North Sea Continental Shelf Cases

1.
NORTH SEA CONTINENTAL SHELF CASES

Judgment of 20 February 1969
The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf cases.
The dispute, which was submitted to the Court on 20 February 1967, related to the delimitation
of the continental shelf between the Federal Republic of Germany and Denmark on the one hand,
and between the Federal Republic of Germany and the Netherlands on the other. The Parties
asked the Court to state the principles and rules of international law applicable, and undertook
thereafter to carry out the delimitations on that basis.
The Court rejected the contention of Denmark and the Netherlands to the effect that the
delimitations in question had to be carried out in accordance with the principle of equidistance as
defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf, holding:
- that the Federal Republic, which had not ratified the Convention, was not legally bound by the
provisions of Article 6;
- that the equidistance principle was not a necessary consequence of the general concept of
continental shelf rights, and was not a rule of customary international law.
The Court also rejected the contentions of the Federal Republic in so far as these sought
acceptance of the principle of an apportionment of the continental shelf into just and equitable
shares. It held that each Party had an original right to those areas of the continental shelf which
constituted the natural prolongation of its land territory into and under the sea. It was not a
question of apportioning or sharing out those areas, but of delimiting them.
The Court found that the boundary lines in question were to be drawn by agreement between the
Parties and in accordance with equitable principles, and it indicated certain factors to be taken
into consideration for that purpose. It was now for the Parties to negotiate on the basis of such
principles, as they have agreed to do.
The proceedings, relating to the delimitation as between the Parties of the areas of the North Sea
continental shelf appertaining to each of them, were instituted on 20 February 1967 by the
communication to the Registry of the Court of two Special Agreements, between Denmark and
the Federal Republic and the Federal Republic and the Netherlands respectively. By an Order of
26 April 1968, the Court joined the proceedings in the two cases.
The Court decided the two cases in a single Judgment, which it adopted by eleven votes to six.
Amongst the Members of the Court concurring in the Judgment, Judge Sir Muhammad Zafrulla
Khan appended a declaration; and President Bustamante y Rivero and Judges Jessup, Padilla
Nervo and Ammoun appended separate opinions. In the case of the non-concurring Judges, a
declaration of his dissent was appended by Judge Bengzon; and Vice-President Koretsky,
together with Judges Tanaka, Morelli and Lachs, and Judge ad hoc Sorensen, appended
dissenting opinions.
In its Judgment, the Court examined in the context of the delimitations concerned the problems
relating to the legal rgime of the continental shelf raised by the contentions of the Parties.
The Facts and the Contentions of the Parties (paras. 1-17 of the Judgment)
The two Special Agreements had asked the Court to declare the principles and rules of
international law applicable to the delimitation as between the Parties of the areas of the North
Sea continental shelf appertaining to each of them beyond the partial boundaries in the
immediate vicinity of the coast already determined between the Federal Republic and the
Netherlands by an agreement of 1 December 1964 and between the Federal Republic and
Denmark by an agreement of 9 June 1965.The Court was not asked actually to delimit the further
boundaries involved, the Parties undertaking in their respective Special Agreements to effect
such delimitation by agreement in pursuance of the Court's decision.
The waters of the North Sea were shallow, the whole seabed, except for the Norwegian Trough,
consisting of continental shelf at a depth of less than 200 metres. Most of it had already been
delimited between the coastal States concerned. The Federal Republic and Denmark and the
Netherlands, respectively, had, however, been unable to agree on the prolongation of the partial
boundaries referred to above, mainly because Denmark and the Netherlands had wished this
prolongation to be effected on the basis of the equidistance principle, whereas the Federal
Republic had considered that it would unduly curtail what the Federal Republic believed should
be its proper share of continental shelf area, on the basis of proportionality to the length of its
North Sea coastline. Neither of the boundaries in question would by itself produce this effect, but
only both of them together - an element regarded by Denmark and the Netherlands as irrelevant
to what they viewed as being two separate delimitations, to be carried out without reference to
the other.
A boundary based on the equidistance principle, i.e., an "equidistance line", left to each of the
Parties concerned all those portions of the continental shelf that were nearer to a point on its own
coast than they were to any point on the coast of the other Party. In the case of a concave or
recessing coast such as that of the Federal Republic on the North Sea, the effect of the
equidistance method was to pull the line of the boundary inwards, in the direction of the
concavity. Consequently, where two equidistance lines were drawn, they would, if the curvature
were pronounced, inevitably meet at a relatively short distance from the coast, thus "cutting off"
the coastal State from the area of the continental shelf outside. In contrast, the effect of convex or
outwardly curving coasts, such as were, to a moderate extent, those of Denmark and the
Netherlands, was to cause the equidistance lines to leave the coasts on divergent courses, thus
having a widening tendency on the area of continental shelf off that coast.
It had been contended on behalf of Denmark and the Netherlands that the whole matter was
governed by a mandatory rule of law which, reflecting the language of Article 6 of the Geneva
Convention on the Continental Shelf of 29 April 1958, was designated by them as the
"equidistance-special circumstances" rule. That rule was to the effect that in the absence of
agreement by the parties to employ another method, all continental shelf boundaries had to be
drawn by means of an equidistance line unless "special circumstances" were recognized to exist.
According to Denmark and the Netherlands, the configuration of the German North Sea coast did
not of itself constitute, for either of the two boundary lines concerned, a special circumstance.
The Federal Republic, for its part, had contended that the correct rule, at any rate in such
circumstances as those of the North Sea, was one according to which each of the States
concerned should have a "just and equitable share" of the available continental shelf, in
proportion to the length of its sea-frontage. It had also contended that in a sea shaped as is the
North Sea, each of the States concerned was entitled to a continental shelf area extending up to
the central point of that sea, or at least extending to its median line. Alternatively, the Federal
Republic had claimed that if the equidistance method were held to bc applicable, the
configuration of the German North Sea coast constituted a special circumstance such as to justify
a departure from that method of delimitation in this particular case.
The Apportionment Theory Rejected (paras. 18-20 of the Judgment)
The Court felt unable to accept, in the particular form it had taken, the first contention put
forward on behalf of the Federal Republic. Its task was to delimit, not to apportion the areas
concerned. The process of delimitation involved establishing the boundaries of an area already,
in principle, appertaining to the coastal State and not the determination de novo of such an area.
The doctrine of the just and equitable share was wholly at variance with the most fundamental of
all the rules of law relating to the continental shelf, namely, that the rights of the coastal State in
respect of the area of continental shelf constituting a natural prolongation of its land territory
under the sea existed ipso facto and ab initio, by virtue of its sovereignty over the land. That
right was inherent. In order to exercise it, no special legal acts had to be performed. It followed
that the notion of apportioning an as yet undelimited area considered as a whole (which underlay
the doctrine of the just and equitable share) was inconsistent with the basic concept of
continental shelf entitlement.
Non-Applicability of Article 6 of the 1958 Continental Shelf Convention (paras. 21-36 of the
Judgment)
The Court then turned to the question whether in delimiting those areas the Federal Republic was
under a legal obligation to accept the application of the equidistance principle. While it was
probably true that no other method of delimitation had the same combination of practical
convenience and certainty of application, those factors did not suffice of themselves to convert
what was a method into a rule of law. Such a method would have to draw its legal force from
other factors than the existence of those advantages.
The first question to be considered was whether the 1958 Geneva Convention on the Continental
Shelf was binding for all the Parties in the case. Under the formal provisions of the Convention,
it was in force for any individual State that had signed it within the time-limit provided, only if
that State had also subsequently ratified it. Denmark and the Netherlands had both signed and
ratified the Convention and were parties to it, but the Federal Republic, although one of the
signatories of the Convention, had never ratified it, and was consequently not a party. It was
admitted on behalf of Denmark and the Netherlands that in the circumstances the Convention
could not, as such, be binding on the Federal Republic. But it was contended that the rgime of
Article 6 of the Convention had become binding on the Federal Republic, because, by conduct,
by public statements and proclamations, and in other ways, the Republic had assumed the
obligations of the Convention.
It was clear that only a very definite, very consistent course of conduct on the part of a State in
the situation of the Federal Republic could justify upholding those contentions. When a number
of States drew up a convention specifically providing for a particular method by which the
intention to become bound by the rgime of the convention was to be manifested, it was not
lightly to be presumed that a State which had not carried out those formalities had nevertheless
somehow become bound in another way. Furthermore, had the Federal Republic ratified the
Geneva Convention, it could have entered a reservation to Article 6, by reason of the faculty to
do so conferred by Article 12 of the Convention.
Only the existence of a situation of estoppel could lend substance to the contention of Denmark
and the Netherlands - i.e., if the Federal Republic were now precluded from denying the
applicability of the conventional rgime, by reason of past conduct, declarations, etc., which
not only clearly and consistently evinced acceptance of that rgime, but also had caused
Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or
suffer some prejudice. Of this there was no evidence. Accordingly, Article 6 of the Geneva
Convention was not, as such, applicable to the delimitations involved in the present proceedings.
The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental
Shelf (paras. 37-59 of the Judgment)
It had been maintained by Denmark and the Netherlands that the Federal Republic was in any
event, and quite apart from the Geneva Convention, bound to accept delimitation on an
equidistance basis, since the use of that method was a rule of general or customary international
law, automatically binding on the Federal Republic.
One argument advanced by them in support of this contention, which might be termed the a
priori argument, started from the position that the rights of the coastal State to its continental
shelf areas were based on its sovereignty over the land domain, of which the shelf area was the
natural prolongation under the sea. From this notion of appurtenance was derived the view,
which the Court accepted, that the coastal State's rights existed ipso facto and ab initio. Denmark
and the Netherlands claimed that the test of appurtenance must be "proximity": all those parts of
the shelf being considered as appurtenant to a particular coastal State which were closer to it than
they were to any point on the coast of another State. Hence, delimitation had to be effected by a
method which would leave to each one of the States concerned all those areas that were nearest
to its own coast. As only an equidistance line would do this, only such a line could be valid, it
was contended.
This view had much force; the greater part of a State's continental shelf areas would normally in
fact be nearer to its coasts than to any other. But the real issue was whether it followed that every
part of the area concerned must be placed in that way. The Court did not consider this to follow
from the notion of proximity, which was a somewhat fluid one. More fundamental was the
concept of the continental shelf as being the natural prolongation of the land domain. Even if
proximity might afford one of the tests to be applied, and an important one in the right
conditions, it might not necessarily be the only, nor in all circumstances the most appropriate,
one. Submarine areas did not appertain to the coastal State merely because they were near it, nor
did their appurtenance depend on any certainty of delimitation as to their boundaries. What
conferred the ipso jure title was the fact that the submarine areas concerned might be deemed to
be actually part of its territory in the sense that they were a prolongation of its land territory
under the sea. Equidistance clearly could not be identified with the notion of natural
prolongation, since the use of the equidistance method would frequently cause areas which were
the natural prolongation of the territory of one State to be attributed to another. Hence, the notion
of equidistance was not an inescapable a priori accompaniment of basic continental shelf
doctrine.
A review of the genesis of the equidistance method of delimitation confirmed the foregoing
conclusion. The "Truman Proclamation" issued by the Government of the United States on
28 September 1945 could be regarded as a starting point of the positive law on the subject, and
the chief doctrine it enunciated, that the coastal State had an original, natural and exclusive right
to the continental shelf off its shores, had come to prevail over all others and was now reflected
in the1958 Geneva Convention. With regard to the delimitation of boundaries between the
continental shelves of adjacent States, the Truman Proclamation had stated that such boundaries
"shall be determined by the United States and the State concerned in accordance with equitable
principles". These two concepts, of delimitation by mutual agreement and delimitation in
accordance with equitable principles, had underlain all the subsequent history of the subject. It
had been largely on the recommendation of a committee of experts that the principle of
equidistance for the delimitation of continental shelf boundaries had been accepted by the United
Nations International Law Commission in the text it had laid before the Geneva Conference of
1958 on the Law of the Sea which had adopted the Continental Shelf Convention. It could
legitimately be assumed that the experts had been actuated by considerations not of legal theory
but of practical convenience and cartography. Moreover, the article adopted by the Commission
had given priority to delimitation by agreement and had contained an exception in favour of
"special circumstances".
The Court consequently considered that Denmark and the Netherlands inverted the true order of
things and that, far from an equidistance rule having been generated by an antecedent principle
of proximity inherent in the whole concept of continental shelf appurtenance, the latter was
rather a rationalization of the former
The Equidistance Principle Not a Rule of Customary International Law (paras. 60-82 of the
Judgment)
The question remained whether through positive law processes the equidistance principle must
now be regarded as a rule of customary international law.
Rejecting the contentions of Denmark and the Netherlands, the Court considered that the
principle of equidistance, as it figured in Article 6 of the Geneva Convention, had not been
proposed by the International Law Commission as an emerging rule of customary international
law. This Article could not be said to have reflected or crystallized such a rule. This was
confirmed by the fact that any State might make reservations in respect of Article 6, unlike
Articles 1, 2 and 3, on signing, ratifying or acceding to the Convention. While certain other
provisions of the Convention, although relating to matters that lay within the field of received
customary law, were also not excluded from the faculty of reservation, they all related to rules of
general maritime law very considerably antedating the Convention which were only incidental to
continental shelf rights as such, and had been mentioned in the Convention simply to ensure that
they were not prejudiced by the exercise of continental shelf rights. Article 6, however, related
directly to continental shelf rights as such, and since it was not excluded from the faculty of
reservation, it was a legitimate inference that it was not considered to reflect emergent customary
law.
It had been argued on behalf of Denmark and the Netherlands that even if at the date of the
Geneva Convention no rule of customary international law existed in favour of the equidistance
principle, such a rule had nevertheless come into being since the Convention, partly because of
its own impact, and partly on the basis of subsequent State practice. In order for this process to
occur it was necessary that Article 6 of the Convention should, at all events potentially, be of a
norm-creating character. Article 6 was so framed, however, as to put the obligation to make use
of the equidistance method after a primary obligation to effect delimitation by agreement.
Furthermore, the part played by the notion of special circumstances in relation to the principle of
equidistance, the controversies as to the exact meaning and scope of that notion, and the faculty
of making reservations to Article 6 must all raise doubts as to the potentially norm-creating
character of that Article.
Furthermore, while a very widespread and representative participation in a convention might
show that a conventional rule had become a general rule of international law, in the present case
the number of ratifications and accessions so far was hardly sufficient. As regards the time
element, although the passage of only a short period of time was not necessarily a bar to the
formation of a new rule of customary international law on the basis of what was originally a
purely conventional rule, it was indispensable that State practice during that period, including
that of States whose interests were specially affected, should have been both extensive and
virtually uniform in the sense of the provision invoked and should have occurred in such a way
as to show a general recognition that a rule of law was involved. Some 15 cases had been cited in
which the States concerned had agreed to draw or had drawn the boundaries concerned according
to the principle of equidistance, but there was no evidence that they had so acted because they
had felt legally compelled to draw them in that way by reason of a rule of customary law. The
cases cited were inconclusive and insufficient evidence of a settled practice.
The Court consequently concluded that the Geneva Convention was not in its origins or
inception declaratory of a mandatory rule of customary international law enjoining the use of the
equidistance principle, its subsequent effect had not been constitutive of such a rule, and State
practice up to date had equally been insufficient for the purpose.
The Principles and Rules of Law Applicable (paras. 83-101 of the Judgment)
The legal situation was that the Parties were under no obligation to apply the equidistance
principle either under the 1958 Convention or as a rule of general or customary international law.
It consequently became unnecessary for the Court to consider whether or not the configuration of
the German North Sea coast constituted a "special circumstance". It remained for the Court,
however, to indicate to the Parties the principles and rules of law in the light of which
delimitation was to be effected.
The basic principles in the matter of delimitation, deriving from the Truman Proclamation, were
that it must be the object of agreement between the States concerned and that such agreement
must be arrived at in accordance with equitable principles. The Parties were under an obligation
to enter into negotiations with a view to arriving at an agreement and not merely to go through a
formal process of negotiation as a sort of prior condition for the automatic application of a
certain method of delimitation in the absence of agreement; they were so to conduct themselves
that the negotiations were meaningful, which would not be the case when one of them insisted
upon its own position without contemplating any modification of it. This obligation was merely a
special application of a principle underlying all international relations, which was moreover
recognized in Article 33 of the Charter of the United Nations as one of the methods for the
peaceful settlement of international disputes.
The Parties were under an obligation to act in such a way that in the particular case, and taking
all the circumstances into account, equitable principles were applied. There was no question of
the Court's decision being ex aequo et bono. It was precisely a rule of law that called for the
application of equitable principles, and in such cases as the present ones the equidistance method
could unquestionably lead to inequity. Other methods existed and might be employed, alone or in
combination, according to the areas involved. Although the Parties intended themselves to apply
the principles and rules laid down by the Court some indication was called for of the possible
ways in which they might apply them.
For all the foregoing reasons, the Court found in each case that the use of the equidistance
method of delimitation was not obligatory as between the Parties; that no other single method of
delimitation was in all circumstances obligatory; that delimitation was to be effected by
agreement in accordance with equitable principles and taking account of all relevant
circumstances, in such a way as to leave as much as possible to each Party all those parts of the
continental shelf that constituted a natural prolongation of its land territory, without
encroachment on the natural prolongation of the land territory of the other; and that, if such
delimitation produced overlapping areas, they were to be divided between the Parties in agreed
proportions, or, failing agreement, equally, unless they decided on a rgime of joint jurisdiction,
user, or exploitation.
In the course of negotiations, the factors to be taken into account were to include: the general
configuration of the coasts of the Parties, as well as the presence of any special or unusual
features; so far as known or readily ascertainable, the physical and geological structure and
natural resources of the continental shelf areas involved, the element of a reasonable degree of
proportionality between the extent of the continental shelf areas appertaining to each State and
the length of its coast measured in the general direction of the coastline, taking into account the
effects, actual or prospective, of any other continental shelf delimitations in the same region.
2. CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES
IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES OF
AMERICA)
(MERITS)
Judgment of 27 June 1986
For its judgment on the merits in the case concerning military and Paramilitary Activities in and
against Nicaragua brought by Nicaragua against the United States of America, the Court was
composed as follows:
President Nagendra Singh, Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Oda,
Ago, Sette-Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni, Evensen, Judge ad
hoc Colliard
*
**
OPERATIVE PART OF THE COURT'S JUDGMENT
THE COURT
(1) By eleven votes to four,
Decides that in adjudicating the dispute brought before it by the Application filed by the
Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral treaty
reservation"contained in proviso (c) to the declaration of acceptance of jurisdiction made under
Article 36, paragraph 2, of the Statute of the Court by the Government of the Untied States of
America deposited on 26 August 1946;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Oda,
Ago, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Ruda, Elias, Sette-Camara and Ni.
(2) By twelve votes to three,

