10. By a letter dated 18 January 1985 the Agent of the United States referred

to the Court's Judgrnent of 26 Novernber 1984 and inforrned the Court as follows

:

"the United States is constrained toconclude that thejudgment of the Court

was clearly and manifestly erroneous as to both fact and law. The United

States rernains firrnly of the view, for the reasons given in its written and oral

pleadings that the Court is without jurisdiction to entertain the dispute, and

that the Nicaraguan application of 9 April 1984 is inadmissible. Accordingly,

it is my duty to inforrn you that the United States intends not to participate

in any further proceedings in connection with this case, and reserves

its rights in respect of any decision by the Court regarding Nicaragua's

claims."

15. In the course of the written proceedings, the following submissions were

presented on behalf of the Government of Nicaragua :

in the Application

"Nicaragua, reserving the right to supplement or to amend this Application

and subject to the presentation to the Court of the relevant evidence

and legal argument, requests the Court to adjudge and declare as follows :

(a) That the United States, in recruiting, training, arming, equipping,

financing, supplying and otherwise encouraging, supporting, aiding,

and directing military and paramilitary actions in and against Nicaragua,

has violated and is violating its express charter and treaty obligations

to Nicaragua, and in particular, its charter and treaty obligations

under :

- Article 2 (4) of the United Nations Charter ;

- Articles 18 and 20 of the Charter of the Organization of American

States ;

- Article 8 of the Convention on Rights and Duties of States ;

- Article 1, Third, of the Convention concerning the Duties and Rights

of States in the Event of Civil Strife.

(b) That the United States, in breach of its obligation under general and

customary international law, has violated and is violating the sovereignty

of Nicaragua by :

- armed attacks against Nicaragua by air, land and sea ;

- incursions into Nicaraguan territorial waters ;

- aerial trespass into Nicaraguan airspace ;

- efforts by direct and indirect means to coerce and intimidate the

Government of Nicaragua.

(c) That the United States, in breach of its obligation under general and

customary international law, has used and is using force and the threat

of force against Nicaragua.

(d) That the United States, in breach of its obligation under general and

customary international law, has intervened and is intervening in the

Internal affairs of Nicaragua.

(e) That the United States, in breach of its obligation under general and

customary international law, has infringed and is infringing the freedom

of the high seas and interrupting peaceful maritime commerce.

lf) That the United States, in breach of its obligation under general and

customary international law, has killed, wounded and kidnapped and is

killing, wounding and kidnapping citizens of Nicaragua.

(g) That, in view of its breaches of the foregoing legal obligations, the

United States is under a particular duty to cease and desist immediately :

from al1 use of force - whether direct or indirect, overt or covert -

against Nicaragua, and from al1 threats of force against Nicaragua ;

from al1 violations of the sovereignty, territorial integrity or political

independence of Nicaragua, including al1 intervention, direct or indirect,

in the internal affairs of Nicaragua ;

from al1 support of any kind - including the provision of training, arms,

ammunition. finances.. su,~.~ lieasss.i stance. direction or anv other form ,

of support - to any nation, group, organization, movement or individual

engaged or planning to engage in military or pararnilitary actions

in or against Nicaragua ;

from al1 efforts to restrict, block or endanger access to or from

Nicaraguan ports ;

and from al1 killings, woundings and kidnappings of Nicaraguan citizens.

(h) That the United States has an obligation to pay Nicaragua, in its own

right and asparenspatriae for the citizens of Nicaragua, reparations for

damages to person, property and the Nicaraguan economy caused by

the foregoing violations of international law in a sum to be determined

by the Court. Nicaragua reserves the right to introduce to the Court a

precise evaluation of the damages caused by the United States".

27. When a State named as party to proceedings before the Court

decides not to appear in the proceedings, or not to defend its case, the

Court usually expresses regret, because such a decision obviously has a

negative impact on the sound administration of justice (cf. Fisheries Jurisdiction,

I. C.J. Reports 1973, p. 7, para. 12 ; p. 54, para. 13 ; I. C.J. Reports

1974, p. 9, para. 17 ; p. 18 1, para. 18 ; Nuclear Tests, I. C.J. Reports 1974,

p. 257, para. 15 ; p. 461, para. 15 ; Aegean Sea Continental Shelf, I. C.J.

