Compendium PDF

MOOT COURT PRESENTATION, 2020
COMPENDIUM
SUPPLEMENTING THE MEMORIAL SUBMISSION ON BEHALF OF THE
PETITIONER
NAME ROLL NO
ARINDAM BAISHYA 188482
NISHANT 188400
DEBASISH DUWARIA 188169

1
Draft articles on
Responsibility of States for Internationally Wrongful Acts,
with commentaries
2001
Text adopted by the International Law Commission at its fifty-third session, in

2001, and submitted to the General Assembly as a part of the Commission’s report
covering the work of that session (A/56/10). The report, which also contains
commentaries on the draft articles, appears in the Yearbook of the International Law
Commission, 2001, vol. II, Part Two, as corrected.
Copyright © United Nations

2008
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State responsibility 47
only to those cases of attribution covered by articles 4, 5 their conduct involves “governmental activity”. Most
and 6. Problems of unauthorized conduct by other persons, commonly, cases of this kind will arise where State organs
groups or entities give rise to distinct problems, which are supplement their own action by recruiting or instigating
dealt with separately under articles 8, 9 and 10. private persons or groups who act as “auxiliaries” while
remaining outside the official structure of the State. These
(10) As a rule of attribution, article 7 is not concerned include, for example, individuals or groups of private indi-
with the question whether the conduct amounted to a viduals who, though not specifically commissioned by the
breach of an international obligation. The fact that instruc- State and not forming part of its police or armed forces,
tions given to an organ or entity were ignored, or that its are employed as auxiliaries or are sent as “volunteers” to
actions were ultra vires, may be relevant in determining neighbouring countries, or who are instructed to carry out
whether or not the obligation has been breached, but that particular missions abroad.
is a separate issue.151 Equally, article 7 is not concerned
with the admissibility of claims arising from internation- (3) More complex issues arise in determining whether
ally wrongful acts committed by organs or agents acting conduct was carried out “under the direction or control”
ultra vires or contrary to their instructions. Where there of a State. Such conduct will be attributable to the State
has been an unauthorized or invalid act under local law only if it directed or controlled the specific operation and
and as a result a local remedy is available, this will have to the conduct complained of was an integral part of that op-
be resorted to, in accordance with the principle of exhaus- eration. The principle does not extend to conduct which
tion of local remedies, before bringing an international was only incidentally or peripherally associated with an
claim.152 operation and which escaped from the State’s direction or
control.
Article 8. Conduct directed or controlled by a State
(4) The degree of control which must be exercised by
The conduct of a person or group of persons shall the State in order for the conduct to be attributable to
be considered an act of a State under international law it was a key issue in the Military and Paramilitary Ac-
if the person or group of persons is in fact acting on tivities in and against Nicaragua case. The question was
the instructions of, or under the direction or control whether the conduct of the contras was attributable to the
of, that State in carrying out the conduct. United States so as to hold the latter generally responsible
for breaches of international humanitarian law commit-
ted by the contras. This was analysed by ICJ in terms of
Commentary the notion of “control”. On the one hand, it held that the
United States was responsible for the “planning, direction
(1) As a general principle, the conduct of private per- and support” given by the United States to Nicaraguan
sons or entities is not attributable to the State under in- operatives.155 But it rejected the broader claim of Nica-
ternational law. Circumstances may arise, however, where ragua that all the conduct of the contras was attributable
such conduct is nevertheless attributable to the State be- to the United States by reason of its control over them. It
cause there exists a specific factual relationship between concluded that:
the person or entity engaging in the conduct and the State.
Article 8 deals with two such circumstances. The first in- [D]espite the heavy subsidies and other support provided to them by
volves private persons acting on the instructions of the the United States, there is no clear evidence of the United States having
State in carrying out the wrongful conduct. The second actually exercised such a degree of control in all fields as to justify
treating the contras as acting on its behalf.
deals with a more general situation where private persons
act under the State’s direction or control.153 Bearing in …
mind the important role played by the principle of effec-
tiveness in international law, it is necessary to take into All the forms of United States participation mentioned above, and even
account in both cases the existence of a real link between the general control by the respondent State over a force with a high
the person or group performing the act and the State ma- degree of dependency on it, would not in themselves mean, without
further evidence, that the United States directed or enforced the per-
chinery. petration of the acts contrary to human rights and humanitarian law
alleged by the applicant State. Such acts could well be committed by
(2) The attribution to the State of conduct in fact au- members of the contras without the control of the United States. For
this conduct to give rise to legal responsibility of the United States, it
thorized by it is widely accepted in international jurispru- would in principle have to be proved that that State had effective control
dence.154 In such cases it does not matter that the person of the military or paramilitary operations in the course of which the
or persons involved are private individuals nor whether alleged violations were committed.156
151 SeeELSI (footnote 85 above), especially at pp. 52, 62 and 74. Thus while the United States was held responsible for its
152 Seefurther article 44, subparagraph (b), and commentary. own support for the contras, only in certain individual
153 Separate issues are raised where one State engages in interna-
instances were the acts of the contras themselves held
tionally wrongful conduct at the direction or under the control of attributable to it, based upon actual participation of and
another State: see article 17 and commentary, and especially para-
graph (7) for the meaning of the words “direction” and “control” in
directions given by that State. The Court confirmed that
various languages. a general situation of dependence and support would be
154 See, e.g., the Zafiro case, UNRIAA, vol. VI (Sales No. 1955.
155 Military and Paramilitary Activities in and against Nicaragua
V.3), p. 160 (1925); the Stephens case (footnote 147 above), p. 267;
and Lehigh Valley Railroad Company and Others (U.S.A.) v. Germa- (see footnote 36 above), p. 51, para. 86.
ny (Sabotage cases): “Black Tom” and “Kingsland” incidents, ibid., 156 Ibid., pp. 62 and 64–65, paras. 109 and 115. See also the concur-
vol. VIII (Sales No. 58.V.2), p. 84 (1930) and p. 458 (1939). ring opinion of Judge Ago, ibid., p. 189, para. 17.
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48 Report of the International Law Commission on the work of its fifty-third session
insufficient to justify attribution of the conduct to the corporate entities, although owned by and in that sense
State. subject to the control of the State, are considered to be
separate, prima facie their conduct in carrying out their
(5) The Appeals Chamber of the International Tribunal activities is not attributable to the State unless they are
for the Former Yugoslavia has also addressed these issues. exercising elements of governmental authority within
In the Tadić, case, the Chamber stressed that: the meaning of article 5. This was the position taken, for
example, in relation to the de facto seizure of property by
The requirement of international law for the attribution to States of acts a State-owned oil company, in a case where there was no
performed by private individuals is that the State exercises control over
the individuals. The degree of control may, however, vary according
proof that the State used its ownership interest as a vehicle
to the factual circumstances of each case. The Appeals Chamber fails for directing the company to seize the property.163 On the
to see why in each and every circumstance international law should other hand, where there was evidence that the corporation
require a high threshold for the test of control.157 was exercising public powers,164 or that the State was us-
ing its ownership interest in or control of a corporation
The Appeals Chamber held that the requisite degree of specifically in order to achieve a particular result,165 the
control by the Yugoslavian “authorities over these armed conduct in question has been attributed to the State.166
forces required by international law for considering the
armed conflict to be international was overall control
going beyond the mere financing and equipping of such (7) It is clear then that a State may, either by specif-
forces and involving also participation in the planning ic directions or by exercising control over a group, in
and supervision of military operations”.158 In the course effect assume responsibility for their conduct. Each case
of their reasoning, the majority considered it necessary to will depend on its own facts, in particular those concern-
disapprove the ICJ approach in the Military and Paramili- ing the relationship between the instructions given or the
tary Activities in and against Nicaragua case. But the legal direction or control exercised and the specific conduct
issues and the factual situation in the Tadić case were dif- complained of. In the text of article 8, the three terms “in-
ferent from those facing the Court in that case. The tribu- structions”, “direction” and “control” are disjunctive; it is
nal’s mandate is directed to issues of individual criminal sufficient to establish any one of them. At the same time
responsibility, not State responsibility, and the question in it is made clear that the instructions, direction or control
that case concerned not responsibility but the applicable must relate to the conduct which is said to have amounted
rules of international humanitarian law.159 In any event it to an internationally wrongful act.
is a matter for appreciation in each case whether particu-
lar conduct was or was not carried out under the control (8) Where a State has authorized an act, or has exercised