Rejects the justification of collective self-defence maintained by the United States of America in
connection with the military and paramilitary activities in and against Nicaragua the subject of
this case;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda,
Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
Decides that the United States of America, by training, arming, equipping, financing and
supplying the contra forces or otherwise encouraging, supporting and aiding military and
paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in
breach of its obligation under customary international law not to intervene in the affairs of
another State;
Decides that the United States of America, by certain attacks on Nicaraguan territory in 19831984, namely attacks on Puerto Sandino on 13 September and 14 October 1983, an attack on
Corinto on 10 October 1983; an attack on Potosi Naval Base on 4/5 January 1984, an attack on
San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March
1984; and an attack on San Juan del Norte on 9 April 1984; and further by those acts of
intervention referred to in subparagraph (3) hereof which involve the use of force, has acted,
against the Republic of Nicaragua, in breach of its obligation under customary international law
not to use force against another State;
Decides that the United States of America, by directing or authorizing over Rights of Nicaraguan
territory, and by the acts imputable to the United States referred to in subparagraph (4) hereof,
has acted, against the Republic of Nicaragua, in breach of its obligation under customary
international law not to violate the sovereignty of another State;
Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua
during the first months of 1984, the United States of America has acted, against the Republic of
Nicaragua, in breach of its obligations under customary international law not to use force against
another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt
peaceful maritime commerce;
IN FAVOUR: President Nagendra Singh, Vice-President de Lacharrire; Judges Lachs, Ruda,
(7) By fourteen votes to one,
Decides that, by the acts referred to in subparagraph (6) hereof the United States of America has
acted, against the Republic of Nicaragua, in breach of its obligations under Article XIX of the
Treaty of Friendship, Commerce and Navigation between the United States of America and the
Republic of Nicaragua signed at Managua on 21 January 1956;
IN FAVOUR: President Nagendra Singh, Vice-President de Lacharrire; Judges Lachs, Ruda,
Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and
Evensen; Judge ad hoc Colliard;
AGAINST: Judge Schwebel.
Decides that the United States of America, by failing to make known the existence and location
of the mines laid by it, referred to in subparagraph (6) hereof, has acted in breach of its
obligations under customary international law in this respect;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire, Judges Lachs, Ruda,

Elias, Ago, Sette Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and
AGAINST: Judge Oda.
Finds that the United States of America, by producing in 1983 a manual entitled "Operaciones
sicolgicas en guerra de guerrillas", and disseminating it to contra forces, has encouraged the
commission by them of acts contrary to general principles of humanitarian law; but does not find
a basis for concluding that any such acts which may have been committed are imputable to the
United States of America as acts of the United States of America;
Elias, Ago, Sette Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and
AGAINST: Judge Oda.
Decides that the United States of America, by the attacks on Nicaraguan territory referred to in
subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on
1 May 1985, has committed acts calculated to deprive of its object and purpose the Treaty of
Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January
1956;
Elias, Ago, Sette Camara, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
Decides that the United States of America, by the attacks on Nicaraguan territory referred to in
subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May
1985, has acted in breach of its obligations under Article XIX of the Treaty of Friendship,
Commerce and Navigation between the Parties signed at Managua on 21 January 1956;

Decides that the United States of America is under a duty immediately to cease and to refrain
from all such acts as may constitute breaches of the foregoing legal obligations;
Elias, Ago, Sette Camara, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
Decides that the United States of America is under an obligation to make reparation to the
Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under
customary international law enumerated above;
Decides that the United States of America is under an obligation to make reparation to the
Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the Treaty of
Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January
1956;
Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and
Decides that the form and amount of such reparation, failing agreement between the Parties, will
be settled by the Court, and reserves for this purpose the subsequent procedure in the case;

Elias, Oda, Ago, Sette Camara, Sir Robert Jennings, Mbaye, Bedjaoui, Ni and
(16) Unanimously,
Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in
accordance with international law.
SUMMARY OF THE JUDGMENT
I. Qualits (paras. 1 to 17)
II. Background to the dispute (paras. 18-25)
III. The non-appearance of the Respondent and Article 53 of the Statute (paras. 26-31)
The Court recalls that subsequent to the delivery of its Judgment of 26 November 1984 on the
jurisdiction of the Court and the admissibility of Nicaragua's Application, the United States
decided not to take part in the present phase of the proceedings. This however does not prevent
the Court from giving a decision in the case, but it has to do so while respecting the requirements
of Article 53 of the Statute, which provides for the situation when one of the parties does not
appear. The Court's jurisdiction being established, it has in accordance with Article 53 to satisfy
itself that the claim of the party appearing is well founded in fact and law. In this respect the
Court recalls certain guiding principles brought out in a number of previous cases, one of which
excludes any possibility of a judgment automatically in favour of the party appearing. It also
observes that it is valuable for the Court to know the views of the non-appearing party, even if
those views are expressed in ways not provided for in the Rules of Court. The principle of the
equality of the parties has to remain the basic principle, and the Court has to ensure that the party
which declines to appear should not be permitted to profit from its absence.
IV. Justiciability of the dispute (paras. 32-35)
The Court considers it appropriate to deal with a preliminary question. It has been suggested that
the questions of the use of force and collective self-defence raised in the case fall outside the
limits of the kind of questions the Court can deal with, in other words that they are not
justiciable. However, in the first place the Parties have not argued that the present dispute is not a
"legal dispute" within the meaning of Article 36, paragraph 2, of the Statute, and secondly, the
Court considers that the case does not necessarily involve it in evaluation of political or military
matters, which would be to overstep proper judicial bounds. Consequently, it is equipped to