Reports 1978, p. 7, para. 15 ; United States Diplornatic and Consular Staff in

Tehran, I. C.J. Reports 1980, p. 18, para. 33)... Furthermore the Court is bound to

emphasize that the non-participation of a party in the proceedings at any

stage of the case cannot, in any circumstances, affect the validity of its

judgment. Nor does such validity depend upon the acceptance of that

judgment by one party. The fact that a State purports to "reserve its rights" in respect of a future decision of the Court, after the Court has determined

that it has jurisdiction, is clearly of no effect on the validity of that decision.

Under Article 36, paragraph 6, of its Statute, the Court has jurisdiction to

determine any dispute as to its own jurisdiction, and its judgment on that

matter, as on the ments, is final and binding on the parties under Articles 59

and 60 of the Statute (cf. Corfu Channel, Judgment of 15 December 1949,

I.C.J. Reports 1949, p. 248).

28. When Article 53 of the Statute applies, the Court is bound to

"satisfy itself, not only that it has jurisdiction in accordance with Articles

36 and 37, but also that the claim" of the party appearing is well founded in

fact and law... A State which

decides not to appear must accept the consequences of its decision, the first

of which is that the case will continue without its participation ; the State

which has chosen not to appear remains a party to the case, and is bound by

the eventual judgment in accordance with Article 59 of the Statute. There is

however no question of a judgment automatically in favour of the party

appearing, since the Court is required, as mentioned above, to "satisfy

itself" that that party's claim is well founded in fact and law.

29. The use of the term "satisfy itself" in the English text of the Statute

(and in the French text the term "s'assurer") implies that the Court must

attain the same degree of certainty as in any other case that the claim of the

party appearing is sound in law, and, so far as the nature of the case

permits, that the facts on which it is based are supported by convincing

evidence. For the purpose of deciding whether the claim is well founded in

law, the principle jura novit curia signifies that the Court is not solely

dependent on the argument of the parties before it with respect to the

applicable law (cf. "Lotus", P.C.I.J., Series A, No. 10, p. 31), so that the

absence of one party has less impact. As the Court observed in the Fisheries

Jurisdiction cases :

"The Court . . ., as an international judicial organ, is deemed to take

judicial notice of international law, and is therefore required in a case

falling under Article 53 of the Statute, as in any other case, to consider

on its own initiative al1 rules of international law which may be relevant to the settlement of the dispute. It being the duty of the Court

itself to ascertain and apply the relevant law in the given circumstances

of the case, the burden of establishing or proving rules of

international law cannot be imposed upon any of the parties, for the

law lies within the judicial knowledge of the Court." (I.C.J. Reports

1974, p. 9, para. 17 ; p. 181, para. 18.)

30. As to the facts of the case, in principle the Court is not bound to

confine its consideration to the material formally submitted to it by the

parties (cf. Brazilian Loans, P.C.I.J., Series A, No. 20/21, p. 124 ; Nuciear

Tests, I.C.J. Reports 1974, pp. 263-264, paras. 31, 32). Nevertheless, the

Court cannot by its own enquiries entirely make up for the absence of one

of the Parties ; that absence, in a case of this kind involving extensive

questions of fact, must necessarily limit the extent to which the Court is

informed of the facts. It would furthermore be an over-simplification to

conclude that the only detrimental consequence of the absence of a party is

the lack of opportunity to submit argument and evidence in support of its

own case. Proceedings before the Court cal1 for vigilance by all. The absent

party also forfeits the opportunity to counter the factual allegations of its

opponent. It is of course for the party appearing to prove the allegations it

makes, yet as the Court has held :

"While Article 53 thus obliges the Court to consider the submissions

of the Party which appears, it does not compel the Court to

examine their accuracy in al1 their details ; for this rnight in certain

unopposed cases prove impossible in practice." (Corfu Channel, 1. C..'f.

Reports 1949, p. 248.)

31. ...where one party is not appearing "it is

especially incumbent upon the Court to satisfy itself that it is in possession

of all the available facts" (Nuclear Tests, I.C.J. Reports 1974, p. 263,

para. 31 ; p. 468, para. 32).