of a State, to such an extent that the conduct controlled direction or control over it, questions can arise as to the
should be attributed to it.160 State’s responsibility for actions going beyond the scope
of the authorization. For example, questions might arise
if the agent, while carrying out lawful instructions or
(6) Questions arise with respect to the conduct of com- directions, engages in some activity which contravenes
panies or enterprises which are State-owned and control- both the instructions or directions given and the inter-
led. If such corporations act inconsistently with the international obligations of the instructing State. Such cases
national obligations of the State concerned the question can be resolved by asking whether the unlawful or unau-
arises whether such conduct is attributable to the State. In thorized conduct was really incidental to the mission or
discussing this issue it is necessary to recall that interna- clearly went beyond it. In general a State, in giving lawful
tional law acknowledges the general separateness of cor- instructions to persons who are not its organs, does not
porate entities at the national level, except in those cases assume the risk that the instructions will be carried out in
where the “corporate veil” is a mere device or a vehicle an internationally unlawful way. On the other hand, where
for fraud or evasion.161 The fact that the State initially es- persons or groups have committed acts under the effective
tablishes a corporate entity, whether by a special law or control of a State, the condition for attribution will still be
otherwise, is not a sufficient basis for the attribution to met even if particular instructions may have been ignored.
the State of the subsequent conduct of that entity.162 Since
157 Prosecutor
vol. 5, p. 361 (1984); Otis Elevator Company v. The Islamic Republic
v. Duško Tadić, International Tribunal for the Former of Iran, ibid., vol. 14, p. 283 (1987); and Eastman Kodak Company v.
Yugoslavia, Case IT-94-1-A (1999), ILM, vol. 38, No. 6 (November The Government of Iran, ibid., vol. 17, p. 153 (1987).
1999), p. 1518, at p. 1541, para. 117. For the judgment of the Trial 163 SEDCO, Inc. v. National Iranian Oil Company, ibid., vol. 15,
Chamber (Case IT-94-1-T (1997)), see ILR, vol. 112, p. 1. p. 23 (1987). See also International Technical Products Corporation
158 ILM, vol. 38, No. 6 (November 1999), p. 1546, para. 145.
v. The Government of the Islamic Republic of Iran, ibid., vol. 9, p. 206
159 See the explanation given by Judge Shahabuddeen, ibid., (1985); and Flexi-Van Leasing, Inc. v. The Government of the Islamic
pp. 1614–1615. Republic of Iran, ibid., vol. 12, p. 335, at p. 349 (1986).
160 The problem of the degree of State control necessary for the 164 Phillips Petroleum Company Iran v. The Islamic Republic of Iran,
purposes of attribution of conduct to the State has also been dealt with, ibid., vol. 21, p. 79 (1989); and Petrolane (see footnote 149 above).
for example, by the Iran-United States Claims Tribunal and the Euro- 165 Foremost Tehran, Inc. v. The Government of the Islamic Repub-
pean Court of Human Rights: Yeager (see footnote 101 above), p. 103. lic of Iran, Iran-U.S. ibid., vol. 10, p. 228 (1986); and American Bell
See also Starrett Housing Corporation v. Government of the Islamic International Inc. v. The Islamic Republic of Iran, ibid., vol. 12, p. 170
Republic of Iran, Iran-U.S. C.T.R., vol. 4, p. 122, at p. 143 (1983); (1986).
Loizidou v. Turkey, Merits, Eur. Court H.R., Reports, 1996–VI, p. 2216, 166 See Hertzberg et al. v. Finland (Official Records of the Gen-
at pp. 2235–2236, para. 56, also p. 2234, para. 52; and ibid., Prelimi- eral Assembly, Thirty-seventh Session, Supplement No. 40 (A/37/40),
nary Objections, Eur. Court H.R., Series A, No. 310, p. 23, para. 62 annex XIV, communication No. R.14/61, p. 161, at p. 164, para. 9.1)
(1995). (1982). See also X v. Ireland, application No. 4125/69, Yearbook of the
161 Barcelona Traction (see footnote 25 above), p. 39, paras. 56–58.
European Convention on Human Rights, 1971, vol. 14 (1973), p. 199;
162 For example, the Workers’ Councils considered in Schering and Young, James and Webster v. the United Kingdom, Eur. Court H.R.,
Corporation v. The Islamic Republic of Iran, Iran-U.S. C.T.R., Series A, No. 44 (1981).
4
State responsibility 49
The conduct will have been committed under the control at least exercised elements of governmental authority in the absence of
of the State and it will be attributable to the State in ac- official authorities, in operations of which the new Government must
have had knowledge and to which it did not specifically object.168
cordance with article 8.
(3) Article 9 establishes three conditions which must be
(9) Article 8 uses the words “person or group of per- met in order for conduct to be attributable to the State:
sons”, reflecting the fact that conduct covered by the arti- first, the conduct must effectively relate to the exercise of
cle may be that of a group lacking separate legal personal- elements of the governmental authority, secondly, the con-
ity but acting on a de facto basis. Thus, while a State may duct must have been carried out in the absence or default
authorize conduct by a legal entity such as a corporation, of the official authorities, and thirdly, the circumstances
it may also deal with aggregates of individuals or groups must have been such as to call for the exercise of those
that do not have legal personality but are nonetheless act- elements of authority.
ing as a collective.
(4) As regards the first condition, the person or group
acting must be performing governmental functions, though
Article 9. Conduct carried out in the absence they are doing so on their own initiative. In this respect,
or default of the official authorities the nature of the activity performed is given more weight
than the existence of a formal link between the actors and
the organization of the State. It must be stressed that the
The conduct of a person or group of persons shall private persons covered by article 9 are not equivalent to
be considered an act of a State under international law a general de facto Government. The cases envisaged by
if the person or group of persons is in fact exercising article 9 presuppose the existence of a Government in of-
elements of the governmental authority in the absence fice and of State machinery whose place is taken by ir-
or default of the official authorities and in circumstanc- regulars or whose action is supplemented in certain cases.
es such as to call for the exercise of those elements of This may happen on part of the territory of a State which
authority. is for the time being out of control, or in other specific
circumstances. A general de facto Government, on the
other hand, is itself an apparatus of the State, replacing
that which existed previously. The conduct of the organs
Commentary of such a Government is covered by article 4 rather than
article 9.169
(1) Article 9 deals with the exceptional case of conduct
in the exercise of elements of the governmental authority (5) In respect of the second condition, the phrase “in the
by a person or group of persons acting in the absence of the absence or default of ” is intended to cover both the situ-
official authorities and without any actual authority to do ation of a total collapse of the State apparatus as well as
so. The exceptional nature of the circumstances envisaged cases where the official authorities are not exercising their
in the article is indicated by the phrase “in circumstances functions in some specific respect, for instance, in the case
such as to call for”. Such cases occur only rarely, such as of a partial collapse of the State or its loss of control over a
during revolution, armed conflict or foreign occupation, certain locality. The phrase “absence or default” seeks to
where the regular authorities dissolve, are disintegrating, capture both situations.
have been suppressed or are for the time being inopera-
tive. They may also cover cases where lawful authority is (6) The third condition for attribution under article 9
being gradually restored, e.g. after foreign occupation. requires that the circumstances must have been such as
to call for the exercise of elements of the governmental
(2) The principle underlying article 9 owes something to authority by private persons. The term “call for” conveys
the old idea of the levée en masse, the self-defence of the the idea that some exercise of governmental functions was
citizenry in the absence of regular forces:167 in effect it is called for, though not necessarily the conduct in question.
a form of agency of necessity. Instances continue to occur In other words, the circumstances surrounding the exer-
from time to time in the field of State responsibility. Thus, cise of elements of the governmental authority by private
persons must have justified the attempt to exercise police
the position of the Revolutionary Guards or “Komitehs”
or other functions in the absence of any constituted au-
immediately after the revolution in the Islamic Republic
thority. There is thus a normative element in the form of
of Iran was treated by the Iran-United States Claims Tri-
agency entailed by article 9, and this distinguishes these
bunal as covered by the principle expressed in article 9. situations from the normal principle that conduct of pri-
Yeager concerned, inter alia, the action of performing im- vate parties, including insurrectionary forces, is not at-
migration, customs and similar functions at Tehran airport tributable to the State.170
in the immediate aftermath of the revolution. The tribunal
held the conduct attributable to the Islamic Republic of 168 Yeager (see footnote 101 above), p. 104, para. 43.
Iran, on the basis that, if it was not actually authorized by 169 See, e.g., the award of 18 October 1923 by Arbitrator Taft in the
the Government, then the Guards: Tinoco case (footnote 87 above), pp. 381–382. On the responsibility
of the State for the conduct of de facto governments, see also J. A.
167 This principle is recognized as legitimate by article 2 of the Regu- Frowein, Das de facto-Regime im Völkerrecht (Cologne, Heymanns,
lations respecting the Laws and Customs of War on Land (annexed to 1968), pp. 70–71. Conduct of a government in exile might be covered
the Hague Conventions II of 1899 and IV of 1907 respecting the Laws by article 9, depending on the circumstances.
and Customs of War on Land); and by article 4, paragraph A (6), of the 170 See, e.g., the Sambiaggio case, UNRIAA, vol. X (Sales
Geneva Convention relative to the Treatment of Prisoners of War of No. 60.V.4), p. 499, at p. 512 (1904); see also article 10 and
12 August 1949. commentary.
5
INTERNATIONAL COURT O F JUSTICE
REPORTS OF JUDGMENTS.
ADVISORY OPINIONS AND ORDERS
CASE CONCERNING MILITARY AND