determine these problems.
V. The significance of the multilateral treaty reservation (paras. 36-56)
The United States declaration of acceptance of the compulsory jurisdiction of the Court under
Article 36, paragraph 2, of the Statute contained a reservation excluding from operation of the
declaration
"disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the
decision are also parties to the case before the Court, or (2) the United States of America
specially agrees to jurisdiction".
In its Judgment of 26 November 1984 the Court found, on the basis of Article 79, paragraph 7, of
the Rules of Court, that the objection to jurisdiction based on the reservation raised "a question
concerning matters of substance relating to the merits of the case" and that the objection did "not
possess, in the circumstances of the case, an exclusively preliminary character". Since it
contained both preliminary aspects and other aspects relating to the merits, it had to be dealt with
at the stage of the merits.
In order to establish whether its jurisdiction were limited by the effect of the reservation in
question, the Court has to ascertain whether any third States, parties to the four multilateral
treaties invoked by Nicaragua, and not parties to the proceedings, would be "affected" by the
Judgment. Of these treaties, the Court considers it sufficient to examine the position under the
United Nations Charter and the Charter of the Organization of American States.
The Court examines the impact of the multilateral treaty reservation on Nicaragua's claim that
the United States has used force in breach of the two Charters. The Court examines in particular
the case of El Salvador, for whose benefit primarily the United States claims to be exercising the
right of collective self-defence which it regards as a justification of its own conduct towards
Nicaragua, that right being endorsed by the United Nations Charter (Art. 51) and the OAS
Charter (Art. 21). The dispute is to this extent a dispute "arising under" multilateral treaties to
which the United States, Nicaragua and El Salvador are Parties. It appears clear to the Court that
El Salvador would be "affected" by the Court's decision on the lawfulness of resort by the United
States to collective self-defence.
As to Nicaragua's claim that the United States has intervened in its affairs contrary to the OAS
Charter (Art. 18) the Court observes that it is impossible to say that a ruling on the alleged
breach of the Charter by the United States would not "affect" El Salvador.
Having thus found that El Salvador would be "affected" by the decision that the Court would
have to take on the claims of Nicaragua based on violation of the two Charters by the United
States, the Court concludes that the jurisdiction conferred on it by the United States declaration
does not permit it to entertain these claims. It makes it clear that the effect of the reservation is
confined to barring the applicability of these two multilateral treaties as multilateral treaty law,
and has no further impact on the sources of international law which Article 38 of the Statute
requires the Court to apply, including customary international law.
VI. Establishment of the facts: evidence and methods employed by the Court (paras. 57-74)
The Court has had to determine the facts relevant to the dispute. The difficulty of its task derived
from the marked disagreement between the Parties, the non-appearance of the Respondent, the
secrecy surrounding certain conduct, and the fact that the conflict is continuing. On this last
point, the Court takes the view, in accordance with the general principles as to the judicial
process, that the facts to be taken into account should be those occurring up to the close of the
oral proceedings on the merits of the case (end of September 1985).
With regard to the production of evidence, the Court indicates how the requirements of its
Statute - in particular Article 53 - and the Rules of Court have to be met in the case, on the basis
that the Court has freedom in estimating the value of the various elements of evidence. It has not
seen fit to order an enquiry under Article 50 of the Statute. With regard to certain documentary
material (press articles and various books), the Court has treated these with caution. It regards
than not as evidence capable of proving facts, but as material which can nevertheless contribute
to corroborating the existence of a fact and be taken into account to show whether certain facts
are matters of public knowledge. With regard to statements by representatives of
States, sometimes at the highest level, the Court takes the view that such statements are of
particular probative value when they acknowledge facts or conduct unfavourable to the State
represented by the person who made them. With regard to the evidence of witnesses presented by
Nicaragua - five witnesses gave oral evidence and another a written affidavit-one consequence of
the absence of the Respondent was that the evidence of the witnesses was not tested by crossexamination. The Court has not treated as evidence any part of the testimony which was a mere
expression of opinion as to the probability or otherwise of the existence of a fact not directly
known to the witness. With regard in particular to affidavits and sworn statements made by
members of a Government, the Court considers that it can certainly retain such parts of this
evidence as may be regarded as contrary to the interests or contentions of the State to which the
witness has allegiance; for the rest such evidence has to be treated with great reserve.
The Court is also aware of a publication of the United States State Department entitled
"Revolution Beyond Our Borders, Sandinista Intervention in Central America" which was not
submitted to the Court in any form or manner contemplated by the Statute and Rules of Court.
The Court considers that, in view of the special circumstances of this case, it may, within limits,
make use of information in that publication.
VII. The facts imputable to the United States (paras. 75 to 125)
1. The Court examines the allegations of Nicaragua that the mining of Nicaraguan ports or
waters was carried out by United States military personnel or persons of the nationality of Latin
American countries in the pay of the United States. After examining the facts, the Court finds it
established that, on a date in late 1983 or early 1984, the President of the United States
authorized a United States Government agency to lay mines in Nicaraguan ports, that in early
1984 mines were laid in or close to the ports of El Bluff, Corinto and Puerto Sandino, either in
Nicaraguan internal waters or in its territorial sea or both, by persons in the pay and acting on the
instructions of that agency, under the supervision and with the logistic support of United States
agents; that neither before the laying of the mines, nor subsequently, did the United States
Government issue any public and official warning to international shipping of the existence and
location of the mines; and that personal and material injury was caused by the explosion of the
mines, which also created risks causing a rise in marine insurance rates.
2. Nicaragua attributes to the direct action of United States personnel, or persons in its pay,
operations against oil installations, a naval base, etc.,listed in paragraph 81 of the Judgment. The
Court finds all these incidents, except three, to be established. Although it is not proved that any
United States military personnel took a direct part in the operations, United States agents
participated in the planning, direction and support. The imputability to the United States of these
attacks appears therefore to the Court to be established.
3. Nicaragua complains of infringement of its air space by United States military aircraft. After
indicating the evidence available, the Court finds that the only violations of Nicaraguan air space
imputable to the United States on the basis of the evidence are high altitude reconnaissance
flights and low altitude flights on 7 to 11 November 1984 causing "sonic booms".
With regard to joint military manoeuvres with Honduras carried out by the United States on
Honduran territory near the Honduras/Nicaragua frontier, the Court considers that they may be
treated as public knowledge and thus sufficiently established.
4. The Court then examines the genesis, development and activities of the contra force, and
the role of the United States in relation to it. According to Nicaragua, the United States
"conceived, created and organized a mercenary army, the contra force". On the basis of the
available information, the Court is not able to satisfy itself that the Respondent State "created"
the contra force in Nicaragua, but holds it established that it largely financed, trained, equipped,
armed and organized the FDN, one element of the force.
It is claimed by Nicaragua that the United States Government devised the strategy and directed
the tactics of the contra force, and provided direct combat support for its military operations. In
the light of the evidence and material available to it, the Court is not satisfied that all the
operations launched by the contra force, at every stage of the conflict, reflected strategy and
tactics solely devised by the United States. It therefore cannot uphold the contention of
Nicaragua on this point. The Court however finds it clear that a number of operations were
decided and planned, if not actually by the 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. It is also established in the Court's view that the support of the
United States 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, etc. The evidence does not however warrant a
finding that the United States gave direct combat support, if that is taken to mean direct
intervention by United States combat forces.
The Court has to determine whether the relationship of the contras to the United States
Government was such that it would be right to equate the contras, for legal purposes, with an
organ of the United States Government, or as acting on behalf of that Government. The Court
considers that the evidence available to it is insufficient to demonstrate the total dependence of
the contras on United States aid. A partial dependency, the exact extent of which the Court
cannot establish, may be inferred from the fact that the leaders were selected by the United
States, and from other factors such as the organisation, training and equipping of the force,
planning of operations, the choosing of targets and the operational support provided. There is no
clear evidence that the United States actually exercised such a degree of control as to justify
treating the contras as acting on its behalf.
5. Having reached the above conclusion, the Court takes the view that the contras remain
responsible for their acts, in particular the alleged violations by them of humanitarian law. For
the United States to be legally responsible, it would have to be proved that that State had
effective control of the operations in the course of which the alleged violations were committed.
6. Nicaragua has complained of certain measures of an economic nature taken against it by the
Government of the United States, which it regards as an indirect form of intervention in its
internal affairs. Economic aid was suspended in January 1981, and terminated in April 1981; the
United States acted to oppose or block loans to Nicaragua by international financial bodies; the
sugar import quota from Nicaragua was reduced by 90 percent in September 1983; and a total
trade embargo on Nicaragua was declared by an executive order of the President of the United
States on 1 May 1985.
VIII. The conduct of Nicaragua (paras. 126-171)
The Court has to ascertain, so far as possible, whether the activities of the United States
complained of, claimed to have been the exercise of collective self-defence, may be justified by
certain facts attributable to Nicaragua.
1. The United States has contended that Nicaragua was actively supporting armed groups
operating in certain of the neighbouring countries,particularly in El Salvador, and specifically in
the form of the supply of arms, an accusation which Nicaragua has repudiated. The Court first
examines the activity of Nicaragua with regard to El Salvador.
Having examined various evidence, and taking account of a number of concordant indications,
many of which were provided by Nicaragua itself, from which the Court can reasonably infer the
provision of a certain amount of aid from Nicaraguan territory, the Court concludes that support
for the armed opposition in El Salvador from Nicaraguan territory was a fact up to the early
months of 1981. Subsequently, evidence of military aid from or through Nicaragua remains very
weak, despite the deployment by the United States in the region of extensive technical
monitoring resources. The Court cannot however conclude that no transport of or traffic in arms
existed. It merely takes note that the allegations of arms traffic are not solidly established, and
has not been able to satisfy itself that any continuing flow on a significant scale took place after
the early months of 1981.
Even supposing it were established that military aid was reaching the armed opposition in El
Salvador from the territory of Nicaragua, it skill remains to be proved that such aid is imputable
to the authorities of Nicaragua, which has not sought to conceal the possibility of weapons
crossing its territory, but denies that this is the result of any deliberate official policy on its part.
Having regard to the circumstances characterizing this part of Central America, the Court
considers that it is scarcely possible for Nicaragua's responsibility for arms traffic on its territory
to be automatically assumed. The Court considers it more consistent with the probabilities to
recognize that an activity of that nature, if on a limited scale, may very well be pursued unknown
to the territorial government. In any event the evidence is insufficient to satisfy the Court that the
Government of Nicaragua was responsible for any flow of arms at either period.
2. The United States has also accused Nicaragua of being responsible for cross-border military
attacks on Honduras and Costa Rica. While not as fully informed on the question as it would
wish to be, the Court considers as established the fact that certain trans-border military
incursions are imputable to the Government of Nicaragua.
3. The Judgment recalls certain events which occurred at the time of the fall of President
Somoza, since reliance has been placed on them by the United States to contend that the present
Government of Nicaragua is in violation of certain alleged assurances given by its immediate
predecessor. The Judgment refers in particular to the "Plan to secure peace" sent on 12 July 1979
by the "Junta of the Government of National Reconstruction" of Nicaragua to the Secretary-
General of the OAS, mentioning, inter alia, its "firm intention to establish full observance of
human rights in our country" and "to call the first free elections our country has known in this
century". The United States considers that it has a special responsibility regarding the
implementation of these commitments.
IX. The applicable law: customary international law (paras. 172-182)
The Court has reached the conclusion (section V, in fine) that it has to apply the multilateral
treaty reservation in the United States declaration, the consequential exclusion of multilateral
treaties being without prejudice either to other treaties or other sources of law enumerated in
Article 38 of the Statute. In order to determine the law actually to be applied to the dispute, it has
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.
The Court, which has already commented briefly on this subject in the jurisdiction phase
(I.C.J. Reports 1984, pp. 424 and 425, para. 73), develops its initial remarks. It does not consider
that it can be claimed, as the United States does, that all the customary rules which may be
invoked have a content exactly identical to that of the rules contained in the treaties which cannot
be applied by virtue of the United States reservation. Even if a treaty norm and a customary norm
relevant to the present dispute were to have exactly the same content, this would not be a reason
for the Court to take the view that the operation of the treaty process must necessarily deprive the
customary norm of its separate applicability. Consequently, the Court is in no way bound to
uphold customary rules only in so far as they differ from the treaty rules which it is prevented by
the United States reservation from applying.
In response to an argument of the United States, the Court considers that the divergence between
the content of the customary norms and that of the treaty law norms is not such that a judgment
confined to the field of customary international law would not be susceptible of compliance or
execution by the parties.
X. The content of the applicable law (paras. 183 to 225)
1. Introduction: general observations (paras. 183-186)
The Court has next to consider what are the rules of customary law applicable to the present
dispute. For this purpose it has to consider whether a customary rule exists in the opinio juris of
States,and satisfy itself that it is confirmed by practice.
2. The prohibition of the use of force, and the right of self-defence (paras. 187 to 201)
The Court finds that both Parties take the view that the principles as to the use of force
incorporated in the United Nations Charter correspond, in essentials, to those found in customary
international law. They therefore accept a treaty-law obligation to refrain in their international
relations from the threat or use of force against the territorial integrity or political independence
of any State, or in any other manner inconsistent with the purposes of the United Nations (Art. 2,
para. 4, of the Charter). The Court has however to be satisfied that there exists in customary law
an opinio juris as to the binding character of such abstention. It considers that this opinio
juris may be deduced from, inter alia, the attitude of the Parties and 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
Accordance with the Charter of the United Nations". Consent to such resolutions is one of the
forms of expression of an opinio juris with regard to the principle of non-use of force, regarded
as a principle of customary international law, independently of the provisions, especially those of
an institutional kind, to which it is subject on the treaty-law plane of the Charter.
The general rule prohibiting force established in customary law allows for certain exceptions.
The exception of the right of individual or collective self-defence is also, in the view of States,
established in customary law, as is apparent for example from the terms of Article 51 of the
United Nations Charter, which refers to an "inherent right", and from the declaration in
resolution 2625 (XXV). The Parties, who consider the existence of this right to be established as
a matter of customary international law, agree in holding that whether the response to an attack is
lawful depends on the observance of the criteria of the necessity and the proportionality of the
measures taken in self-defence.
Whether self-defence be individual or collective, it can only be exercised in response to an
"armed attack". In the view of the Court, this is to be understood as meaning not merely action
by regular armed forces across an international border, but also the sending by a State of armed
bands on to the territory of another State, if such an operation, because of its scale and effects,
would have been classified as an armed attack had it been carried out by regular armed forces.
The Court quotes the definition of aggression annexed to General Assembly resolution 3314
(XXIX) as expressing customary law in this respect.
The Court does not believe that the concept of "armed attack" includes assistance to rebels in the
form of the provision of weapons or logistical or other support. Furthermore, 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 is a victim of the alleged attack, this being additional to the
requirement that the State in question should have declared itself to have been attacked.
3. The principle of non-intervention (paras. 202 to 209)
The principle of non-intervention involves the right of every sovereign State to conduct its affairs
without outside interference. Expressions of an opinio juris of States regarding the existence of
this principle are numerous. The Court notes that this principle, stated in its own jurisprudence,
has been reflected in numerous declarations and resolutions adopted by international
organizations and conferences in which the United States and Nicaragua have participated. The
text thereof testifies to the acceptance by the United States and Nicaragua of a customary
principle which has universal application. As to the content of the principle in customary law, the
Court defines the constitutive elements which appear relevant in this case: a prohibited
intervention must be one bearing on matters in which each State is permitted, by the principle of
State sovereignty, to decide freely (for example the choice of a political, economic, social and
cultural system, and formulation of foreign policy). Intervention is wrongful when it uses, in
regard to such choices, methods of coercion, particularly force, either in the direct form of
military action or in the indirect form of support for subversive activities in another State.
With regard to the practice of States, the Court notes that there have been in recent years a
number of instances of foreign intervention in one State for the benefit of forces opposed to the
government of that State. It concludes that the practice of States does not justify the view that
any general right of intervention in support of an opposition within another State exists in
contemporary international law; and this is in fact not asserted either by the United States or by
Nicaragua.
4. Collective counter-measures in response to conduct not amounting to armed attack (paras. 210
and 211)
The Court then considers the question whether, if one State acts towards another in breach of the
principle of non-intervention, a third State may lawfully take action by way of counter-measures
which would amount to an intervention in the first State's internal affairs. This would be
analogous to the right of self-defence in the case of armed attack, but the act giving rise to the
reaction would be less grave, not amounting to armed attack. In the view of the Court, under
international law in force today, States do not have a right of "collective" armed response to acts
which do not constitute an "armed attack".
5. State sovereignty (paras. 212 to 214)
Turning to the principle of respect for State sovereignty, the Court recalls that the concept of
sovereignty, both in treaty-law and in customary international law, extends to the internal waters
and territorial sea of every State and to the airspace above its territory. It notes that the laying of
mines necessarily affects the sovereignty of the coastal State, and that if the right of access to
ports is hindered by the laying of mines by another State, what is infringed is the freedom of
communications and of maritime commerce.
6. Humanitarian law (paras. 215 to 220)
The Court observes that the laying of mines in the waters of another State without any warning
or notification is not only an unlawful act but also a breach of the principles of humanitarian law
underlying the Hague Convention No. VIII of 1907. This consideration leads the Court on to
examination of the international humanitarian law applicable to the dispute. Nicaragua has not
expressly invoked the provisions of international humanitarian law as such, but has complained
of acts committed on its territory which would appear to be breaches thereof. In its submissions
it has accused the United States of having killed, wounded and kidnapped citizens of Nicaragua.
Since the evidence available is insufficient for the purpose of attributing to the United States the
acts committed by the contras, the Court rejects this submission.
The question however remains of the law applicable to the acts of the United States in relation to
the activities of the contrast Although Nicaragua has refrained from referring to the four Geneva
Conventions of 12 August 1949, to which Nicaragua and the United States are parties, the Court
considers that the rules stated in Article 3, which is common to the four Conventions, applying to
armed conflicts of a non-international character, should be applied. The United States is under an
obligation to "respect" the Conventions and even to "ensure respect" for them, and thus not to
encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the
provisions of Article 3. This obligation derives from the general principles of humanitarian law
to which the Conventions merely give specific expression.
7. The 1956 treaty (paras. 221 to 225)
In its Judgment of 26 November 1984, the Court concluded that it had jurisdiction to entertain
claims concerning the existence of a dispute between the United States and Nicaragua as to the
interpretation or application of a number of articles of the treaty of Friendship, Commerce and
Navigation signed at Managua on 21 January 1956. It has to determine the meaning of the
various relevant provisions, and in particular of Article XXI, paragraphs I (c) and I (d), by which
the parties reserved the power to derogate from the other provisions.
XI. Application of the law to the facts (paras. 226 to 282)
Having set out the facts of the case and the rules of international law which appear to be in issue
as a result of those facts, the Court has now to appraise the facts in relation to the legal rules
applicable, and determine whether there are present any circumstances excluding the
unlawfulness of particular acts.
1. The prohibition of the use of force and the right of self-defence (paras. 227 to 238)
Appraising the facts first in the light of the principle of the non-use of force, the Court considers
that the laying of mines in early 1984 and certain attacks on Nicaraguan ports, oil installations
and naval bases, imputable to the United States constitute infringements of this principle, unless
justified by circumstances which exclude their unlawfulness. It also considers that the United
States has committed a prima facie violation of the principle by arming and training
the contras, unless this can be justified as an exercise of the right of self-defence.
On the other hand, it does not consider that military manoeuvres held by the United States near
the Nicaraguan borders, or the supply of funds to the contras, amounts to a use of force.
The Court has to consider whether the acts which it regards as breaches of the principle may be
justified by the exercise of the right of collective self-defence, and has therefore to establish
whether the circumstances required are present. For this, it would first have to find that
Nicaragua engaged in an armed attack against El Salvador, Honduras or Costa Rica, since only
such an attack could justify reliance on the right of self-defence. As regards El Salvador, the
Court considers that in customary international law the provision of arms to the opposition in
another State does not constitute an armed attack on that State. As regards Honduras and Costa
Rica, the Court states that, in the absence of sufficient information as to the transborder
incursions into the territory of those two States from Nicaragua, it is difficult to decide whether
they amount, singly or collectively, to an armed attack by Nicaragua. The Court finds that neither
these incursions nor the alleged supply of arms may be relied on as justifying the exercise of the
right of collective self-defence.
Secondly, in order to determine whether the United States was justified in exercising selfdefence, the Court has to ascertain whether the circumstances required for the exercise of this
right of collective self-defence were present, and therefore considers whether the States in
question believed that they were the victims of an armed attack by Nicaragua, and requested the
assistance of the United States in the exercise of collective self-defence. The Court has seen no
evidence that the conduct of those States was consistent with such a situation.
Finally, appraising the United States activity in relation to the criteria of necessity and
proportionality, the Court cannot find that the activities in question were undertaken in the light
of necessity, and finds that some of them cannot be regarded as satisfying the criterion of
proportionality.
Since the plea of collective self-defence advanced by the United States cannot be upheld, it
follows that the United States has violated the principle prohibiting recourse to the threat or use
of force by the acts referred to in the first paragraph of this section.
2. The principle of non-intervention (paras. 239 to 245)
The Court finds it clearly established that the United States intended, by its support of
the contras, to coerce Nicaragua in respect of matters in which each State is permitted to decide
freely, and that the intention of the contras themselves was to overthrow the present Government
of Nicaragua. It considers that if one State, with a view to the coercion of another State, supports
and assists armed bands in that State whose purpose is to overthrow its government, that amounts
to an intervention in its internal affairs, whatever the political objective of the State giving
support. It therefore finds that the support given by the United States to the military and
paramilitary activities of the contras in Nicaragua, by financial support, training, supply of
weapons, intelligence and logistic support, constitutes a clear breach of the principle of nonintervention. Humanitarian aid on the other hand cannot be regarded as unlawful intervention.
With effect from 1 October 1984, the United States Congress has restricted the use of funds to
"humanitarian assistance" to the contrast The Court recalls that if the provision of "humanitarian
assistance" is to escape condemnation as an intervention in the internal affairs of another State, it
must be limited to the purposes hallowed in the practice of the Red Cross, and above all be given
without discrimination.
With regard to the form of indirect intervention which Nicaragua sees in the taking of certain
action of an economic nature against it by the United States, the Court is unable to regard such
action in the present case as a breach of the customary law principle of non-intervention.
3. Collective counter-measures in response to conduct not amounting to armed attack (paras. 246
to 249)
Having found that intervention in the internal affairs of another State does not produce an
entitlement to take collective counter-measures involving the use of force, the Court finds that
the acts of which Nicaragua is accused, even assuming them to have been established and
imputable to that State, could not justify counter-measures taken by a third State, the United
States, and particularly could not justify intervention involving the use of force.
4. State sovereignty (paras. 250 to 253)
The Court finds that the assistance to the contras, the direct attacks on Nicaraguan ports, oil
installations, etc., the mining operations in Nicaraguan ports, and the acts of intervention
involving the use of force referred to in the Judgment, which are already a breach of the principle
of non-use of force, are also an infringement of the principle of respect for territorial sovereignty.
This principle is also directly infringed by the unauthorized overflight of Nicaraguan territory.
These acts cannot be justified by the activities in El Salvador attributed to Nicaragua; assuming
that such activities did in fact occur, they do not bring into effect any right belonging to the
United States. The Court also concludes that, in the context of the present proceedings, the laying
of mines in or near Nicaraguan ports constitutes an infringement, to Nicaragua's detriment, of the
freedom of communications and of maritime commerce.
5. Humanitarian law (paras. 254 to 256)
The Court has found the United States responsible for the failure to give notice of the mining of
Nicaraguan ports.
It has also found that, under general principles of humanitarian law, the United States was bound
to refrain from encouragement of persons or groups engaged in the conflict in Nicaragua to
commit violations of common Article 3 of the four Geneva Conventions of 12 August 1949. The
manual on "Psychological Operations in Guerrilla Warfare", for the publication and
dissemination of which the United States is responsible, advises certain acts which cannot but be
regarded as contrary to that article.
6. Other grounds mentioned in justification of the acts of the United States (paras. 257 to 269)
The United States has linked its support to the contras with alleged breaches by the Government
of Nicaragua of certain solemn commitments to the Nicaraguan people, the United States and the
OAS. The Court considers whether there is anything in the conduct of Nicaragua which might
legally warrant counter-measures by the United States in response to the alleged violations. With
reference to the "Plan to secure peace" put forward by the Junta of the Government of National
Reconstruction (12 July 1979), the Court is unable to find anything in the documents and
communications transmitting the plan from which it can be inferred that any legal undertaking
was intended to exist. The Court cannot contemplate the creation of a new rule opening up a
right of intervention by one State against another on the ground that the latter has opted for some
particular ideology or political system. Furthermore the Respondent has not advanced a legal
argument based on an alleged new principle of "ideological intervention".
With regard more specifically to alleged violations of human rights relied on by the United
States, the Court considers that the use of force by the United States could not be the appropriate
method to monitor or ensure respect for such rights, normally provided for in the applicable
conventions. With regard to the alleged militarization of Nicaragua, also referred to by the
United States to justify its activities, the Court observes that in international law there are no
rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise,
whereby the level of armaments of a sovereign State can be limited, and this principle is valid for
all States without exception.
7. The 1956 Treaty (paras. 270 to 282)
The Court turns to the claims of Nicaragua based on the Treaty of Friendship, Commerce and
Navigation of 1956, and the claim that the United States has deprived the Treaty of its object and
purpose and emptied it of real content. The Court cannot however entertain these claims unless
the conduct complained of is not "measures . . . necessary to protect the essential security
interests" of the United States, since Article XXI of the Treaty provides that the Treaty shall not
preclude the application of such measures. With regard to the question what activities of the
United States might have been such as to deprive the Treaty of its object and purpose, the Court
makes a distinction. It is unable to regard all the acts complained of in that light, but considers
that there are certain activities which undermine the whole spirit of the agreement. These are the
mining of Nicaraguan ports, the direct attacks on ports, oil installations, etc., and the general
trade embargo.
The Court also upholds the contention that the mining of the ports is in manifest contradiction
with the freedom of navigation and commerce guaranteed by Article XIX of the Treaty. It also
concludes that the trade embargo proclaimed on 1 May 1985 is contrary to that article.
The Court therefore finds that the United States is prima facie in breach of an obligation not to
deprive the 1956 Treaty of its object and purpose (pacta sunt servanda), and has committed acts
in contradiction with the terms of the Treaty. The Court has however to consider whether the
exception in Article XXI concerning "measures . . . necessary to protect the essential security
interests" of a Party may be invoked to justify the acts complained of. After examining the
available material, particularly the Executive Order of President Reagan of 1 May 1985, the
Court finds that the mining of Nicaraguan ports, and the direct attacks on ports and oil
installations, and the general trade embargo of 1 May 1985, cannot be justified as necessary to
protect the essential security interests of the United States.
XII. The claim for reparation (paras. 283 to 285)
The Court is requested to adjudge and declare that compensation is due to Nicaragua, the
quantum thereof to be fixed subsequently, and to award to Nicaragua the sum of 370.2 million
US dollars as an interim award. After satisfying itself that it has jurisdiction to order reparation,
the Court considers appropriate the request of Nicaragua for the nature and amount of the
reparation to be determined in a subsequent phase of the proceedings. It also considers that there
is no provision in the Statute of the Court either specifically empowering it or debarring it from
making an interim award of the kind requested. In a cases in which one Party is not appearing,
the Court should refrain from any unnecessary act which might prove an obstacle to a negotiated
settlement. The Court therefore does not consider that it can accede at this stage to this request
by Nicaragua.
XIII. The provisional measures (paras. 286 to 289)
After recalling certain passages in its Order of 10 May 1984, the Court concludes that it is
incumbent on each Party not to direct its conduct solely by reference to what it believes to be its
rights. Particularly is this so in a situation of armed conflict where no reparation can efface the
results of conduct which the Court may rule to have been contrary to international law
XIV. Peaceful settlement of disputes; the Contadora process (paras. 290 to 291)
In the present case the Court has already taken note of the Contadora process, and of the fact that
it had been endorsed by the United Nations Security Council and General Assembly, as well as
by Nicaragua and the United States. It recalls to both Parties to the present case the need to cooperate with the Contadora efforts in seeking a definitive and lasting peace in Central America,
in accordance with the principle of customary international law that prescribes the peaceful
settlement of international disputes, also endorsed by Article 33 of the United Nations Charter.
__________
SUMMARY OF THE OPINIONS APPENDED TO
THE JUDGMENT OF THE COURT
Separate Opinion of Judge Nagendra Singh,
President
The operative part of paragraph 292 (16) of the Judgment adopted unanimously by the Court
which enjoins parties to seek a peaceful solution of their disputes in accordance with
international law really rests on the due observance of two basic principles: namely that of nonuse of force in inter-State relations and that of non-intervention in the affairs of other States. This
in the President's view is the main thrust of the Judgment of the Court rendered with utmost
sincerity to serve the best interests of the community.
In fact, the cardinal principle of non-use of force in international relations has been the pivotal
point of a time-honoured legal philosophy that has evolved particularly after the two world wars
of the current century. The Charter provisions as well as the Latin American Treaty System have
not only developed the concept but strengthened it to the extent that it would stand on its own,
even if the Charter and the Treaty basis were held inapplicable in this case. The obvious
explanation is that the original customary aspect which has evolved with the treaty law
development has come now to stay and survive as the existing modern concept of international
law, whether customary, because of its origins, or "a general principle of international law
recognized by civilized nations". The contribution of the Court has been to emphasize the
principle of non-use of force as one belonging to the realm of jus cogens and hence as the very
cornerstone of the human effort to promote peace in a world torn by strife. Force begets force
and aggravates conflicts, embitters relations and endangers peaceful resolution of the dispute.
There is also the key doctrine of non-intervention in the affairs of States which is equally vital
for the peace and progress of humanity being essentially needed to promote the healthy existence
of the community. The principle of non-intervention is to be treated as a sanctified absolute rule
of law.
States must observe both these principles namely that of non-use of force and that of nonintervention in the best interests of peace and order in the community. The Court has rightly held
them both as principles of customary international law although sanctified by treaty law, but
applicable in this case in the former customary manifestation having been reinvigorated by being
further strengthened by the express consent of States particularly the Parties in dispute here. This
must indeed have all the weight that law could ever commend in any case.
The decision of the Court is in the result of a collegiate exercise reached after prolonged
deliberation and a full exchange of views of no less than fifteen Judges who, working according
to the Statute and Rules of the Court, have examined the legal arguments and all the evidence
before it. In this, as in all other cases, every care has been taken to strictly observe the procedures
prescribed and the decision is upheld by a clear majority. What is more, the binding character of
the Judgment under the Statute (Art. 59) is made sacrosanct by a provision of the UN Charter
(Art. 94): all Members of the United Nations have undertaken an obligation to comply with the
Court's decisions addressed to them and to always respect the validity of the Judgment.
__________
Separate Opinion of Judge Lachs
Judge Lachs begins by drawing attention to the requirements of the Statute in respect of the
personal qualities and diversity of origin that must characterize Members of the Court, and
deprecates any aspersion upon their independence.
On the substance of the Judgment he would have preferred more attention to be given to foreign
assistance to the opposition forces in El Salvador, and different formulae to have been used in
various places.
Judge Lachs returns to some aspects of jurisdiction, considering that insufficient weight had
previously been given to the forty years that had elapsed before any public objection had been
raised against the validity of Nicaragua's acceptance of the Court's jurisdiction. When that
validity had been privately questioned in connection with a case in the mid-1950s, action should
have been taken by the United Nations: Nicaragua should have been asked to complete any
necessary formalities and, if it failed to do so, would have been removed from the list of States
subject to the compulsory jurisdiction of the Court. The United Nations having taken no action, it
was legitimate to view the imperfection as cured by acquiescence over a very long period. The
jurisdiction of the Court based on the FCN Treaty of 1956 gave no cause for doubt.
Judge Lachs also deals with the question of the justiciability of the case: the close relationship
between legal and political disputes, as between law and politics. International law today covers
such wide areas of international relations that only very few domains - for instance, the problem
of disarmament, or others, specifically excluded by States - are not justiciable. He specifically