33. legal dispute – where international law is relevant or controlling

As the Court pointed out

in the Nottebohm case :

"When an Application is filed at a time when the law in force

between the parties entails the compulsoryjurisdiction of the Court. . .

the filing of the Application is merely the condition required to enable

the clause of compulsory jurisdiction to produce its effects in respect

of the claim advanced in the Application. Once this condition has

been satisfied, the Court must deal with the claim ; it has jurisdiction

to deal with al1 its aspects, whether they relate to jurisdiction, to

admissibility or to the merits. An extrinsic fact such as the subsequent lapse of the Declaration [or, as in the present case also, the Treaty

containing a compromissory clause], by reason of the expiry of the

period or by denunciation, cannot deprive the Court of the jurisdiction

already established." (I.C.J. Reports 1953, p. 123.)

38. The present case is the first in which the Court has had occasion to

exercise the power first provided for in the 1972 Rules of Court to declare

that a preliminary objection "does not possess, in the circumstances of the

case, an exclusively preliminary character". It may therefore be appropriate

to take this opportunity to comment briefly on the rationale of this

provision of the Rules, in the light of the problems to which the handling of

preliminary objections has given rise.

39. Under the Rules of Court dating back to 1936 (which on this point

reflected still earlier practice), the Court had the power tojoin an objection

to the merits "whenever the interests of the good administration of justice

require it" (Panevezys-Saldutiskis Railway, P. C. I.J., Series A / B, No. 75, p. 56), and in particular where the Court, if it were to decide on the

objection, "would run the risk of adjudicating on questions which appertain

to the merits of the case or of prejudging their solution" (ibid.).

40. ... In the Panevezys-Saldutiskis Railway case, the

Permanent Court defined a preliminary objection as one

"submitted for the purpose of excluding an examination by the Court

of the merits of the case, and being one upon which the Court can give

a decision without in any way adjudicating upon the merits" (P.C.I.J.,

Series A/B, No. 76, p. 22)... The

final solution adopted in 1972, and maintained in the 1978 Rules, concerning

preliminary objections is the following : the Court is to give its

decision

"by which it shall either uphold the objection, reject it, or declare that

the objection does not possess, in the circumstances of the case, an

exclusively preliminary character. If the Court rejects the objection, or

declares that it does not possess an exclusively preliminary character,

it shall fix time-limits for the further proceedings." (Art. 79,

para. 7.)

41. While the variety of issues raised by preliminary objections cannot

possibly be foreseen, practice has shown that there are certain kinds of

preliminary objections which can be disposed of by the Court at an early

stage without examination of the merits. Above all, it is clear that a

question of jurisdiction is one which requires decision at the preliminary stage of the proceedings. The new rule enumerates the objections contemplated

as follows :

"Any objection by the respondent to thejurisdiction of the Court or

to the admissibility of the application, or other objection the decision

upon which is requested before any further proceedings on the

merits . . ." (Art. 79, para. 1.)

It thus presents one clear advantage : that it qualifies certain objections as

preliminary, making it quite clear that when they are exclusively of that

character they will have to be decided upon immediately, but if they are

not. especially when the character of the objections is not exclusively

preliminary because they contain both preliminary aspects and other

aspects relating to the merits. they will have to be dealt with at the stage of

the merits. This approach also tends to discourage the unnecessary prolongation

of proceedings at the jurisdictional stage.

42. The 1984 Judgment included pronouncements on certain aspects of that

reservation. but the Court then took the view that it was neither necessary

nor possible, at the jurisdictional stage of the proceedings, for it to take a

position on al1 the problems posed by the reservation. (43.) It regarded this as not necessary because, in its Application, Nicaragua had not confined its claims to breaches of multilateral treaties but

had also invoked a number of principles of "general and customary international

law", as well as the bilateral Treaty of Friendship, Commerce and

Navigation of 1956.

... "it is only

when the general lines of the judgment to be given become clear", the

Court said, "that the States 'affected' could be identified"...