PARAMILITARY ACTIVITIES IN AND
AGAINST NICARAGUA
(NICARAGUA v. UNITED STATES OF AMERICA)
M ERITS
JUDGMENT OF 27 JUNE 1986
COUR INTERNATIONALE D E JUSTICE
RECUEIL DES ARRÊTS.

AVIS CONSULTATIFS ET ORDONNANCES
AFFAIRE DES ACTIVITÉS MILITAIRES

ET PARAMILITAIRES AU NICARAGUA
ET CONTRE CELUI-CI
(NICARAGUA c. ÉTATS-UNIS D'AMÉRIQUE)
FOND
ARRÊT DC' 27 JUIN 1986

6
INTERNATIONAL COURT OF JUSTICE

1986 Y EAR 1986
27 June
General List
No. 70 27 June 1986

PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA
MERITS
Failure of Respondent to appear - Statute of the Court, Article 53 - Equality of

the parties.
Jurisdiction of the Court - Effect of application of multilateral treaty reservation
to United States declaration of acceptance ofjurisdiction under Statute, Article 36,
paragraph 2 - Third State "affected" by decision of the Court on dispute arising
under a multilateral treaty - Character of objection to jurisdiction not exclusively
preliminary - Rules of Court, Article 79.
Jwticiability of the dispute - "Legal dispute" (Statute, Article 36 paragraph 2).
Establishment offacts - Relevantperiod - Powers of the Court - Press informa-

tion and matters of public knowledge - Statements by representatives of States -
Evidence of witnesses - Implicit admissions - Material not presented in accordance
with Rules of Court.
Acts imputable to respondent Srate - Mining ofports - Attacks on oil installa-
tions and other objectives - Overflights - Support ofarmed bands opposed to Gov-
ernment of applicant State - Encouragement of conduct contrary to principles of
humanitarian law - Economic pressure - Circumstances precluding international
responsibility - Possiblejustification of imputed acts - Conduct of Applicant during
relevant period.
Applicable law - Customary international law - Opinio juris and Statepractice
- Significance of concordant views of Parties - Relationship hetween customary
international law and treaty law - United Nations Charter - Significunce of Reso-
lutions of United Nations General Assembly and Organization of American States
General Assembly.
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Principle prohibiting recourse to the threat or use of force in international rela-

tions - Inherent right of self-defence - Conditions for exercise - Individual and
collectiveseif-defence - Response to armed attack - Declarn tion of having been the
object of armed attack and request for measures in the exercise of collective self-
defence.
Principle of non-intewention - Content of theprinciple - Opinio juris -+State
practice - Question of collective counter-measures in response to conduct not
&ounting toarmed atÏack.
State sovereignty - Territory - Airspace - Interna1 and territorial waters -
Right of access of foreign vessels.
Principles of humanitarian law - 1949 Geneva Conventions - Minimum rules
applicable - Duty of States not to encourage disrespect for humanitarian law -
Notification of existence and location of mines.
Respect for human rights - Right of States to choose political system, ideology
and alliances.
1956 Treaty of Frienhhip, Commerceand Navigation - Jurisdiction of the Court -
Obligation under customary international law not to commit acts calculated to defeat
object andpurpose of a treaty - Review of relevant treaty provisions.
Claim for reparation.

Peaceful settlement of disputes.
JUDGMENT
Present :President NAGENDRA SINGH; Vice-President DE LACHARRIÈRE ;

Judges LACHS,RUDA,ELIAS,ODA,AGO, SETTE-CAMARA, SCHWEBEL,
Sir Robert JENNINGS, MBAYE,BEDJAOUI,NI, EVENSEN; Judge ad hoc
COLLIARD ; Registrar TORRESBERNARDEZ.
In the case concerning military and paramilitary activities in and against

Nicaragua,
between
the Republic of Nicaragua,
represented by
H.E. Mr. Carlos Argüello Gomez, Ambassador,
as Agent and Counsel,
Mr. Ian Brownlie, Q.C., F.B.A., Chichele Professor of Public International
Law in the University of Oxford ; Fellow of Ail Souls College, Oxford,
Hon. Abram Chayes, Felix Frankfurter Professor of Law, Harvard Law

School ; Fellow, American Academy of Arts and Sciences,
Mr. Alain Pellet, Professor at the University of Paris-Nord and the Institut
d'études politiques de Paris,
8
operations. Helicopters with Nicaraguan crews are reported to have taken

part in certain operations of the "UCLAs" (see paragraph 86 above), but
there is nothing to show whether these belonged to the coniras or were lent
by United States agencies.
102. It appears to be recognized by Nicaragua that, with the exception

of some of the operations listed in paragraph 81 above, operations on
Nicaraguan territory were carried out by the contras alone, al1 United
States trainers or advisers remaining on the other side of the frontier, or in
international waters. It is however claimed by Nicaragua that the United
States Government has devised the strategy and directed the tactics of the
contra force, and provided direct combat support for its military opera-
tions.
103. In support of the claim that the United States devised the strategy
and directed the tactics of the contras, counsel for Nicaragua referred to the
successive stages of the United States legislative authorization for funding
the contras (outlined in paragraphs 95 to 97 above), and observed that
every offensive by the contras was preceded by a new infusion of funds
from the United States. From this, it is argued, the conclusion follows that
the timing of each of those offensives was deterrnined by the United States.
In the sense that an offensive could not be launched until the funds were
available, that may well be so ; but, in the Court's view, it does not follow
that each provision of funds by the United States was made in order to set
in motion a particular offensive, and that that offensive was planned by the
United States.
104. The evidence in support of the assertion that the United States
devised the strategy and directed the tactics of the contras appears to the
Court to be as follows. There is considerable matenal in press reports of
statements by FDN officials indicating participation of CIA advisers in
planning and the discussion of strategy or tactics, confirmed by the affi-
davit of Mr. Chamorro. Mr. Chamorro attributes virtually a power of
command to the CIAoperatives : he refers to them as having "ordered" or
"instructed" the FDN to take various action. The specific instances of
influence of United States agents on strategy or tactics which he gives are
as follows : the CIA, he says, was at the end of 1982 "urging" the FDN to
launch an offensive designed to take and hold Nicaraguan territory. After
the failure of that offensive, the CIA told the FDN to move its men back
into Nicaragua and keep fighting. The CIA in 1983 gave a tactical directive
not to destroy farms and crops, and in 1984 gave a directive to the opposite
effect. In 1983, the CIA again indicated that they wanted the FDN to
launch an offensive to seize and hold Nicaraguan territory. In this respect,
attention should also be drawn to the statement of Mr. Chamorro (para-
graph 101 above) that the CIA supplied the FDN with intelligence, par-
ticularly as to Nicaraguan troop movements, and small aircraft suitable for
reconnaissance and a certain amount of supply-dropping. Emphasis has
been placed, by Mr. Chamorro, by Commander Carrion, and by counsel
9
for Nicaragua, on the impact on contra tactics of the availability of intel-

ligence assistance and, still more important, supply aircraft.
105. It has been contended by Nicaragua that in 1983 a "new strategy"