instances the case concerning United States Diplomatic and Consular Staff in Tehran.
Referring to the Court's refusal to grant a hearing to El Salvador at the jurisdictional stage, Judge
Lachs states that he has come to view it as a judicial error which does not, however, justify any
unrelated conclusions.
The broad confrontation between the Parties should, in Judge Lachs's view, be settled within the
framework of the Contadora Plan, in co-operation with all States of the region. The area, torn by
conflicts, suffering from under-development for a long time, requires a new approach based on
equal consideration of the interests of all concerned in the spirit of good-neighbourly relations.
__________
Separate Opinion of Judge Ruda
The separate Opinion of Judge Ruda deals with four subjects. In the first place, Judge Ruda does
not accept the reservation expressed by the United States in the letter dated 18 January 1985 "in
respect of any decision by the Court regarding Nicaragua's claims". In Judge Ruda's view,
pursuant to Article 94, paragraph I, of the Charter of the United Nations, the Member States of
the United Nations have formally accepted the obligation to comply with the Court's decisions.
The second part of the Opinion refers to the Vandenberg Amendment. Judge Ruda voted against
the application of the Amendment, for the reasons stated in the separate Opinion which he
submitted in 1984.
In the third part, Judge Ruda deals with the question of self-defence. He explains that his
conclusions are the same as those reached by the Court, but in his view it is not necessary to
enter into all the factual details, because assistance to rebels is not per se a pretext for selfdefence from the legal point of view.
The fourth part is devoted to the reasons why Judge Ruda, despite having voted in 1984 against
the Treaty of Friendship, Commerce and Navigation as a basis of the Court's jurisdiction,
believes he is bound to vote on the substantive issues submitted to the Court on this subject.
__________
Separate Opinion of Judge Elias
Judge Elias considers that, following the Court's Judgment in the jurisdictional phase, the
multilateral treaty reservation attached to the United States declaration accepting jurisdiction
under the Optional Clause was left in abeyance and had no further relevance unless El Salvador,
Honduras or Costa Rica intervened in the phase on merits and reparation. For the Court to have
applied it was therefore incorrect and tantamount to invoking a power to revise its decision on
jurisdiction and admissibility on behalf of non-parties to the case.
__________
Separate Opinion of Judge Ago
While subscribing to the Judgment as a whole and approving in particular the position adopted
by the Court concerning the United States' multilateral treaty reservation, Judge Ago remains
hesitant about certain points. For example, he feels that the Court made a somewhat too hasty
finding as to the quasi-identity of substance between customary international law and the law
enshrined in certain major multilateral treaties of universal character, and was also somewhat too
ready to see the endorsement of certain principles by UN and OAS resolutions as proof of the
presence of those principles in the opinio juris of members of the international community. Judge
Ago also feels obliged to draw attention to what he views as some partially contradictory aspects
of the Court's assessment of the factual and legal situation. He further considers that some
passages of the Judgment show a paucity of legal reasoning to support the Court's conclusions as
to the imputability of certain acts to the Respondent qua acts giving rise to international
responsibility, and would have preferred to see the Court include a more explicit confirmation of
its case-law on this subject.
__________
Separate Opinion of Judge Sette-Camara
Judge Sette-Camara fully concurs with the Judgment because he firmly believes that "the nonuse of force as well as non-intervention - the latter as a corollary of equality of States and selfdetermination - are not only cardinal principles of customary international law but could in
addition be recognized as peremptory rules of customary international law which impose
obligations on all States". His separate opinion deals only with subparagraph (1) of the operative
part, against which he has voted. He maintains that the multilateral treaty reservation, appended
to the United States 1946 Declaration of Acceptance of the Jurisdiction of the Court according to
Article 36, paragraph 2, of the Statute, cannot be applied to the present case, since none of the
decisions taken in the operative part can in any way "affect" third States, and in particular El
Salvador. The case is between Nicaragua and the United States and the binding force of the
Court's decision is confined to these two Parties. Judge Sette-Camara recognizes the right of any
State making Declarations of Acceptance to append to them whatever reservations it deems fit.
However, he contends that the Court is free, and indeed bound, to interpret those reservations. He
regrets that the application of the multilateral treaty reservation debarred the Court from resting
the Judgment on the provisions of the Charter of the United Nations and the Charter of the
Organization of American States, and forced it to resort only to principles of customary

