facilities or armed contingents to be provided under Article 43 of the Charter. It would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rule (or set of rules), to be thenceforth treated sep- arately from the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter. 189. As regards the United States in particular, the weight of an expres- sion of opiniojuris can similarly be attached to its support of the resolution of the Sixth International Conference of American States condemning aggression (18 February 1928) and ratification of the Montevideo Con- vention on Rights and Duties of States (26 December 1933). Article 11 of which imposes the obligation not to recognize territorial acquisitions or special advantages which have been obtained by force. Also significant is United States acceptance of the principle of the prohibition of the use of force which is contained in the declaration on principles governing the mutual relations of States participating in the Conference on Security and Co-operation in Europe (Helsinki, 1 August 1975), whereby the partici- pating States undertake to "refrain in their mutual relations, as well as in their international relations in general, "(emphasis added) from the threat or use of force. Acceptance of a text in these terms confirms the existence of an opinio juris of the participating States prohibiting the use of force in international relations. 190. A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations may be found in the fact that it is frequently referred to in statements by State repre- sentatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law. The International Law Commission, in the course of its work on the codification of the law of treaties, expressed the view that "the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens9'(paragraph (1) of the commentary of the Commission to Article 50 of its draft Articles on the Law of Treaties, ILC Yearbook, 1966-11, p. 247). Nicaragua in its Memorial on the Merits submitted in the present case States that the principle prohibiting the use of force embodied in Article 2, paragraph 4, of the Charter of the United Nations "has come to be recognized as jus cogens". The United States, in its Counter-Memorial on the questions of jurisdiction and admissibility, found i t material to quote the views of scholars that this principle is a "universal norm", a "universal interna- tional law", a "universally recognized principle of international law", and a "principle of jus cogens". 191. As regards certain particular aspects of the principle in question, it will be necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms. In determining the legal rule which applies to these latter forms, the Court can again draw on the formulations contained in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (General Assembly resolution 2625 (XXV), referred to above). As already observed, the adoption by States of this text affords an indication of their opinio juris as to customary international law on the question. Alongside certain descriptions which may refer to aggression, this text includes others which refer only to less grave forms of the use of force. In particular, according to this resolution : "Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States. States have a duty to refrain from acts of reprisa1 involving the use of force. Every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of that right to self-determination and freedom and independence. Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mer- cenaries, for incursion into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force." 192. Moreover, in the part of this same resolution devoted to the prin- ciple of non-intervention in matters within the national jurisdiction of States, a very similar rule is found : "Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the régime of another State, or interfere in civil strife in another State." In the context of the inter-American system, this approach can be traced back at least to 1928 (Convention on the Rights and Duties of States in the Event of Civil Strife, Art. 1 (1)) ; it was confirmed by resolution 78 adopted by the General Assembly of the Organization of American States on 21 April 1972. The operative part of this resolution reads as follows : "The General Assembly Resolves 1. To reiterate solemnly the need for the member states of the Organization to observe strictly the principles of nonintervention and self-determination of peoples as a means of ensuring peaceful coex- istence among them and to refrain from committing any direct or indirect act that might constitute a violation of those principles. 2. To reaffirm the obligation of those states to refrain from applying economic, political, or any other type of measures to coerce another state and obtain from it advantages of any kind. 3. Similarly, to reaffirm the obligation of these states to refrain from organizing, supporting, promoting, financing, instigating, or tolera- ting subversive, terrorist, or armed activities against another state and from intervening in a civil war in another state or in its interna1 struggles." 193. The general rule prohibiting force allows for certain exceptions. In view of the arguments advanced by the United States to justify the acts of which it is accused by Nicaragua, the Court must express a view on the content of the right of self-defence, and more particularly the right of collective self-defence. First, with regard to the existence of this right, it notes that in the language of Article 5 1 of the United Nations Charter, the inherent right (or "droit naturel") which any State possesses in the event of an armed attack, covers both collective and individual self-defence. Thus, the Charter itself testifies to the existence of the rieht of collective self- .2 defence in customary international law. Moreover, just as the wording of certain General Assembly declarations adopted by States demonstrates their recognition of the principle of the prohibition of force as definitely a matter of customary international law, some of the wording in those declarations operates similarly in respect of the right of self-defence (both collective and individual). Thus, in the declaration quoted above on the measures whch it may individually take in fulfilment of the obliga- tion contained in the preceding paragraph and in accordance with the principle of continental solidarity." (The 1947 Rio Treaty was modified by the 1975 Protocol of San José, Costa Rica, but that Protocol is not yet in force.) 198. The Court observes that the Treaty of Rio de Janeiro provides that measures of collective self-defence taken by each State are decided "on the request of the State or States directly attacked". It is significant that this requirement of a request on the part of the attacked State appears in the treaty particularly devoted to these matters of mutual assistance ; it is not found in the more general text (the Charter of the Organization of Ameri- can States), but Article 28 of that Charter provides for the application of the measures and procedures laid down in "the special treaties on the subject". 199. At al1 events, the Court finds that in customary international law, whether of a general kind or that particular to the inter-American legal system, there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack. The Court concludes that the requirement of a request by the State whch is the victim of the alleged attack is additional to the require- ment that such a State should have declared itself to have been attacked. 