for contra operations in and against Nicaragua was adopted at the highest
level of the United States Government. From the evidence offered in
support of this, it appears to the Court however that there was, around this
time, a change in contra strategy, and a new policy by the United States
administration of more overt support for the contras, culrninating in the
express legislative authorization in the Department of Defense Appro-
priations Act, 1984, section 775, and the Intelligence Authorization Act for
Fiscal Year 1984, section 108. The new contra strategy was said to be to
attack "economic targets like electrical plants and storage facilities" and
fighting in the cities.
106. In the light of the evidence and material available to it, the Court is
not satisfied that al1 the operations launched by the contra force, at every
stage of the conflict, reflected strategy and tactics wholly devised by the
United States. However, it is in the Court's view established that the
support of the United States authorities for the activities of the contras
took various forms over the years, such as logistic support, the supply of
information on the location and movements of the Sandinista troops, the
use of sophisticated methods of communication, the deployment of field
broadcasting networks, radar coverage, etc. The Court finds it clear that a
number of rnilitary and paramilitary operations by this force were decided
and planned, if not actually by United States advisers, then at least in close
collaboration with them, and on the basis of the intelligence and logistic
support which the United States was able to offer, particularly the supply
aircraft provided to the contras by the United States.
107. To sum up, despite the secrecy which surrounded it, at least ini-
tially, the financial support given by the Government of the United States
to the military and paramilitary activities of the contras in Nicaragua is a
fully established fact. The legislative and executive bodies of the respon-
dent State have moreover, subsequent to the controversy which has been
sparked off in the United States, openly admitted the nature, volume and
frequency of this support. Indeed, they clearly take responsibility for it,
this government aid having now become the major element of United
States foreign policy in the region. As to the ways in which such financial
support has been translated into practical assistance, the Court has been
able to reach a general finding.
108. Despite the large quantity of documentary evidence and testimony
which it has examined, the Court has not been able to satisfy itself that the
respondent State "created" the contra force in Nicaragua. It seems certain
10
62 MILITARY AND PARAMILlTARY ACTIVITIES (JUDGMENT)
that members of the former Somoza National Guard, together with civilian
opponents to the Sandinista régime, withdrew from Nicaragua soon after
that régime was installed in Managua, and sought to continue their strug-
gle against it, even if in a disorganized way and with limited and ineffectual
resources, before the Respondent took advantage of the existence of these
opponents and incorporated this fact into its policies vis-à-vis the régime of
the Applicant. Nor does the evidence warrant a finding that the United
States gave "direct and critical combat support", at least if that form of
words is taken to mean that this support was tantamount to direct inter-
vention by the United States combat forces, or that al1 contra operations
reflected strategy and tactics wholly devised by the United States. On the
other hand, the Court holds it established that the United States autho-
rities largely financed, trained, equipped, armed and organized the
FDN.
109. What the Court has to determine at this point is whether or not the
relationship of the contras to the United States Government was so much
one of dependence on the one side and control on the other that it would be
right to equate the contras, for legal purposes, with an organ of the United
States Government, or as acting on behalf of that Govemment. Here i t is
relevant to note that in May 1983 the assessment of the Intelligence
Committee, in the Report referred to in paragraph 95 above, was that the
contras "constitute[d] an independent force" and that the "only element of
control that could be exercised by the United States" was "cessation of
aid". Paradoxically this assessment serves to underline, a contrario, the
potential for control inherent in the degree of the contras'dependence on
aid. Yet despite the heavy subsidies and other support provided to them by
the United States, there is no clear evidence of the United States having
actually exercised such a degree of control in al1 fields as tojustify treating
the contras as acting on its behalf.
110. So far as the potential control constituted by the possibility of

cessation of United States rnilitary aid is concerned, it may be noted that
after 1 October 1984 such aid was no longer authorized, though the sharing
of intelligence, and the provision of "humanitarian assistance" as defined
in the above-cited legislation (paragraph 97) may continue. Yet, according
to Nicaragua's own case, and according to press reports, contra activity has
continued. In sum, the evidence available to the Court indicates that the
various forms of assistance provided to the contras by the United States
have been crucial to the pursuit of their activities, but is insufficient to
demonstrate their complete dependence on United States aid. On the other
hand. it indicates that in the initial years of United States assistance the
contra force was so dependent. However, whether the United States Gov-
ernment at any stage devised the strategy and directed the tactics of the
contras depends on the extent to which the United States made use of the
potential for control inherent in that dependence. The Court already
indicated that it has insufficient evidence to reach a finding on this point. It
is afortiori unable to determine that the contra force may be equated for
11
63 MILITARY AND PARAMILITARY ACTIVITIES (JUDGMENT)
legal purposes with the forces of the United States. This conclusion,
however, does not of course suffice to resolve the entire question of the
responsibility incurred by the United States through its assistance to the
contras.
1 1 1. In the view of the Court it is established that the contra force has, at
least at one period. been so dependent on the United States that it could
not conduct its crucial or rnost significant military and paramilitary activ-
ities without the multi-faceted support of the United States. This finding is
fundarnental in the present case. Nevertheless, adequate direct proof that
al1 or the great rnajority of contra activities during that period received this
support has not been, and indeed probably could not be, advanced in every
respect. It will suffice the Court to stress that a degree of control by the
United States Government, as described above. is inherent in the position
in which the contra force finds itself in relation to that Government.
1 12. To show the existence of this control, the Applicant argued before
the Court that the political leaders of the contra force had been selected,
installed and paid by the United States ; it also argued that the purpose
herein was both to guarantee United States control over this force. and to
excite sympathy for the Government's policy within Congress and among
the public in the United States. According to the affidavit of Mr. Cha-
morro. who was directly concerned, when the FDN was formed "the name
of the organization, the members of the political junta, and the members of
the general staff were al1 chosen or approved by the CIA" ; later the CIA
asked that a particular person be made head of the political directorate of
the FDN, and this was done. However, the question of the selection,
installation and payment of the leaders of the contra force is merely one
aspect among others of the degree of dependency of that force. This partial
dependency on the United States authorities, the exact extent of which the
Court cannot establish, may certainly be inferred inter alia from the fact
that the leaders were selected by the United States. But it may also be
inferred from other factors, some of which have been examined by the
Court, such as the organization, training and equipping of the force, the
planning of operations, the choosing of targets and the operational support
provided.
113. The question of the degree of control of the contras by the United
States Government is relevant to the claim of Nicaragua attributing
responsibility to the United States for activities of the contras whereby the
United States has. it is alleged, violated an obligation of international law
not to kill, wound or kidnap citizens of Nicaragua. The activities in
question are said to represent a tactic which includes "the spreading of
terror and danger to non-combatants as an end in itself with no attempt to
12
observe humanitarian standards and no reference to the concept of mili-