international law and the bilateral Treaty of Friendship, Commerce and Navigation of 1956. He
submits that the law applied by the Judgment would be clearer and more precise if the Court had
resorted to the specific provisions of the relevant multilateral convention
__________
Separate Opinion of Judge Ni
Judge Ni's primary concern, as expressed in his separate opinion, is with respect to the
"multilateral treaty reservation" invoked by the United States. In his view, any acceptance of its
applicability entailed (1) the exclusion of the Court from exercising jurisdiction in so far as
Nicaragua's claims were based on the multilateral treaties in question, and (2) the preclusion, if
the case was on other grounds still in the Court for adjudication of the merits, of the application
of such multilateral treaties. In the instant case, however, the United States, while invoking the
multilateral treaty reservation to challenge the exercise of jurisdiction by the Court, had in the
meantime persistently claimed that the multilateral treaties, which constitute the very basis of its
reservation, should alone be applied to the case in dispute. That claim amounted in effect to a
negation of its own reservation and, taking into account all the relevant circumstances, ought to
have been considered as a waiver of the multilateral treaty reservation. Such being the case,
Judge Ni differed from the majority of the Court in that he considered that the rules contained in
multilateral treaties, as well as customary international law, should, where appropriate, have been
applied to the case.
__________
Dissenting Opinion of Judge Oda
Judge Oda agrees with the Court's recognition of the applicability of the multilateral treaty
proviso attached to the United States' 1946 declaration but considers that, having thus decided
that the dispute had arisen under a multilateral treaty, it should have ceased to entertain the
application of Nicaragua on the basis of that declaration. The Court had been wrong to interpret
the exclusion of the dispute by that proviso as merely placing restrictions upon the sources of law
to which it was entitled to refer.
Judge Oda further believes that, to the extent that the Nicaraguan claims presupposed the Court's
jurisdiction under declarations made pursuant to Article 36 (2) of the Statute, which refers to
"legal disputes", they should have been declared non-justiciable, since the dispute was not
"legal" within the meaning and intention of that clause or, even if it were, it was not one that the
Court could properly entertain: as a political dispute, it was more suitable for resolution by other
organs and procedures. Moreover, the facts the Court could elicit by examining the evidence in
the absence of the Respondent fell far short of what was needed to show a complete picture.
Judge Oda thus considers that, in so far as the Court could properly entertain the case, it could do
so on the basis of Article 36 (1) of the Statute, where the term "all matters specially provided for
in . . . treaties . . . in force" gave no such grounds for questioning the "legal" nature of the
dispute. The Court could therefore legitimately examine any breach of the concrete terms of the
1956 Treaty of Friendship, Commerce and Navigation. In Judge Oda's view, the mining of the
Nicaraguan ports had constituted such a breach, for which the United States had incurred
responsibility.
Judge Oda emphasizes that his negative votes on many counts of the Judgment must not be
interpreted as implying that he is opposed to the rules of law concerning the use of force or
intervention, of whose violation the United States has been accused, but are merely a logical
consequence of his convictions on the subject of jurisdiction under Article 36 (2) of the Statute.
Finally, Judge Oda regrets that the Court has been needlessly precipitate in giving its views on
collective self-defence in its first Judgment to broach that subject.
__________
Dissenting Opinion of Judge Schwebel
Judge Schwebel dissented from the Court's Judgment on factual and legal grounds. He agreed
with the Court in its holdings against the United States for its failure to make known the
existence and location of mines laid by it and its causing the publication of a manual advocating
acts in violation of the law of war. But Judge Schwebel concluded that the United States
essentially acted lawfully in exerting armed pressures against Nicaragua, both directly and
through its support of the contras, because Nicaragua's prior and sustained support of armed
insurgency in El Salvador was tantamount to an armed attack upon El Salvador against which the
United States could react in collective self-defence in El Salvador's support.
Judge Schwebel found that, since 1979, Nicaragua had assisted and persisted in providing largescale, vital assistance to the insurgents in El Salvador. The delictual acts of Nicaragua had not
been confined to providing the Salvadoran rebels with large quantities of arms, munitions and
supplies, which of themselves arguably might be seen as not tantamount to armed attack.
Nicaragua had also joined with the Salvadoran rebels in the organization, planning and training
for their acts of insurgency, and had provided them with command-and-control facilities, bases,
communications and sanctuary which enabled the leadership of the Salvadoran rebels to operate
from Nicaraguan territory. That scale of assistance, in Judge Schwebel's view, was legally
tantamount to an armed attack. Not only was El Salvador entitled to defend itself against that
armed attack, it had called upon the United States to assist it in the exercise of collective selfdefence. The United States was entitled to do so, through measures overt or covert. Those
measures could be exerted not only in El Salvador but against Nicaragua on its own territory.
In Judge Schwebel's view, the Court's conclusion that the Nicaraguan Government was not
"responsible for any flow of arms" to the Salvadoran insurgents was not sustained by "judicial or
judicious" considerations. The Court had "excluded, discounted and excused the unanswerable
evidence of Nicaragua's major and maintained intervention in the Salvadoran insurgency".
Nicaragua's intervention in El Salvador in support of the Salvadoran insurgents was, Judge
Schwebel held, admitted by the President of Nicaragua, affirmed by Nicaragua's leading witness
in the case, and confirmed by a "cornucopia of corroboration".
Even if, contrary to his view, Nicaragua's actions in support of the Salvadoran insurgency were
not viewed as tantamount to an armed attack, Judge Schwebel concluded that they undeniably
constituted unlawful intervention. But the Court, "remarkably enough", while finding the United
States responsible for intervention in Nicaragua, failed to recognize Nicaragua's prior and
continuing intervention in El Salvador.
For United States measures in collective self-defence to be lawful, they must be necessary and
proportionate. In Judge Schwebel's view, it was doubtful whether the question of necessity in this
case was justiciable, because the facts were so indeterminate, depending as they did on whether
measures not involving the use of force could succeed in terminating Nicaragua's intervention in
El Salvador. But it could reasonably be held that the necessity of those measures was indicated
by "persistent Nicaraguan failure to cease armed subversion of El Salvador".
Judge Schwebel held that "the actions of the United States are strikingly proportionate. The
Salvadoran rebels, vitally supported by Nicaragua, conduct a rebellion in El Salvador; in
collective self-defence, the United States symmetrically supports rebels who conduct a rebellion
in Nicaragua. The rebels in El Salvador pervasively attack economic targets of importance in El
Salvador; the United States selectively attacks economic targets of military importance" in
Nicaragua.
Judge Schwebel maintained that, in contemporary international law, the State which first
intervenes with the use of force in another State - as by substantial involvement in the sending of
irregulars onto its territory - is, prima facie, the aggressor. Nicaragua's status as prima
facie aggressor can only be confirmed upon examination of the facts. "Moreover", Judge
Schwebel concluded, "Nicaragua has compounded its delictual behaviour by pressing false
testimony on the Court in a deliberate effort to conceal it. Accordingly, on both grounds,
Nicaragua does not come before the Court with clean hands. Judgment in its favour thus
unwarranted, and would be unwarranted even if it should be concluded - as it should not be - that
the responsive actions of the United States were unnecessary or disproportionate."
__________
Dissenting Opinion of Judge Sir Robert Jennings
Judge Sir Robert Jennings agreed with the Court that the United States multilateral treaty
reservation is valid and must be respected. He was unable to accept the Court's decision that it
could, nevertheless, exercise jurisdiction over the case by applying customary law in lieu of the
relevant multilateral treaties. Accordingly, whilst able to vote in favour of certain of the Court's
findings, he felt compelled to vote against its decisions on the
3. CASE CONCERNING THE BARCELONA TRACTION, LIGHT AND POWER