45. ... But it is clear

that the fact that the United States, having refused to participate at the

merits stage, did not have an opportunity to press again at that stage the

argument which, in the jurisdictional phase, it founded on its multilateral

treaty reservation cannot be tantamount to a waiver of the argument

drawn from the reservation.

56. ... It should however be recalled that, as will be explained further below, the

effect of the reservation in question is confined to barring the applicability

of the United Nations Charter and Organization of American States

Charter 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.

58. A further aspect of this case is that the conflict to which it relates has

continued and is continuing. It has therefore been necessary for the Court

to decide, for the purpose of its definition of the factual situation, what

period of time, beginning from the genesis of the dispute, should be taken

into consideration. The Court holds that general principles as to the

judicial process require that the facts on which its Judgment is based

should be those occurring up to the close of the oral proceedings on the

merits of the case. While the Court is of course very well aware, from

reports in the international press, of the developments in Central America

since that date, it cannot, as explained below (paragraphs 62 and 63), treat

such reports as evidence, nor has it had the benefit of the comments or

argument of either of the Parties on such reports. As the Court recalled

in the Nuclear Tests cases, where facts, apparently of such a nature as

materially to affect its decision, came to its attention after the close of

the hearings :

"It would no doubt have been possible for the Court, had it considered

that the interests of justice so required, to have afforded the

Parties the opportunity, e.g., by reopening the oral proceedings, of

addressing to the Court comments on the statements made since the

close of those proceedings." (I.C.J. Reports 1974, p. 264, para. 33 ;

p. 468, para. 34.)

Neither Party has requested such action by the Court ; and since the

reports to which reference has been made do not suggest any profound

modification of the situation of which the Court is seised, but rather its

intensification in certain respects, the Court has seen no need to reopen the

hearings.

62. At al1 events, in the present case the Court has before it documentary

material of various kjnds from various sources. A large number of

documents has been supplied in the form of reports in press articles, and

some also in the form of extracts from books. Whether these were produced

by the applicant state, or by the absent Party before it ceased to

appear in the proceedings, the Court has been careful to treat them with

great caution ; even if they seem to meet high standards of objectivity, the

Court regards them not as evidence capable of proving facts, but as

material which can nevertheless contribute, in some circumstances, to

corroborating the existence of a fact, Le., as illustrative material additional

to other sources of evidence.

63. However, although it is perfectly proper that press information

should not be treated in itself as evidence for judicial purposes, public

knowledge of a fact may nevertheless be established by means of these

sources of information, and the Court can attach a certain amount of

weight to such public knowledge. In the case of United States Diplontaticand Consular Staff in Tehran, the Court referred to facts which "are, for the

most part, matters of public knowledge which have received extensive

coverage in the world press and in radio and television broadcasts from

Iran and other countries" (I.C.J. Reports 1980, p. 9, para. 12). On the basis

of information, including press and broadcast material, which was "wholly

consistent and concordant as to the main facts and circumstances of the

case", the Court was able to declare that it was satisfied that the allegations

of fact were well-founded (ibid., p. 10, para. 13). The Court has however to

show particular caution in this area. Widespread reports of a fact may

prove on closer examination to derive from a single source, and such

reports. however numerous, will in such case have no greater value as

evidence than the original source.

64. The material before the Court also includes statements by representatives

of States, sometimes at the highest political level. Some of these

statements were made before officia1 organs of the State or of an international

or regional organization, and appear in the official records of

those bodies. Others, made during press conferences or interviews, were

reported by the local or international press. The Court takes the view that

statements of this kind, emanating from high-ranking official political

figures. sometimes indeed of the highest rank, are of particular probative

value when they acknowledge facts or conduct unfavourable to the State

represented by the person who made them. They may then be construed as

a form of admission.

65. ... The Court must

take account of the manner in which the statements were made public ;

evidently, it cannot treat them as having the same value irrespective of

whether the text is to be found in an officiai national or international

publication, or in a book or newspaper. It must also take note whether the

text of the officia1 statement in question appeared in the language used by

the author or on the basis of a translation... It may also be relevant whether or not such a statement was

brought to the Court's knowledge by officia1 communications filed in

conformity with the relevant requirements of the Statute and Rules of

Court.