tary necessity". In support of this, Nicaragua has catalogued numerous
incidents, attributed to "CIA-trained mercenaries" or "mercenary forces",
of kidnapping, assassination, torture, rape, killing of prisoners, and killing
of civilians not dictated by military necessity. The declaration of Com-
mander Carrion annexed to the Memorial lists the first such incident in
December 1981, and continues up to the end of 1984. Two of the witnesses
called by Nicaragua (Father Loison and Mr. Glennon) gave oral evidence
as to events of this kind. By way of examples of evidence to provide "direct
proof of the tactics adopted by the contras under United States guidance
and control", the Memorial of Nicaragua offers a statement, reported in
the press, by the ex-FDN leader Mr. Edgar Chamorro, repeated in the
latter's affidavit, of assassinations in Nicaraguan villages ; the alleged
existence of a classified Defence Intelligence Agency report of July 1982,
reported in the New York Times on 21 October 1984, disclosing that the
contras were carrying out assassinations ; and the preparation by the CIA
in 1983 of a manual of psychological warfare. At the hearings, reliance was
also placed on the affidavit of Mr. Chamorro.
114. In this respect, the Court notes that according to Nicaragua, the
contras are no more than bands of mercenaries which have been recruited,
organized, paid and commanded by the Government of the United States.
This would mean that they have no real autonomy in relation to that
Government. Consequently, any offences which they have committed
would be imputable to the Government of the United States, like those of
any other forces placed under the latter's command. In the view of Nica-
ragua, "stricto sensu, the military and paramilitary attacks launched by the
United States against Nicaragua do not constitute a case of civil strife.
They are essentially the acts of the United States." If such a finding of the
imputability of the acts of thecontras to the United States were to be made,
no question would arise of mere complicity in those acts, or of incitement
of the contras to commit them.
115. The Court has taken the view (paragraph 110 above) that United
States participation, even if preponderant or decisive, in the financing,
organizing, training, supplying and equipping of the contras, the selection
of its military or paramilitary targets, and the planning of the whole of its
operation, is still insufficient in itself, on the basis of the evidence in the
possession of the Court, for the purpose of attributing to the United States
the acts committed by the contras in the course of their military or
paramilitary operations in Nicaragua. Al1 the forms of United States
participation mentioned above, and even the general control by the res-
pondent State over a force with a high degree of dependency on it, would
not in themselves mean, without further evidence, that the United States
directed or enforced the perpetration of the acts contrary to human rights
and humanitarian law alleged by the applicant State. Such acts could well
be committed by members of the contras without the control of the United
13
States. For this conduct to give rise to legal responsibility of the United
States, it would in principle have to be proved that that State had effective
control of the military or paramilitary operations in thecourse of which the
alleged violations were committed.
116. The Court does not consider that the assistance given by the
United States to the contras warrants the conclusion that these forces are
subject to the United States to such an extent that any acts they have
committed are imputable to that State. It takes the view that the contras
remain responsible for their acts, and that the United States is not respon-
sible for the acts of the contras, but for its own conduct vis-à-vis Nicaragua,
including conduct related to the acts of the contras. What the Court has to
investigate is not the cornplaints relating to alleged violations of humani-
tarian law by the contras, regarded by Nicaragua as imputable to the
United States, but rather unlawful acts for which the United States may be
responsible directly in connection with the activities of the contras. The
lawfulness or otherwise of such acts of the United States is a question
different from the violations of humanitarian law of which the contras may
or may not have been guilty. It is for this reason that the Court does not
have to determine whether the violations of humanitarian law attributed to
the contras were in fact committed by them. At the same tirne, the question
whether the United States Government was, or must have been, aware at
the relevant time that allegations of breaches of humanitarian law were
being made against the contras is relevant to an assessment of the lawful-
ness of the action of the United States. In this respect, the material facts are
primarily those connected with the issue in 1983 of a manual of psycho-
logical operations.
117. Nicaragua has in fact produced in evidence before the Court two
publications which it claims were prepared by the CIA and supplied to the
contras in 1983. The first of these, in Spanish, is entitled "Operaciones
sicolbgicas en guerra de guerrillas" (Psychological Operations in Guerrilla
Warfare), by 'Tayacan" ; the certified copy supplied to the Court carries no
publisher's name or date. In its Preface, the publication is described as
"a manual for the training of guerrillas in psychological operations,

and its application to the concrete case of the Christian and demo-
cratic crusade being waged in Nicaragua by the Freedom Com-
mandos".
The second is entitled the Freedom Fighter's Manual, with the subtitle
"Practical guide to liberating Nicaragua frorn oppression and misery by
paralyzing the military-industrial complex of the traitorous marxist state
without having to use special tools and with minimal risk for the comba-
tant". The text is printed in English and Spanish, and illustrated with
simple drawings : i t consists of guidance for elementary sabotage tech-
niques. The only indications available to the Court of its authorship are
reports in the New York Times, quoting a United States Congressman and
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RECUEIL
DES ARRÊTS, AVIS CONSULTATIFS ET ORDONNANCES
AFFAIRE D U DETROIT
DE C O R F O U
(FOND)
ARRET DU 9 AVRIL 1949
REPORTS
OF
JUDGMENTS, ADVISORY OPINIONS AND ORDERS
T H E CORFU
CHANNEL CASE
(MERITS)
jttbGlMENT OF APRIL 9th, 1949
LEYDE
Il
LEY DEN
SOCIÉTÉ D'ÉDITIONS A. W. SIJTHOFF'S
A. W. SIJTHOFF PUBLISHING COMPANY
44
The Court cannot accept such a line of defence. The Court

can only regard the alleged right of intervention as the mani-
festation of a policy of force, such .as has, in the past, given rise
to most serious abuses and such as cannot, whatever be the
present defects in international organization, find a place in
international law. Intervention is perhaps still less admissible
in the particular form i t would take here ; for, from the nature
of things, i t would be reserved for the most powerful States,
and might easily lead to perverting the administration of inter-
national justice itself.
The United Kingdom Agent, in his speech in reply, has further
classified "Operation Retail" among methods of self-protection or
self-help. The Court cannot accept this defence either. Between
independent States, respect for territorial sovereignty is an essential
foundation of intemational relations. The Court recognizes that
the Albanian Govemment's complete failure to cany out its duties
after the explosions, and the dilatory nature of its diplornatic notes,
are extenuating circumstances for the action of the United
Kingdom Government. But to ensure respect for international
law, of which i t is the organ, the Court must declare that the
action of the British Navy CO stituted a violation of Albanian
sovereignty.
This declaration is in accordance with the request made by
Albania through her Counsel, and is in itself appropriate satis-
faction.
The method of carnina" out "O~erationRetail" has also been
4
criticized by the Albanian Govemment, the main ground of com-

plaint being that the United Kingdom, on that occasion, made use
of an unnecessarily large display of force, out of proportion to the
requirements of the sweep. The Court thinks that this criticism
is not justified. I t does not consider that the action of the British
Navy was a de~nonstrationof force for the purpose of exercising
political pressure on Albania. The responsible naval commander,
who kept his ships a t a distance from the coast, cannot be reproached
for having employed an important covering force in a region where
twice within a few months his ships had been the object of serious
outrages.
45
INTERNATIONAL COURT O F JUSTICE
REPORTS OF JUDGMENTS.

PARAMILITARY ACTIVITIES IN AND
AGAINST NICARAGUA
M ERITS
JUDGMENT OF 27 JUNE 1986
RECUEIL DES ARRÊTS.

AFFAIRE DES ACTIVITÉS MILITAIRES

ET PARAMILITAIRES AU NICARAGUA
ET CONTRE CELUI-CI
(NICARAGUA c. ÉTATS-UNIS D'AMÉRIQUE)
FOND
ARRÊT DC' 27 JUIN 1986

46
the treaties which cannot be applied by virtue of the United States reser-
vation. O n a nurnber of points, the areas governed by the two sources of
law d o not exactly overlap, and the substantive rules in which they are
frarned are not identical in content. But in addition, even if a treaty norrn
and a custornary norrn 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 rnust necessarily deprive the cus-
tornary norm of its separate applicability. Nor can the multilateral treaty
reservation be interpreted as rneaning that, once applicable to a given
dispute, it would exclude the application of any rule of custornary inter-
national law the content of which was the sarne as, or analogous to, that of
the treaty-law rule which had caused the reservation to become effec-
tive.
176. As regards the suggestion that the areas cover'ed by the two sources
of law are identical, the Court observes that the United Nations Charter,
the convention to which most of the United States argument is directed, by
no rneans covers the whole area of the regulation of the use of force in
international relations. O n one essential point, this treaty itself refers to
pre-existing custornary international law ; this reference to custornary law
is contained in the actual text of Article 5 1, which mentions the "inherent
right" (in the French text the "droit naturel") of individual or collective
self-defence, which "nothing in the present Charter shall impair" and
which applies in the event of an arrned attack. The Court therefore finds
that Article 5 1 of the Charter is only rneaningful on the basis that there is a
"natural" or "inherent" right of self-defence, and it is hard to see how this
can be other than of a custornary nature, even if its present content has
been confirmed and influenced by the Charter. Moreover the Charter,
having itself recognized the existence of this right, does not go on to
regulate directly al1 aspects of its content. For exarnple, it does not contain
any specific rule whereby self-defence would warrant only rneasures which
are proportional to the arrned attack and necessary to respond to it, a rule
well established in custornary international law. Moreover, a definition of
the "armed attack" which, if found to exist, authorizes the exercise of the
"inherent right" of self-defence, is not provided in the Charter, and is not
part of treaty law. It cannot therefore be held that Article 51 is a provision
which "subsumes and supervenes" custornary international law. It rather
dernonstrates that in the field in question, the importance of which for the
present dispute need hardly be stressed. custornary international law con-
tinues to exist alongside treaty law. The areas governed by the two sources
of law thus d o not overlap exactly, and the rules d o not have the sarne
content. This could also be dernonstrated for other subjects, in particular
for the principle of non-intervention.
177. But as observed above (paragraph 175), even if the custornary