COMPANY, LIMITED (SECOND PHASE)
Judgment of 5 In its judgment in the second phase of tht: case concerning the Barcelona
Traction, Light and Rwer C'ompany, Limited (New Application: 1962) (Belgium v. SIpain),
the Court rejected Belgium's claim by fifteen votes tal one. The claim, which was brought
before the Court on 19 June 1962, arose out of the adjudication in bankruptcy in Spain of
Barcelona Traction, a company incorporat1:d in Canada. Its object was to seek reparation for
damage alleged by Belgium to have been sustained by Belgian nationals;, shareholders in the
company, as a result of acts said to be contrary to international law committed towards the
company by organs of the Spanish State. The Court found that Belgium lacked jus standi to
exercise diplomatic protection of shareholders in a1 Canadian company with respect to
measures taken against that company in Spain. Judges Petdn and Onyeama appended a joint
declaration to the Judgment; Judge Lachs appended a d~xlaration. President Bustamante y
Rivero and Judges Sir Gerald Fitzmaurice, Tanaka, Jessup, Morelli, Padilla hlervo, Gros and
Ammoun appended Separate Opinions. Judge ad hoc Riphagen appended a Dissenting
Opinion. Background of Events in the Case (paras. 8-24 of the Judgment) The Barcelona
Traction, Light and Rwer Company, Limited, was incorporated in 191 1 inToronto (Chnada),
where it has its head office. For the purpose of creating and developing an electric power
production and distribution system in Catalonia (Spain) it formed a number of subsidiary
companies, of which some had their registered offices in Canada and the others in Spain. In
1936 the subsidiary companies supplied the major part of Catalonia's eltxtricity requirements.
According to the Belgian Governlr~ent, some years after the first world war Barcelona
Traction's share capital came to be very largely held by Belgian nationals, but the Spanish
Government contends that the Be1g:ian nationality of the shmeholders is not proven.
Barcelona Traction issued several series d bonds, principally in sterling. The sterling bonds
were serviced out of transfers to Barcelona Traction effected by the subsidiary companies
operating in Spain. In 1936 the servicing of the Barcelona lktion bonds was suspended on
account of the Spanish civil war. After that war the Spanish exchange control authorities
refused to authorize the transfer of the foreign currency necessary for the resumption of thf:
servicing of the sterling bonds. Subsequently, when the Belgian Government complained of
this, the Spanish Government stated that the transfers could not be authorized unless it ,were
shown that the foreign currency was to be used to repay debts arising from the genuine
importation of foreign capital into Spain, and that this had not been established. In 1948 three
Spanish holders of recently acquired Barcelona 'liaction sterling bonds petitioned that court
of Reus (Rovince of Tarragona) for a declaration adjiudging the company bankrupt,
on,account of failure to pay tlhe interest on the bonds. On 12 February 1948 a judgment was
given declaring the company bankrupt and ordering the seizure of the assets of Barcelona
Traction and of two of its subsidiary companies. Pursuant to this judgment the principal
management personnel of the WID companies were dismissed and Spanish directors
appointed. Shortly afterwards, these measures were extended to the other subsidiary
companies. New shmes of the subsidiary companies were created, which were sold by public
auctiion in 1952 to a newly-formed company, Fuerzas Electricas ~de Cataluiia, S.A. (Fecsa),
which thereupon acquired comlplete control of the undertaking in Spain. Proceedings wens
brought without success in the Spanish courts by various c:ompanies or persons. According
to the Spanish Government, 2,736 orders were made in the case ancl494 judgments given by
lower and 37 by higher courts before it was submitted to the International Court of Justice.
The Court found that in 1948 Barcelona Traction, which had not received a judicial notice of
the bankruptcy proceedings, and was not represe:nted before the Reus court, took no
proceedings in the Spanish courts until 18 June and thus did not enter a plea of opposition
against the bankruptcy judgment within the time-limit of eight days from the date of
publication of the judgment laid down in Spanish legislation. The Belgian Governme:nt
contends, however, that the notification and publication did not comply with the relevant
legal requirements and that the eight-day time-limit never began to run. Representations were
made to the Spanish Government by the British, Canadian, United States and Belgian
Governments as from 19481 or 1949. The interposition of the Canadim Government ct:ased
entirely in 1955. Proceedings before the International Court and the Nature of the Claim
(paras. 1-7 and 263 1 of the Judgment) The Belgian Government filed a first Application with
the Court against the Spanish Government in 1958. In 1961 it gave notice of discontinuance
of the proceedings, with a view to negotiations between the representatives of the private
interests conceimed, and the case was removed from the Court's General List. The
negotiations having failed, the Belgian Government on 19 June 1962 submitted to the Court a
new Application. In 1963 the Spanish Government raised four preliminary objections to this
Application. By its Judgment of 24 July 1964, the Court rejected the first and second
objections and joined the third and fourth to the merits. In the subsequent: written and oral
proceedings the Parties supplied abundant material and information. The Court observed that
the um~usualength of the proceedings was due to the very long time-limits requested by the
Parties for the preparation of their written pleadings and to their repeated .requests for an
extension of those limits. The Court did not find that it should refuse those requests, but it
remained convinced that it was in the interest of the authority of international justice for caws
to be decided without unwarranted delay. The claim submitted to the Court had been
presented on behalf of natural and juristic persons, alleged to be Belgian nationals and
shareholders in Barcelona Traction, a company incorporated in Canada and having its head
office there. The object of the Application was reparation for damage allegedly caused to
thoser persons by the conduct, said to be conSummaries of Judgments, Advisory Opinions
and Orders of the International Court of Justice Not an official document trary to
international law, of various organs of the Spanish State towards that company. The third
preliminary objection of the Spanish Government, which had been joined to the merits, was
to the effect that the Belgian Governme.nt lacked capacity to submit any claim in respect of
wrongs done to a Canadialn company, even if the shareholders w8e:re Belgian. Th~e foruth
preliminary objection, which was :also joined to the merits, was to the effect that local
remedies available in Slpain lhad not been exhausted. The case submitted to the Court
principally concerned three States, Belgium, Spain and Canada, and it was accordingly
necessary to deal wit11 a series of problems arising out of this triangular relationship. The
Belgian Government's jus standi (paras. 32-101 of the Judgment) capacity to take action. As
regards the first of these possibilities, the Court observed that whilst Barcelona Traction had
lost dl its assets in Spain and been placed in receivership in Canada, it could not be
contended that the corporate entity of the company had ceased to exist or that it had lost its
capacity to take corporate action. So far as the second possibility was concerned, it was not
disputed that the company had been incorporated in Canada and had its registered office in
that country, and its Canadian nationality had received general recognition. The Canadian
Government had exercised the protection of Barcelona 'Ifaction for a number of years. If at a
certain point the Canadian Government ceased to act on behalf of Barcelona 'Ifaction, it
nonetheless retained its capacity to do so, which the Spanish Government had not questioned.
Whatever the reasons for the Chadian Government's change of attitude, that fact could not
constitute a justification for the exercise of diplomatic prolection by another government. The Court first addressed itself to the qi~estisn, raised by It had been maintained that a State
could make a claim the third preliminary objection, which had beenjoined to the when
investments by its nationals abroad, such investments merits, of the right of Belgi~u~m
toexercise diplomatic protec- being part of a national economic resources, were tion of
Belgian shareholders in a compimy incorporated prejuolicially affected in violation of the
lright of the state in Canada* the measures c.c)m~lained of h;aving been taken itself to have
its nationals enjoy a certain treatment. But, in in relation not to any Belgian national to the
company the present state of affairs, such a right could only ~sult from itself. a treaty or
specid agreement. And no instrument of such a The Court observed that ,when a State
admitted into its ter- kind was in force between Belgium and Spain. rit0ry foreign
in~e~fXIlent~ tX foreign nationals it Was bound ~t had also been maintained that, for
reasons of equity, a to extend to them the protec1:ion of the law and assumed obli- state
should be able, in certain cases, to take up the protec- gations concerning the trerltment to be
afforded them. But tion of its nationals, in a company which had such obligations were not
absolute. In order to bring a claim been the victim of a violation of international lawe me
court in respect of the breach of such an obligation, a State must consitlered that the adoption
of the theory of diplomatic pro- first establish its right to do tro. tection of shareholders as
such would open the door to comIn the field of diplomatic protection, international law was
peting claims on the part of different States, which could crein continuous evolution and was
called ypon 1:o recognize ate an atmosphere of insecurity in international economic
institutions of municipal law. In municipal law, the concept relations. In the particular
circumstances of the pRsent case, of the company was foundled on a firm distinction
between where the company's national State was able to act, the Court the rights of the
company and those of the shareholder. Only was not of the opinion that jus standi was
conferred on the the company, which was endowed with legal personality, Belgian
Government by considerations of equity. could take action in respect of matters that were of a
corporate character. A wrong done to the company frequently ~h ~~~~t~~~~~i~i~~ caused
prejudice to its sharmholders, but this did not imply (pm. 102 103 ofthe Judgment) that both
were entitled to claim compensation. Whenever a shareholder's interests were harmed by an
act done to the Thc: Court took cognizance of the great amount of docucompany, it was to
the latter that he had tc, look to institute mentary and other evidence submitted by the Parties
and appropriate action. An act infringing onl:y the company's : fully appreciated the
importance of the legal problems raised rights did not involve responsibility towan$ the
sharehold- by the allegation which was at the root of the Belgian claim ers, even if their
interests wt:re affected. In for the situ- and which concerned denials of justice allegedly
committed ation to be different, the act complained of must be aimed at by organs of the
Spanish State. However, the possession by the direct rights of the share'holder as such (which
was not the the Belgian Government of a right of protection was a prereqcase here since the
Belgian Government had itself admitted uisite for the examination of such problems. Since
no jus that it had not based its clairr~ on an infringeiment of the direct standi before the Court
had been established, it was not for rights of the shareholders). the Court to pronounce upon
any other aspect of the case. International law had to refer to those rules generally
Accordingly, the Court rejected the Belgian Governaccepted by municipal legal systems. An
injury to the share- ment's claim by 15 votes to 1.12 votes of the majority being holder's
interests resulting from an injury to the rights of the based on the reasons set out above.
company was insufficient t'c) found a claim. Where it was a question of an unlawful act
committed against a company DECLARATIONS AND SEPARATE AND representing
foreign capital, the general rule of international DISSENTING OPINIONS law authorized
the national State of the company alone to exercise diplomatic protection for the purpose of
seeking Judge ad hoc Riphagen appended to the Judgment a Disredress. No rule of
interndonal law expressly conferred senting Opinion in which he stated that he was unable to
consuch a right on the sharehol~tler's national State. cur in the Judgment as the legal
reasoning followed by the The Court considered winlether there mi&t not be, in the Court
appeared to him to fail to appreciate the nature of present case, special circulnstances for
which the general the rubs of custo~ary public international law applicable in rule might not
take effect. Il'wo situations needed to be stud- the Psent case. ied: (a) the case of the company
having cerlsed to exist, and Among the fifteen members of the majority, three sup (b) the case
of the protecti~~g State of the company lacking ported the operative provisions of the
Judgment (rejecting 77 the Belgian Government's claim) for diffei-ent reasons, and appended
Separate Opinions to the Judgme:nt. Judge Tanaka stated that the two preliminary objections
joined to the merits ought to have been dismissed, but that the Belgian Government's
allegation concerning denials of justice was unfounded. Judge Jessup came to the
concln~sion that a State, under certain circumstances, had a right to present a diplomatic
claim on behalf of shareholders who were its nationals, but that Belgium had not succeeded
in proving the Belgian nationality, between the critical dates, of those natural and juristic
persons on whose behalf it had sought to claim. Judge Gros held that it was the State whose
national economy was adversely affected that possessed the right to take action but that proof
of Barcelona Traction's appurtenance to the Belgian economy had not been produced. Among
the twelve members of the majority who supported the operative: provision of the Judgment
on the basis of the reasoning set out in the Judgment (lack of jus srandi on the part of the
shareholders' national State). President Bustamante y Rivero and Judges Sir Gerald
Fitzmaurice, Morelli, Fadilla Nervo and Ammoun (Separate Opinions) and Judges Petdn and
Onyearna (joint declaration) and Judge Lachs (declaration) stated that nevertheless there
were certain differences between their reasoning and that contained in the Judgment, or that
there were certain observations which they wished to add. (Judge Sir Muharnrnad Zafrulla
Khan had informed the President at the beginning of the Preliminary Objections stage that,
having been consulted by one of the Parties concerning the case bsfore his election as a
Member of the Court, he considered that he ought not to participate in its decision.)
4. Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2662
March 26, 1949
SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel
MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO
TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT
PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville
Hussey for respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and