200. At this point, the Court may consider whether in customary inter- national law there is any requirement corresponding to that found in the treaty law of the United Nations Charter, by which the State claiming to use the right of individual or collective self-defence must report to an international body, empowered to determine the conformity with inter- national law of the measures which the State is seeking to justify on that basis. Thus Article 51 of the United Nations Charter requires that mea- sures taken by States in exercise of this right of self-defence must be "immediately reported" to the Security Council. As the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary international law, may well be so unencumbered with the conditions and modalities surrounding it in the treaty. Whatever influence the Charter may have had on customary international law in these matters, it is clear that in customary international law it is not a condition of the lawfulness of the use of force in self-defence that a procedure so closely dependent on the content of a treaty commitment and of the institutions established by it, should have been followed. On the other hand, if self-defence is advanced as ajustification for measures which would otherwise be in breach both of the principle of customary interna- tional law and of that contained in the Charter, it is to be expected that the conditions of the Charter should be respected. Thus for the purpose of enquiry into the customary law position, the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence. 201. To justify certain activities involving the use of force, the United States has relied solely on the exercise of its right of collective self-defence. However the Court, having regard particularly to the non-participation of the United States in the merits phase, considers that it should enquire whether customary international law, applicable to the present dispute, may contain other rules which may exclude the unlawfulness of such activities. It does not, however, see any need to reopen the question of the conditions governing the exercise of the right of individual self-defence, which have already been examined in connection with collective self- defence. On the other hand, the Court must enquire whether there is any justification for the activities in question, to be found not in the right of collective self-defence against an armed attack, but in the right to take counter-measures in response to conduct of Nicaragua which is not alleged to constitute an armed attack. It will examine this point in connection with an analysis of the principle of non-intervention in customary international Iaw. 202. The principle of non-intervention involves the right of every sov- ereign State to conduct its affairs without outside interference ; though examples of trespass against this principle are not infrequent, the Court considers that it is part and parce1 of customary international law. As the Court has observed : "Between independent States, respect for territorial sovereignty is an essential foundation of international relations" (I.C.J. Reports 1949, p. 35), and international law requires political integrity also to be respected. Expressions of an opinio juris regarding the existence of the principle of non-intervention in customary international law are numerous and not difficult to find. Of course, statements whereby States avow their recognition of the principles of international law set forth in the United Nations Charter cannot strictly be interpreted as applying to the principle of non-intervention by States in the interna1 and external affairs of other States, since this principleis not, as such, spelt out in thecharter. But it was never intended that the Charter should embody written confirmation of every essential principle of international law in force. The existence in the opinio juris of States of the principle of non-intervention is backed by established and substantial practice. It has moreover been presented as a corollary of the principle of the sovereign equality of States. A particular instance of this is General Assembly resolution 2625 (XXV), the Decla- ration on the Principles of International Law concerning Friendly Rela- tions and Co-operation among States. In the Corfu Channel case, when a State claimed a right of intervention in order to secure evidence in the territory of another State for submission to an international tribunal (I.C.J. Reports 1949, p. 34), the Court observed that : 107 MILITARY AND PARAMILITARY ACTIVlTIES (JUDGMENT) "the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law. Intervention is perhaps still less admissible in the particular form it would take here ; for, from the nature of things, i t would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself." (I.C.J. Reports 1949, p. 35.) 203. The principle has since been reflected in numerous declarations adopted by international organizations and conferences in which the United States and Nicaragua have participated, e.g., General Assembly resolution 2131 (XX), the Declaration on the Inadmissibility of Interven- tion in the Domestic Affairs of States and the Protection of their Inde- pendence and Sovereignty. It is true that the United States, while it voted in favour of General Assembly resolution 21 3 1 (XX), also declared at the time of its adoption in the First Committee that it considered the decla- ration in that resolution to be "only a statement of political intention and not a formulation of law" (Official Records of the General Assembly, Twentieth Session, First Committee, A/C. 1 /SR. 1423, p. 436). However, the essentials of resolution 2131 (XX) are repeated in the Declaration approved by resolution 2625 (XXV), which set out principles which the General Assembly declared to be "basic principles" of international law, and on the adoption of which no analogous statement was made by the United States representative. 204. As regards inter-American relations, attention may be drawn to, for example, the United States reservation to the Montevideo Convention on Rights and Duties of States (26 December 1933), declaring the oppo- sition of the United States Government to "interference with the freedom, the sovereignty or other interna1 affairs, or processes of the Governments of other nations" ; or the ratification by the United States of the Addi- tional Protocol relative to Non-Intervention (23 December 1936). Among more recent texts, mention may be made of resolutions AG/RES.78 and AG/RES. 128 of the General Assembly of the Organization of American States. In a different context, the United States expressly accepted the principles set forth in the declaration, to which reference has already been made, appearing in the Final Act of the Conference on Security and Co-operation in Europe (Helsinki, 1 August 1975), including an elaborate statement of the principle of non-intervention ; while these principles were presented as applying to the mutual relations among the participating States, it can be inferred that the text testifies to the existence, and the acceptance by the United States, of a customary principle which has universal application. 205. Notwithstanding the multiplicity of declarations by States accept- ing the principle of non-intervention, there remain two questions : first,