norrn and the treaty norrn were to have exactly the sarne content, this
47
Memorial on the Merits submitted in the present case States that the
principle prohibiting the use of force embodied in Article 2, paragraph 4, of
the Charter of the United Nations "has come to be recognized as jus
cogens". The United States, in its Counter-Memorial on the questions of
jurisdiction and admissibility, found i t material to quote the views of
scholars that this principle is a "universal norm", a "universal interna-
tional law", a "universally recognized principle of international law", and
a "principle of jus cogens".
191. As regards certain particular aspects of the principle in question, it
will be necessary to distinguish the most grave forms of the use of force
(those constituting an armed attack) from other less grave forms. In
determining the legal rule which applies to these latter forms, the Court can
again draw on the formulations contained in the Declaration on Principles
of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations
(General Assembly resolution 2625 (XXV), referred to above). As already
observed, the adoption by States of this text affords an indication of their
opinio juris as to customary international law on the question. Alongside
certain descriptions which may refer to aggression, this text includes others
which refer only to less grave forms of the use of force. In particular,
according to this resolution :
"Every State has the duty to refrain from the threat or use of force to
violate the existing international boundaries of another State or as a
means of solving international disputes, including territorial disputes
and problems concerning frontiers of States.
States have a duty to refrain from acts of reprisa1 involving the use
of force.
Every State has the duty to refrain from any forcible action which
deprives peoples referred to in the elaboration of the principle of
equal rights and self-determination of that right to self-determination
and freedom and independence.
Every State has the duty to refrain from organizing or encouraging

the organization of irregular forces or armed bands, including mer-
cenaries, for incursion into the territory of another State.
Every State has the duty to refrain from organizing, instigating,

assisting or participating in acts of civil strife or terrorist acts in
another State or acquiescing in organized activities within its territory
directed towards the commission of such acts, when the acts referred
to in the present paragraph involve a threat or use of force."
48
192. Moreover, in the part of this same resolution devoted to the prin-
ciple of non-intervention in matters within the national jurisdiction of
States, a very similar rule is found :
"Also, no State shall organize, assist, foment, finance, incite or
tolerate subversive, terrorist or armed activities directed towards the
violent overthrow of the régime of another State, or interfere in civil
strife in another State."
In the context of the inter-American system, this approach can be traced

back at least to 1928 (Convention on the Rights and Duties of States in the
Event of Civil Strife, Art. 1 (1)) ; it was confirmed by resolution 78 adopted
by the General Assembly of the Organization of American States on
21 April 1972. The operative part of this resolution reads as follows :
"The General Assembly Resolves
1. To reiterate solemnly the need for the member states of the
Organization to observe strictly the principles of nonintervention and
self-determination of peoples as a means of ensuring peaceful coex-
istence among them and to refrain from committing any direct or
indirect act that might constitute a violation of those principles.
2. To reaffirm the obligation of those states to refrain from applying

economic, political, or any other type of measures to coerce another
state and obtain from it advantages of any kind.
3. Similarly, to reaffirm the obligation of these states to refrain from

organizing, supporting, promoting, financing, instigating, or tolera-
ting subversive, terrorist, or armed activities against another state and
from intervening in a civil war in another state or in its interna1
struggles."
193. The general rule prohibiting force allows for certain exceptions. In
view of the arguments advanced by the United States to justify the acts of
which it is accused by Nicaragua, the Court must express a view on the
content of the right of self-defence, and more particularly the right of
collective self-defence. First, with regard to the existence of this right, it
notes that in the language of Article 5 1 of the United Nations Charter, the
inherent right (or "droit naturel") which any State possesses in the event of
an armed attack, covers both collective and individual self-defence. Thus,
the Charter itself testifies to the existence of the rieht of collective self-
.
2
defence in customary international law. Moreover, just as the wording of

certain General Assembly declarations adopted by States demonstrates
their recognition of the principle of the prohibition of force as definitely a
matter of customary international law, some of the wording in those
declarations operates similarly in respect of the right of self-defence (both
collective and individual). Thus, in the declaration quoted above on the
49
Principles of International Law concerning Friendly Relations and Co-

operation among States in accordance with the Charter of the United
Nations, the reference to the prohibition of force is followed by a para-
graph stating that :
"nothing in the foregoing paragraphs shall be construed as enlarging
or diminishing in any way the scope of the provisions of the Charter
concerning cases in which the use of force is lawful".
This resolution demonstrates that the States represented in the General

Assembly regard the exception to the prohibition of force constituted by
the right of individual or collective self-defence as already a matter of
customary international law.
194. With regard to the characteristics governing the right of self-
defence, since the Parties consider the existence of this right to be estab-
lished as a matter of customary international law, they have concentrated
on the conditions governing its use. In view of the circumstances in which
the dispute has arisen, reliance is placed by the Parties only on the right of
self-defence in the case of an armed attack which has already occurred, and
the issue of the lawfulness of a response to the imminent threat of armed
attack has not been raised. Accordingly the Court expresses no view on
that issue. The Parties also agree in holding that whether the response to
the attack is lawful depends on observance of the criteria of the necessity
and the proportionality of the measures taken in self-defence. Since the
existence of the right of collective self-defence is established in customary
international law, the Court must define the specific conditions which may
have to be met for its exercise, in addition to the conditions of necessity and
proportionality to which the Parties have referred.
195. In the case of individual self-defence, the exercise of this right is
subject to the State concerned having been the victim of an armed attack.
Reliance on collective self-defence of course does not remove the need for
this. There appears now to be general agreement on the nature of the acts
which can be treated as constituting armed attacks. In particular, it may be
considered to be agreed that an armed attack must be understood as
including not merely action by regular armed forces across an interna-
tional border, but also "the sending by or on behalf of a State of armed
bands, groups, irregulars or mercenaries, which carry out acts of armed
force against another State of such gravity as to amount to" (inter alia) an
actual armed attack conducted by regular forces, "or its substantial
involvement therein". This description, contained in Article 3, paragraph
(g), of the Definition of Aggression annexed to General Assembly reso-
lution 3314 (XXIX), may be taken to reflect customary international law.
The Court sees no reason to deny that, in customary law, the prohibition of
armed attacks may apply to the sending by a State of armed bands to the
territory of another State, if such an operation, because of its scale and
effects, would have been classified as an armed attack rather than as a mere
frontier incident had it been carried out by regular armed forces. But the
50
Court does not believe that the concept of "armed attack" includes not
only acts by armed bands where such acts occur on a significant scale but
also assistance to rebels in the form of the provision of weapons or lo-
gistical or other support. Such assistance may be regarded as a threat or use
of force, or amount to intervention in the interna1 or external affairs of
other States. It is also clear that it is the State which is the victim of an
armed attack which must form and declare the view that it has been so
attacked. There is no rule in customary international law permitting
another State to exercise the right of collective self-defence on the basis of
its own assessment of the situation. Where collective self-defence is
invoked, it is to be expected that the State for whose benefit this right is
used will have declared itself to be the victim of an armed attack.
196. The question remains whether the lawfulness of the use of collec-
tive self-defence by the third State for the benefit of the attacked State also
depends on a request addressed by that State to the third State. A provision
of the Charter of the Organization of American States is here in point : and
while the Court has no jurisdiction to consider that instrument as appli-
cable to the dispute, it may examine it to ascertain what light it throws on
the content of customary international law. The Court notes that the
Organization of American States Charter includes, in Article 3 (f),the
principle that : "an act of aggression against one American State is an act
of aggression against al1 the other American States" and a provision in
Article 27 that :
"Every act of aggression by a State against the territorial integrity
or the inviolability of the territory or against the sovereignty or
political independence of an American State shall be considered an
act of aggression against the other American States."
197. Furthermore, by Article 3, paragraph 1, of the Inter-American
Treaty of Reciprocal Assistance, signed at Rio de Janeiro on 2 September
1947, the High-Contracting Parties
"agree that an armed attack by any State against an American State
shall be considered as an attack against al1 the American States and,
consequently, each one of the said Contracting Parties undertakes to
assist in meeting the attack in the exercise of the inherent right of
individual or collective self-defence recognized by Article 5 1 of the
Charter of the United Nations" ;
and under paragraph 2 of that Article,
"On the request of the State or States directly attacked and until the
decision of the Organ of Consultation of the Inter-American System,
each one of the Contracting Parties may determine the immediate
51
Council, the United States has itself taken the view that failure to observe
the requirement to make a report contradicted a State's claim to be acting
on the basis of collective self-defence (SPV.2187).
236. Similarly, while no strict legal conclusion may be drawn from the
date of El Salvador's announcement that it was the victim of an armed
attack. and the date of its official request addressed to the United States
concerning the exercise of collective self-defence, those dates have a sig-
nificance as evidence of El Salvador's view of the situation. The declaration
and the request of El Salvador. made publicly for the first time in August
1984, d o not support the contention that in 198 1 there was an armed attack
capable of serving as a legal foundation for United States activities which
began in the second half of that year. The States concerned did not behave
as though there were an armed attack at the time when the activities
attributed by the United States to Nicaragua, without actually constituting
such an attack. were nevertheless the most accentuated ; they did so
behave only at a time when these facts fell furthest short of what would be
required for the Court to take the view that an armed attack existed on the
part of Nicaragua against El Salvador.
237. Since the Court has found that the condition sine qua non required
for the exerciseof the right of collective self-defence by the United States is
not fulfilled in this case, the appraisal of the United States activities in
relation to the criteria of necessity and proportionality takes on a different
significance. As a result of this conclusion of the Court, even if the United
States activities in question had been carried on in strict compliance with
the canons of necessity and proportionality, they would not thereby
become lawful. If however they were not, this may constitute an additional
ground of wrongfulness. O n the question of necessity, the Court observes
that the United States measures taken in December 198 1 (or, at the earliest,
March of that year - paragraph 93 above) cannot be said to correspond to
a "necessity" justifying the United States action against Nicaragua on the
basis of assistance given by Nicaragua to the armed opposition in El
Salvador. First, these measures were only taken, and began to produce
their effects. several months after the major offensive of the armed oppo-
sition against the Government of El Salvador had been completely
repulsed (January 1981). and the actions of the opposition considerably
reduced in consequence. Thus it was possible to eliminate the main danger
to the Salvadorian Government without the United States embarking o n
activities in and against Nicaragua. Accordingly, it cannot be held that
these activities were undertaken in the light of necessity. Whether or not
the assistance to the contras might meet the criterion of proportionality, the
Court cannot regard the United States activities summarized in para-
graphs 80, 8 1 and 86, Le., those relating to the mining of the Nicaraguan
ports and the attacks o n ports, oil installations, etc., as satisfying that
criterion. Whatever uncertainty may exist as to the exact scale of the aid
received by the Salvadorian armed opposition from Nicaragua, it is clear
that these latter United States activities in question could not have been
proportionate to that aid. Finally on this point, the Court must also
52
observe that the reaction of the United States in the context of what it
regarded as self-defence was continued long after the period in which any
presumed armed attack by Nicaragua could reasonably be contem-
plated.
238. Accordingly, the Court concludes that the plea of collective self-
defence against an alleged armed attack on El Salvador. Honduras or
Costa Rica, advanced by the United States to justify its conduct toward
Nicaragua. cannot be upheld ; and accordingly that the United States has
violated the principle prohibiting recourse to the threat or use of force by
the acts listed in paragraph 227 above. and by its assistance to the contras
to the extent that this assistance "involve[s] a threat or use of force"
(paragraph 228 above).
239. The Court comes now to the application in this case of the principle
of non-intervention in the internal affairs of States. It is argued by Nica-
ragua that the "military and paramilitary activities aimed at the govern-
ment and people of Nicaragua" have two purposes :
"(CI)The actual overthrow of the existing lawful government of