Commanding General of the Japanese Imperial Forces in The Philippines during a period
covering 19433 and 19444 who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and
failed "to discharge his duties as such command, permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces
in violation of the laws and customs of war" comes before this Court seeking to establish the
illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit
respondents Melville S. Hussey and Robert Port from participating in the prosecution of
petitioner's case before the Military Commission and to permanently prohibit respondents from
proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal arguments.
First. "That Executive Order No. 68 is illegal on the ground that it violates not only the
provision of our constitutional law but also our local laws to say nothing of the fact (that) the
Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations
covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law, national
and international." Hence petitioner argues "That in view off the fact that this commission has
been empanelled by virtue of an unconstitutional law an illegal order this commission is without
jurisdiction to try herein petitioner."
Second. That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert
Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines is
a diminution of our personality as an independent state and their appointment as prosecutor are a
violation of our Constitution for the reason that they are not qualified to practice law in the
Philippines.
Third. That Attorneys Hussey and Port have no personality as prosecution the United State not
being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and
regulation governing the trial of accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that
The Philippines renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of
international jurisprudence established by the United Nation all those person military or civilian
who have been guilty of planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and incidental thereto in violation of the laws
and customs of war, of humanity and civilization are held accountable therefor. Consequently in
the promulgation and enforcement of Execution Order No. 68 the President of the Philippines
has acted in conformity with the generally accepted and policies of international law which are
part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upheld by this Court in the case of
Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said
War is not ended simply because hostilities have ceased. After cessation of armed
hostilities incident of war may remain pending which should be disposed of as in time of
war. An importance incident to a conduct of war is the adoption of measure by the
military command not only to repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to thwart or impede our military
effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed
the power to create a military commission for the trial and punishment of war criminals is
an aspect of waging war. And in the language of a writer a military commission has
jurisdiction so long as a technical state of war continues. This includes the period of an
armistice or military occupation up to the effective of a treaty of peace and may extend
beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals,
America Bar Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate this
unfinished aspect of war namely the trial and punishment of war criminal through the issuance
and enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for
acts committed in violation of the Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied
that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly
based on the generally accepted principals of international law. In facts these rules and principles
were accepted by the two belligerent nation the United State and Japan who were signatories to
the two Convention, Such rule and principles therefore form part of the law of our nation even if
the Philippines was not a signatory to the conventions embodying them for our Constitution has
been deliberately general and extensive in its scope and is not confined to the recognition of rule
and principle of international law as continued inn treaties to which our government may have
been or shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the
Philippines was under the sovereignty of United States and thus we were equally bound together
with the United States and with Japan to the right and obligation contained in the treaties
between the belligerent countries. These rights and obligation were not erased by our assumption
of full sovereignty. If at all our emergency as a free state entitles us to enforce the right on our
own of trying and punishing those who committed crimes against crimes against our people. In
this connection it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil.,
372):
. . . The change of our form government from Commonwealth to Republic does not affect
the prosecution of those charged with the crime of treason committed during then
Commonwealth because it is an offense against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we were
a Commonwealth are triable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and
Robert Port in the prosecution of his case on the ground that said attorney's are not qualified to
practice law in Philippines in accordance with our Rules of court and the appointment of said
attorneys as prosecutors is violative of our national sovereignty.
In the first place respondent Military Commission is a special military tribunal governed by a
special law and not by the Rules of court which govern ordinary civil court. It has already been
shown that Executive Order No. 68 which provides for the organization of such military
commission is a valid and constitutional law. There is nothing in said executive order which
requires that counsel appearing before said commission must be attorneys qualified to practice
law in the Philippines in accordance with the Rules of Court. In facts it is common in military
tribunals that counsel for the parties are usually military personnel who are neither attorneys nor
even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United States, which has submitted the vindication of
crimes against her government and her people to a tribunal of our nation should be allowed
representation in the trial of those very crimes. If there has been any relinquishment of
sovereignty it has not been by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of
comity is to allow them representation in said trials.
Alleging that the United State is not a party in interest in the case petitioner challenges the
personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the
United State and its people have been equally if not more greatly aggrieved by the crimes with
which petitioner stands charged before the Military Commission. It can be considered a privilege
for our Republic that a leader nation should submit the vindication of the honor of its citizens
and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction over
the crimes charged which fall under the provisions of Executive Order No. 68, and having said
petitioner in its custody, this Court will not interfere with the due process of such Military
commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda
for Violation of the laws and customs of land warfare.
Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court
to practice law were appointed prosecutor representing the American CIC in the trial of the case.
The commission was empanelled under the authority of Executive Order No. 68 of the President
of the Philippines the validity of which is challenged by petitioner on constitutional grounds.
Petitioner has also challenged the personality of Attorneys Hussey and Port to appear as
prosecutors before the commission.
The charges against petitioner has been filed since June 26, 1948 in the name of the people of the
Philippines as accusers.
We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port.
It appearing that they are aliens and have not been authorized by the Supreme Court to practice
law there could not be any question that said person cannot appear as prosecutors in petitioner
case as with such appearance they would be practicing law against the law.
Said violation vanishes however into insignificance at the side of the momentous question
involved in the challenge against the validity of Executive Order No. 68. Said order is challenged
on several constitutional ground. To get a clear idea of the question raised it is necessary to read
the whole context of said order which is reproduced as follows:
EXECUTIVE ORDER NO. 68.
ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING
RULES AND REGULATION GOVERNING THE TRIAL OF ACCUSED WAR
CRIMINAL.
I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the
Constitution and laws of the Philippines do hereby establish a National War Crimes
Office charged with the responsibility of accomplishing the speedy trial of all Japanese
accused of war crimes committed in the Philippines and prescribe the rules and regulation
such trial.
The National War crimes office is established within the office of the Judge Advocate
General of the Army of the Philippines and shall function under the direction supervision
and control of the Judge Advocate General. It shall proceed to collect from all available
sources evidence of war crimes committed in the Philippines from the commencement of
hostilities by Japan in December 1941, maintain a record thereof and bring about the
prompt trial maintain a record thereof and bring about the prompt trial of the accused.
The National War Crimes Office shall maintain direct liaison with the Legal Section
General Headquarters, Supreme Commander for the Allied power and shall exchange
with the said Office information and evidence of war crimes.
The following rules and regulation shall govern the trial off person accused as war
criminals:
ESTABLISHMENT OF MILITARY COMMISSIONS
(a) General. person accused as war criminal shall be tried by military commission to
be convened by or under the authority of the Philippines.
II. JURISDICTION
(a) Over Person. Thee military commission appointed hereunder shall have
jurisdiction over all persons charged with war crimes who are in the custody of the
convening authority at the time of the trial.
(b) Over Offenses. The military commission established hereunder shall have
jurisdiction over all offenses including but not limited to the following:
(1) The planning preparation initiation or waging of a war of aggression or a war in
violation of international treaties agreement or assurance or participation in a common
plan or conspiracy for the accomplishment of any of the foregoing.
(2) Violation of the laws or customs of war. Such violation shall include but not be
limited to murder ill-treatment or deportation to slave labor or for other purpose of
civilian population of or in occupied territory; murder or ill-treatment of prisoners of war
or internees or person on the seas or elsewhere; improper treatment of hostage; plunder of
public or private property wanton destruction of cities towns or village; or devastation not
justified by military necessity.
(3) Murder extermination enslavement deportation and other inhuman acts committed
against civilian population before or during the war or persecution on political racial or
religion ground in executive of or in connection with any crime defined herein whether or
not in violation of the local laws.
III. MEMBERSHIP OF COMMISSIONS
(a) Appointment. The members of each military commission shall be appointed by the
President of the Philippines or under authority delegated by him. Alternates may be
appointed by the convening authority. Such shall attend all session of the commission,
and in case of illness or other incapacity of any principal member, an alternate shall take
the place of that member. Any vacancy among the members or alternates, occurring after
a trial has begun, may be filled by the convening authority but the substance of all
proceeding had evidence taken in that case shall be made known to the said new member
or alternate. This facts shall be announced by the president of the commission in open
court.
(b) Number of Members. Each commission shall consist of not less than three (3)
members.
(c) Qualifications. The convening authority shall appoint to the commission persons
whom he determines to be competent to perform the duties involved and not disqualified
by personal interest or prejudice, provided that no person shall be appointed to hear a
case in which he personally investigated or wherein his presence as a witness is required.
One specially qualified member whose ruling is final in so far as concerns the
commission on an objection to the admissibility of evidence offered during the trial.
(d) Voting. Except as to the admissibility of evidence all rulings and finding of the
Commission shall be by majority vote except that conviction and sentence shall be by the
affirmative vote of not less than conviction and sentence shall be by the affirmative vote
of not less than two-thirds (2\3) of the member present.
(e) Presiding Member. In the event that the convening authority does not name one of
the member as the presiding member, the senior officer among the member of the
Commission present shall preside.
IV. PROSECUTORS
(a) Appointment. The convening authority shall designate one or more person to
conduct the prosecution before each commission.
(b) Duties. The duties of the prosecutor are:
(1) To prepare and present charges and specifications for reference to a commission.
(2) To prepare cases for trial and to conduct the prosecution before the commission of all
cases referred for trial.
V. POWER AND PROCEDURE OF COMMISSION
(a) Conduct of the Trial. A Commission shall:
(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the
charges, excluding irrelevant issues or evidence and preventing any unnecessary delay or
interference.
(2) Deal summarily with any contumacy or contempt, imposing any appropriate
punishment therefor.
(3) Hold public session when otherwise decided by the commission.
(4) Hold each session at such time and place as it shall determine, or as may be directed
by the convening authority.
(b) Rights of the Accused. The accused shall be entitled:
(1) To have in advance of the trial a copy of the charges and specifications clearly worded
so as to apprise the accused of each offense charged.
(2) To be represented, prior to and during trial, by counsel appointed by the convening
authority or counsel of his own choice, or to conduct his own defense.
(3) To testify in his own behalf and have his counsel present relevant evidence at the trial
in support of his defense, and cross-examine each adverse witness who personally
appears before the commission.
(4) To have the substance of the charges and specifications, the proceedings and any
documentary evidence translated, when he is unable otherwise to understand them.
(c) Witnesses. The Commission shall have power:
(1) To summon witnesses and require their attendance and testimony; to administer oaths
or affirmations to witnesses and other persons and to question witnesses.
(2) To require the production of documents and other evidentiary material.
(3) To delegate the Prosecutors appointed by the convening authority the powers and
duties set forth in (1) and (2) above.
(4) To have evidence taken by a special commissioner appointed by the commission.
(d) Evidence.
(1) The commission shall admit such evidence as in its opinion shall be of assistance in
proving or disproving the charge, or such as in the commission's opinion would have
probative value in the mind of a reasonable man. The commission shall apply the rules of
evidence and pleading set forth herein with the greatest liberality to achieve expeditious
procedure. In particular, and without limiting in any way the scope of the foregoing
general rules, the following evidence may be admitted:
(a) Any document, irrespective of its classification, which appears to the commission to
have been signed or issued by any officer, department, agency or member of the armed
forces of any Government without proof of the signature or of the issuance of the
document.
(b) Any report which appears to the commission to have been signed or issued by the
International Red Cross or a member of any medical service personnel, or by any
investigator or intelligence officer, or by any other person whom commission considers

as possessing knowledge of the matters contained in the report.
(c) Affidavits, depositions or other signed statements.
(d) Any diary, letter to other document, including sworn statements, appearing to the
commission to contain information relating to the charge.
(e) A copy of any document or other secondary evidence of the contents, if the original is
not immediately available.
(2) The commission shall take judicial notice of facts of common knowledge, official
government documents of any nation, and the proceedings, records and findings of
military or other agencies of any of the United Nation.
(3) A commission may require the prosecution and the defense to make a preliminary
offer of proof whereupon the commission may rule in advance on the admissibility of
such evidence.
(4) The official position of the accused shall not absolve him from responsibility nor be
considered in mitigation of punishment. Further action pursuant to an order of the
accused's superior, or of his Government, shall not constitute a defense, but may be
considered in mitigation of punishment if the commission determines that justice so
requires.
(5) All purposed confessions or statements of the accused shall bee admissible in
evidence without any showing that they were voluntarily made. If it is shown that such
confession or statement was procured by mean which the commission believe to have
been of such a character that may have caused the accused to make a false statement the
commission may strike out or disregard any such portion thereof as was so procured.
(e) Trial Procedure. The proceedings of each trial shall be conducted substantially as
follows unless modified by the commission to suit the particular circumstances:
(1) Each charge and specification shall be read or its substance stated in open court.
(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not
guilty."
(3) The prosecution shall make its opening statement."(4) The presiding member may at
this or any other time require the prosecutor to state what evidence he proposes to submit
to the commission and the commission thereupon may rule upon the admissibility of such
evidence.
(4) The witnesses and other evidence for the prosecution shall be heard or presented. At
the close of the case for the prosecution, the commission may, on motion of the defense
for a finding of not guilty, consider and rule whether he evidence before the commission
may defer action on any such motion and permit or require the prosecution to reopen its
case and produce any further available evidence.
(5) The defense may make an opening statement prior to presenting its case. The
presiding member may, at this any other time require the defense to state what evidence it
proposes to submit to the commission where upon the commission may rule upon the
admissibility of such evidence.
(6) The witnesses and other evidence for the defense shall be heard or presented.
Thereafter, the prosecution and defense may introduce such evidence in rebuttal as the
commission may rule as being admissible.
(7) The defense and thereafter the prosecution shall address the commission.
(8) The commission thereafter shall consider the case in closed session and unless
otherwise directed by the convening authority, announce in open court its judgment and
sentence if any. The commission may state the reason on which judgment is based.
( f ) Record of Proceedings. Each commission shall make a separate record of its
proceeding in the trial of each case brought before it. The record shall be prepared by the
prosecutor under the direction of the commission and submitted to the defense counsel.
The commission shall be responsible for its accuracy. Such record, certified by the
presiding member of the commission or his successor, shall be delivered to the convening
authority as soon as possible after the trial.
(g) Sentence. The commission may sentence an accused, upon conviction to death by
hanging or shooting, imprisonment for life or for any less term, fine or such other
punishment as the commission shall determine to be proper.
(h) Approval of Sentence. No. sentence of a military commission shall be carried into
effect until approved by the chief off Staff: Provided, That no sentence of death or life
imprisonment shall be carried into execution until confirmed by the President of the
Philippines. For the purpose of his review the Chief of Staff shall create a Board of
Review to be composed of not more than three officers none of whom shall be on duty
with or assigned to the Judge Advocate General's Office. The Chief of Staff shall have
authority to approve, mitigate remit in whole or in part, commute, suspend, reduce or
otherwise alter the sentence imposed, or (without prejudice to the accused) remand the
case for rehearing before a new military commission; but he shall not have authority to
increase the severity of the sentence. Except as herein otherwise provided the judgment
and sentence of a commission shall final and not subject to review by any other tribunal.
VI. RULE-MAKING POWER
Supplementary Rule and Forms. Each commission shall adopt rules and forms to
govern its procedure, not inconsistent with the provision of this Order, or such rules and
forms as may be prescribed by the convening authority]or by the President of the

Philippines.
VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of
the appropriations for the Army of the Philippines for use by the National War Crimes
Office in the accomplishment of its mission as hereinabove set forth, and shall be
expended in accordance with the recommendation of the Judge Advocate General as
approved by the President. The buildings, fixtures, installations, messing, and billeting
equipment and other property herefore used by then Legal Section, Manila Branch, of the
General Headquarters, Supreme Commander for the Allied Power, which will be turned
over by the United States Army to the Philippines Government through the Foreign
Liquidation Commission and the Surplus Property Commission are hereby specification
reserved for use off the National War Crimes Office.
Executive Order No. 64, dated August 16, 1945, is hereby repealed.
Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen
hundred and forty-seven, and of the Independence of the Philippines, the second.
MANUEL ROXAS
President of the Philippines
By the President:
EMILIO ABELLO
Chief of the Executive Office
EXECUTIVE LEGISLATION
Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of
congressional enactment.
The first question that is trust at our face spearheading a group of other no less important
question, is whether or not the President of the Philippines may exercise the legislative power
expressly vested in Congress by the Constitution. .
The Constitution provides:
The Legislative powers shall be vested in a Congress of the Philippines which shall
consist of a Senate and House of Representatives. (Section 1, Article VI.)
While there is no express provision in the fundamental law prohibiting the exercise of legislative
power by agencies other than Congress, a reading of the whole context of the Constitution would
dispel any doubt as to the constitutional intent that the legislative power is to be exercised
exclusively by Congress, subject only to the veto power of the President of the President of the
Philippines, to the specific provision which allow the president of the Philippines to suspend the
privileges of the writ of habeas corpus and to place any part of the Philippines under martial law,
and to the rule-making power expressly vested by the Constitution in the Supreme Court.
There cannot be any question that the member of the Constitutional Convention were believers in
the tripartite system of government as originally enunciated by Aristotle, further elaborated by
Montequieu and accepted and practiced by modern democracies, especially the United State of
America, whose Constitution, after which ours has been patterned, has allocated the three power
of government legislative, executive, judicial to distinct and separate department of
government.
Because the power vested by our Constitution to the several department of the government are in
the nature of grants, not recognition of pre-existing power, no department of government may
exercise any power or authority not expressly granted by the Constitution or by law by virtue
express authority of the Constitution.
Executive Order No. 68 establishes a National War Crimes Office and the power to establish
government office is essentially legislative.
The order provides that person accused as war criminals shall be tried by military commissions.
Whether such a provision is substantive or adjective, it is clearly legislative in nature. It confers
upon military commissions jurisdiction to try all persons charge with war crimes. The power to
define and allocate jurisdiction for the prosecution of person accused of any crime is exclusively
vested by the Constitution in Congress. .
It provides rules of procedure for the conduct of trial of trial. This provision on procedural
subject constitutes a usurpation of the rule-making power vested by Constitution in the Supreme
Court.
It authorized military commission to adopt additional rule of procedure. If the President of the
Philippines cannot exercise the rule -making power vested by the Constitution in the Supreme
Court, he cannot, with more reason, delegate that power to military commission.
It appropriates the sum of P7000,000 for the expenses of the National War Crimes office
established by the said Executive Order No. 68. This constitutes another usurpation of legislative
power as the power to vote appropriations belongs to Congress.
Executive Order No. 68., is, therefore, null and void, because, though it the President of the
Philippines usurped power expressly vested by the Constitution in Congress and in the Supreme
Court.
Challenged to show the constitutional or legal authority under which the President issued
Executive Order No. 68, respondent could not give any definite answer. They attempted,
however, to suggest that the President of the Philippines issued Executive Order No. 68 under the
emergency power granted to him by Commonwealth Act No. 600, as amended by

Commonwealth Act No. 620, and Commonwealth Act No. 671, both of which are transcribed
below:
COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING
THE PRESIDENT TO PROMULGATE RULES AND REGULATION TO
SAFEGUARD THE INTEGRITY OF THE PHILIPPINES AND TO INSURE
THE TRANQUILITY OF ITS INHABITANTS.
Be it enacted by the National Assembly of the Philippines:
SECTION 1. The existence of war in many parts of the world has created a national
emergency which makes it necessary to invest the President of the Philippines with
extraordinary power in order to safeguard the integrity of the Philippines and to insure the
tranquility of its inhabitants, by suppressing espionage, lawlessness, and all subversive to
the people adequate shelter and clothing and sufficient food supply, and by providing
means for the speedy evacuation of the civilian population the establishment of an air
protective service and the organization of volunteer guard units, and to adopt such other
measures as he may deem necessary for the interest of the public. To carry out this policy
the President is authorized to promulgate rules and regulations which shall have the force
and effect off law until the date of adjournment of the next regulation which shall have
the force and effect of law until the date of adjournment of the next regular session of the
First Congress of the Philippines, unless sooner amended or repealed by the Congress of
Philippines. Such rules and regulation may embrace the following objects: (1) to suppress
espionage and other subversive activities; (2) to require all able-bodied citizens (a) when
not engaged in any lawful occupation, to engage in farming or other productive activities
or (b) to perform such services as may bee necessary in the public interest; (3) to take
over farm lands in order to prevent or shortage of crops and hunger and destitution; (4) to
take over industrial establishment in order to insure adequate production, controlling
wages and profits therein; (5) to prohibit lockouts and strikes whenever necessary to
prevent the unwarranted suspension of work in productive enterprises or in the interest of
national security; (6) to regulate the normal hours of work for wage-earning and salaried
employees in industrial or business undertakings of all kinds; (7) to insure an even
distribution of labor among the productive enterprises; (8) to commandership and other
means of transportation in order to maintain, as much as possible, adequate and continued
transportation facilities; (9) to requisition and take over any public service or enterprise
for use or operation by the Government;(10) to regulate rents and the prices of articles or
commodities of prime necessity, both imported and locally produced or manufactured;
and (11) to prevent, locally or generally, scarcity, monopolization, hoarding injurious
speculations, and private control affecting the supply, distribution and movement of
foods, clothing, fuel, fertilizer, chemical, building, material, implements, machinery, and
equipment required in agriculture and industry, with power to requisition these
commodities subject to the payment of just compensation. (As amended by Com. Act No.
620.)
SEC. 2. For the purpose of administering this Act and carrying out its objective, the
President may designate any officer, without additional compensation, or any department,
bureau, office, or instrumentality of the National Government.
SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of
this Act or of this Act or any of the rules or regulations promulgated by the President
under the authority of section one of this Act shall be punished by imprisonment of not
more than ten years or by a fine of not more than ten thousand pesos, or by both. If such
violation is committed by a firm or corporation, the manager, managing director, or
person charge with the management of the business of such firm, or corporation shall be
criminally responsible therefor.
SEC. 4. The President shall report to the national Assembly within the first ten days from
the date of the opening of its next regular session whatever action has been taken by him
under the authority herein granted.
SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such
amounts as may be necessary from the sum appropriated under section five
Commonwealth Act Numbered four hundred and ninety-eight.
SEC. 6. If any province of this Act shall be declared by any court of competent
jurisdiction to be unconstitutional and void, such declaration shall not invalidate the
remainder of this Act.
SEC. 7. This Act shall take upon its approval.
Approved, August 19, 1940.
COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF
WAR INVOLVING THE PHILIPPINES AND AUTHORIZING THE
PRESIDENT TO PROMULGATE RULE AND REGULATIONS TO MEET
SUCH EMERGENCY.
Be it enacted the National Assembly of the Philippines;
SECTION 1. The existed of war between the United State and other countries of Europe
and Asia, which involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency.
SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the
President is hereby authorized, during the existence of the emergency, to promulgate such
rules and regulation as he may deem necessary to carry out the national policy declared in
section 1 hereof. Accordingly, he is, among other things, empowered (a) to transfer the
seat of the Government or any of its subdivisions, branches, department, offices, agencies
or instrumentalities; (b) to reorganize the Government of the Commonwealth including
the determination of the order of precedence of the heads of the Executive Department;
(c) to create new subdivision, branches, departments, offices, agency or instrumentalities
of government and to abolish any of those already existing; (d) to continue in force laws
and appropriation which would lapse or otherwise became inoperative, and to modify or
suspend the operation or application of those of an administrative character; (e) to
imposed new taxes or to increase, reduce, suspend, or abolish those in existence; (f) to
raise funds through the issuance of bonds or otherwise, and to authorize the expensive of
the proceeds thereof; (g) to authorize the National, provincial, city or municipal
governments to incur in overdrafts for purposes that he may approve; (h) to declare the
suspension of the collection of credits or the payment of debts; and (i) to exercise such
other power as he may deem necessary to enable the Government to fulfill its
responsibilities and to maintain and enforce its authority.
SEC. 3. The President of the Philippines report thereto all the rules and regulation
promulgated by him under the power herein granted.
SEC. 4. This Act shall take effect upon its approval and the rules and regulations.
promulgated hereunder shall be in force and effect until the Congress of the Philippines
shall otherwise provide.
Approved December 16, 1941.
The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947.
Said Acts had elapsed upon the liberation of the Philippines form the Japanese forces or, at the
latest, when the surrender of Japan was signed in Tokyo on September 2, 1945.
When both Acts were enacted by the Second National Assembly, we happened to have taken
direct part in their consideration and passage, not only as one of the members of said legislative
body as chairman of the Committee on Third Reading population Known as the "Little Senate."
We are, therefore in a position to state that said measures were enacted by the second national
Assembly for the purpose of facing the emergency of impending war and of the Pacific War that
finally broke out with the attack of Pearl Harbor on December 7, 1941. We approved said
extraordinary measures, by which under the exceptional circumstances then prevailing legislative
power were delegated to the President of the Philippines, by virtue of the following provisions of
the Constitution:
In time of war or other national emergency, the Congress may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribe to
promulgate rules and regulations to carry out declared national policy. (Article VI,
section 26.)
It has never been the purpose of the National Assembly to extend the delegation beyond the
emergency created by the war as to extend it farther would be violative of the express provision
of the Constitution. We are of the opinion that there is no doubt on this question.; but if there
could still be any the same should be resolved in favor of the presumption that the National
Assembly did not intend to violate the fundamental law.
The absurdity of the contention that the emergency Acts continued in effect even after the
surrender of Japan can not be gainsaid. Only a few months after liberation and even before the
surrender of Japan, or since the middle of 1945, the Congress started to function normally. In the
hypothesis that the contention can prevail, then, since 1945, that is, four years ago, even after the
Commonwealth was already replaced by the Republic of the Philippines with the proclamation
of our Independence, two district, separate and independence legislative organs, Congress and
the President of the Philippines would have been and would continue enacting laws, the
former to enact laws of every nature including those of emergency character, and the latter to
enact laws, in the form of executive orders, under the so-called emergency powers. The situation
would be pregnant with dangers to peace and order to the rights and liberties of the people and to
Philippines democracy.
Should there be any disagreement between Congress and the President of the Philippines, a
possibility that no one can dispute the President of the Philippines may take advantage of he long
recess of Congress (two-thirds of every year ) to repeal and overrule legislative enactments of
Congress, and may set up a veritable system of dictatorship, absolutely repugnant to the letter
and spirit of the Constitution.
Executive Order No. 68 is equally offensive to the Constitution because it violates the
fundamental guarantees of the due process and equal protection of the law. It is especially so,
because it permit the admission of many kinds evidence by which no innocent person can afford
to get acquittal and by which it is impossible to determine whether an accused is guilty or not
beyond all reasonable doubt.
The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation
governing the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in
Chief of the United State Armed Forces in Western Pacific, for the purpose of trying among
other, General Yamashita and Homma. What we said in our concurring and dissenting opinion to
the decision promulgated on December 19, 1945, in the Yamashita case, L-129, and in our
concurring and dissenting opinion to the resolution of January 23, 1946 in disposing the Homma
case, L-244, are perfectly applicable to the offensive rules of evidence in Executive Order No.
68. Said rules of evidence are repugnant to conscience as under them no justice can expected.
For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote
to declare Executive Order No. 68 null and void and to grant petition.

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1.

NORTH SEA CONTINENTAL SHELF CASES

(2) By twelve votes to three,

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire, Judges Lachs, Ruda,

AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.

IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda,

matters, which would be to overstep proper judicial bounds. Consequently, it is equipped to

of disarmament, or others, specifically excluded by States - are not justiciable. He specifically

Organization of American States, and forced it to resort only to principles of customary

3. CASE CONCERNING THE BARCELONA TRACTION, LIGHT AND POWER

March 26, 1949

SHIGENORI KURODA, petitioner,

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and

investigator or intelligence officer, or by any other person whom commission considers

forms as may be prescribed by the convening authority]or by the President of the

emergency power granted to him by Commonwealth Act No. 600, as amended by

COMMONWEALTH ACT NO. 600.

COMMONWEALTH ACT NO. 671

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