Nicaragua and its replacement by a government acceptable
to the United States ; and
(h) The substantial damaging of the economy, and the weakening of
the political system, in order to coerce the government of Nica-
ragua into the acceptance of United States policies and political
demands."
Nicaragua also contends that the various acts of an economic nature.
summarized in paragraphs 123 to 125 above, constitute a form of "in-
direct" intervention in Nicaragua's internal affairs.
240. Nicaragua has laid much emphasis on the intentions it attributes to
the Government of the United States in giving aid and support to the
contras. It contends that the purpose of the policy of the United States and
its actions against Nicaragua in pursuance of this policy was. from the
beginning, to overthrow the Government of Nicaragua. In order to
demonstrate this, it has drawn attention to numerous statements by high
officiais of the United States Government, in particular by President
Reagan, expressing solidarity and support for the contras, described on
occasion as "freedom fighters", and indicating that support for the contras
would continue until the Nicaraguan Government took certain action,
desired by the United States Government. amounting in effect to a sur-
render to the demands of the latter Government. The official Report of the
53
REPORTS OF JUDGMENTS,
CASE CONCERNING OIL PLATFORMS

(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
OF AMERICA)
JUDGMENT OF 6 NOVEMBER 2003
COUR INTERNATIONALE DE JUSTICE
RECUEIL DES ARRÊTS,

(RÉPUBLIQUE ISLAMIQUE D'IRAN c. ÉTATS-UNIS

D'AMÉRIQUE)
ARRÊT DU 6 NOVEMBRE 2003

54
Persian Gulf was threatened by Iran's repeated attacks on neutral ves-

sels; that the lives of United States nationals were put at risk; that United
States naval vessels were seriously impeded in their security duties; and
that the United States Government and United States nationals suffered
severe financial losses. According to the United States, it was clear that
diplomatic measures were not a viable means of deterring Iran from its
attacks: "Accordingly, armed action in self-defense was the only option
left to the United States to prevent additional Iranian attacks."
50. The Court will thus first concentrate on the facts tending to show
the validity or otherwise of the claim to exercise the right of self-defence.
In its communication to the Security Council, cited above, the United
States based this claim on the existence of
"a series of unlawful armed attacks by Iranian forces against the

United States, including laying mines in international waters for the
purpose of sinking or damaging United States flag ships, and firing
on United States aircraft without provocation";
it referred in particular to a missile attack on the Sea Isle City as being

the specific incident that led to the attack on the Iranian platforms.
Before the Court, it has based itself more specifically on the attack on the
Sea Isle City, but has continued to assert the relevance of the other
attacks (see paragraph 62 below). To justify its choice of the platforms as
target, the United States asserted that they had "engaged in a variety of
actions directed against United States flag and other non-belligerent
vessels and aircraft". Iran has denied any responsibility for (in particular)
the attack on the Sea Isle City, and has claimed that the platforms had
no military purpose, and were not engaged in any military activity.
51. Despite having thus referred to attacks on vessels and aircraft of

other nationalities, the United States has not claimed to have been exer-
cising collective self-defence on behalf of the neutral States engaged in
shipping in the Persian Gulf; this would have required the existence of a
request made to the United States "by the State which regards itself as
the victim of an armed attack" (1. C. J. Reports 1986, p. 105, para. 199).
Therefore, in order to establish that it was legally justified in attacking
the Iranian platforms in exercise of the right of individual self-defence,
the United States has to show that attacks had been made upon it for
which Iran was responsible; and that those attacks were of such a nature
55
as to be qualified as "armed attacks" within the meaning of that expres-

sion in Article 51 of the United Nations Charter, and as understood in
customary law on the use of force. As the Court observed in the case con-
cerning Military and Paramilitary Activities in and against Nicaragua, it
is necessary to distinguish "the most grave forms of the use of force
(those constituting an armed attack) from other less grave forms" (1. C. J.
Reports 1986, p. 101, para. 191), since "In the case of individual self-
defence, the exercise of this right is subject to the State concerned having
been the victim of an armed attack" (ibid., p. 103, para. 195). The United
States must also show that its actions were necessary and proportional to
the armed attack made on it, and that the platforms were a legitimate
military target open to attack in the exercise of self-defence.
52. Since it was the missile attack on the Sea Isle City that figured
most prominently in the United States contentions, the Court will first
examine in detail the evidence relating to that incident. The Sea Isle City
was a Kuwaiti tanker reflagged to the United States; on 16 October 1987
it had just ended a voyage under "Operation Earnest Will" (see para-
graph 24 above), when it was hit by a missile near Kuwait's Al-Ahmadi
Sea Island (or Mina al-Ahmadi) terminal. This incident, which caused
damage to the ship and injury to six crew members, was claimed by the
United States to be the seventh involving Iranian anti-ship cruise missiles
in the area in the course of 1987. The United States asserts that the mis-
sile that struck the Sea Isle City was launched by Iran from a facility
located in the Fao area. It recalls that in February 1986 Iran had taken
control of a large part of the Fao peninsula and had captured three
formerly Iraqi missile sites in the area, which it held at the time of the
attack. It also maintains that there was an additional active cruise missile
staging facility on Iranian territory near the Fao peninsula.
53. The evidence produced by the United States includes images,

taken by satellite or aerial reconnaissance aircraft, of the Fao area and
of the four alleged missile sites under Iranian control at the time of the
attack, as well as a complementary expert report describing and exam-
ining this imagery. Although the United States has indicated that it was
unable to recover and examine fragments of the specific missile that hit
the Sea Isle City, it has produced, in the present proceedings, a state-
ment by an independent expert, dated 27 March 1997, based on a pre-
vious examination by United States military analysts of fragments
retrieved from other similar incidents in early 1987. That evidence shows,
in the United States submission, that the specific missile was a land-
launched HY-2 cruise missile of Chinese manufacture (also known as the
"Silkworm" missile). The United States has also produced the testi-
mony, dated 21 May 1997, of two Kuwaiti officers, to the effect that
military personnel stationed on Kuwaiti islands had witnessed, in
January, September and October 1987, the launching of six missiles
from Iranian-controlled territory in the Fao area; in addition, one of
United Nations
56 A/RES/20/2131
Distr: General
General Assembly 21 December 1965
Twentieth session
Agenda item 107
Resolution adopted by the General Assembly
2131 (XX). Declaration on the Inadmissibility of Intervention

in the Domestic Affairs of States and the Protection of Their
Independence and Sovereignty
The General Assembly,
Deeply concerned at the gravity of the international situation and the increasing threat
to universal peace due to armed intervention and other direct or indirect forms of
interference threatening the sovereign personality and the political independence of
States,
Considering that the United Nations, in accordance with their aim to eliminate war,
threats to the peace and acts of aggression, created an Organization, based on the
sovereign equality of States, whose friendly relations would be based on respect for the
principle of equal rights and self-determination of peoples and on the obligation of its
Members to refrain from the threat or use of force against the territorial integrity or
political independence of any State,
Recognizing that, in fulfilment of the principle of self-determination, the General

Assembly, in the Declaration on the Granting of Independence to Colonial Countries
and Peoples contained in resolution 1514 (XV) of 14 December 1960, stated its conviction
that all peoples have an inalienable right to complete freedom, the exercise of their
sovereignty and the integrity of their national territory, and that, by virtue of that right,
they freely determine their political status and freely pursue their economic, social and
cultural development,
Recalling that in the Universal Declaration of Human Rights the General Assembly
proclaimed that recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice and
peace in the world, without distinction of any kind,
Reaffirming the principle of non-intervention, proclaimed in the charters of the

Organization of American States, the League of Arab States and the Organization of
African Unity and affirmed at the conferences held at Montevideo, Buenos Aires,
Chapultepec and Bogotá, as well as in the decisions of the Asian-African Conference at
Bandung, the First Conference of Heads of State or Government of Non-Aligned
Countries at Belgrade, in the Programme for Peace and International Cooperation
adopted at the end of the Second Conference of Heads of State or Government of Non-
Aligned Countries at Cairo, and in the declaration on subversion adopted at Accra by the
Heads of State and Government of the African States,
57
Recognizing that full observance of the principle of the non-intervention of States in
the internal and external affairs of other States is essential to the fulfilment of the
purposes and principles of the United Nations,
Considering that armed intervention is synonymous with aggression and, as such, is

contrary to the basic principles on which peaceful international cooperation between
States should be built,
Considering further that direct intervention, subversion and all forms of indirect
intervention are contrary to these principles and, consequently, constitute a violation of
the Charter of the United Nations,
Mindful that violation of the principle of non-intervention poses a threat to the

independence, freedom and normal political, economic, social and cultural development
of countries, particularly those which have freed themselves from colonialism, and can
pose a serious threat to the maintenance of peace,
Fully aware of the imperative need to create appropriate conditions which would
enable all States, and in particular the developing countries, to choose without duress or
coercion their own political, economic and social institutions,
In the light of the foregoing considerations, solemnly declares:
1. No State has the right to intervene, directly or indirectly, for any reason whatever,
in the internal or external affairs of any other State. Consequently, armed intervention
and all other forms of interference or attempted threats against the personality of the
State or against its political, economic and cultural elements, are condemned.
2. No State may use or encourage the use of economic, political or any other type of
measures to coerce another State in order to obtain from it the subordination of the
exercise of its sovereign rights or to secure from it advantages of any kind. Also, no State
shall organize, assist, foment, Finance, incite or tolerate subversive, terrorist or armed
activities directed towards the violent overthrow of the regime of another State, or
interfere in civil strife in another State.
3. The use of force to deprive peoples of their national identity constitutes a violation
of their inalienable rights and of the principle of non-intervention.
4. The strict observance of these obligations is an essential condition to ensure that

nations live together in peace with one another, since the practice of any form of
intervention not only violates the spirit and letter of the Charter of the United Nations
but also leads to the creation of situations which threaten international peace and
security.
5. Every State has an inalienable right to choose its political, economic, social and
cultural systems, without interference in any form by another State.
6. All States shall respect the right of self-determination and independence of

peoples and nations, to be freely exercised without any foreign pressure, and with
absolute respect for human rights and fundamental freedoms. Consequently, all States
shall contribute to the complete elimination of racial discrimination and colonialism in
all its forms and manifestations.
7. For the purpose of the present Declaration, the term "State" covers both individual
States and groups of States.
8. Nothing in this Declaration shall be construed as affecting in any manner the

relevant provisions of the Charter of the United Nations relating to the maintenance of
58
international peace and security, in particular those contained in Chapters VI, VII and
VIII.
1408th plenary meeting

21 December 1965
59
60
61
62
63
64

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MOOT COURT PRESENTATION, 2020

SUPPLEMENTING THE MEMORIAL SUBMISSION ON BEHALF OF THE

ARINDAM BAISHYA 188482

DEBASISH DUWARIA 188169

Text adopted by the International Law Commission at its fifty-third session, in

Copyright © United Nations

INTERNATIONAL COURT O F JUSTICE

CASE CONCERNING MILITARY AND

JUDGMENT OF 27 JUNE 1986

COUR INTERNATIONALE D E JUSTICE

RECUEIL DES ARRÊTS.

AFFAIRE DES ACTIVITÉS MILITAIRES

ARRÊT DC' 27 JUIN 1986

INTERNATIONAL COURT OF JUSTICE

CASE CONCERNING MILITARY AND

Failure of Respondent to appear - Statute of the Court, Article 53 - Equality of

Jwticiability of the dispute - "Legal dispute" (Statute, Article 36 paragraph 2).

Establishment offacts - Relevantperiod - Powers of the Court - Press informa-

Principle prohibiting recourse to the threat or use of force in international rela-

Claim for reparation.

Present :President NAGENDRA SINGH; Vice-President DE LACHARRIÈRE ;

In the case concerning military and paramilitary activities in and against

Hon. Abram Chayes, Felix Frankfurter Professor of Law, Harvard Law

operations. Helicopters with Nicaraguan crews are reported to have taken

102. It appears to be recognized by Nicaragua that, with the exception

for Nicaragua, on the impact on contra tactics of the availability of intel-

105. It has been contended by Nicaragua that in 1983 a "new strategy"

62 MILITARY AND PARAMILlTARY ACTIVITIES (JUDGMENT)

110. So far as the potential control constituted by the possibility of

observe humanitarian standards and no reference to the concept of mili-

"a manual for the training of guerrillas in psychological operations,

INTERNATIONAL COURT OF JUSTICE

The Court cannot accept such a line of defence. The Court

criticized by the Albanian Govemment, the main ground of com-

INTERNATIONAL COURT O F JUSTICE

CASE CONCERNING MILITARY AND

JUDGMENT OF 27 JUNE 1986

COUR INTERNATIONALE D E JUSTICE

RECUEIL DES ARRÊTS.

AFFAIRE DES ACTIVITÉS MILITAIRES

ARRÊT DC' 27 JUIN 1986

177. But as observed above (paragraph 175), even if the custornary

Every State has the duty to refrain from organizing or encouraging

Every State has the duty to refrain from organizing, instigating,

In the context of the inter-American system, this approach can be traced

2. To reaffirm the obligation of those states to refrain from applying

3. Similarly, to reaffirm the obligation of these states to refrain from

defence in customary international law. Moreover, just as the wording of

Principles of International Law concerning Friendly Relations and Co-

This resolution demonstrates that the States represented in the General

"(CI)The actual overthrow of the existing lawful government of

INTERNATIONAL COURT OF JUSTICE

CASE CONCERNING OIL PLATFORMS

JUDGMENT OF 6 NOVEMBER 2003

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,

(RÉPUBLIQUE ISLAMIQUE D'IRAN c. ÉTATS-UNIS

ARRÊT DU 6 NOVEMBRE 2003