| I. | Substantive International Law - First Part |
| 7. | LAW OF TREATIES |
| 7.9. | Specific Treaties |
| 7.9.4. | Treaty of Friendship Commerce and Navigation of 1956
between the United States and Nicaragua |
¤
[pp. 115-116] In its Judgment of 26 November 1984, the Court
concluded that, in so far as the claims presented in Nicaragua's Application
revealed the existence of a dispute as to the interpretation or application of
the Articles of the 1956 Treaty of Friendship, Commerce and Navigation between
the Parties mentioned in paragraph 82 of that Judgment (that is, Arts. XIX, XlV,
XVII, XX, I), it had jurisdiction to deal with them under Article XXIV,
paragraph 2, of that Treaty. Having thus established its jurisdiction to
entertain the dispute between the Parties in respect of the interpretation and
application of the Treaty in question, the Court must determine the meaning of
the various provisions which are relevant for its judgment. In this connection,
the Court has in particular to ascertain the scope of Article XXI, paragraphs 1
(c) and 1 (d), of the Treaty. According to that clause
"the present Treaty shall not preclude the application of measures:
| (c) | regulating the production of or traffic in arms, ammunition and implements of war, or traffic in other materials carried on directly or indirectly for the purpose of supplying a military establishment; |
| (d) | necessary to fulfill the obligations of a Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests". |
In the Spanish text of the Treaty (equally authentic with the English text)
the last phrase is rendered as "sus intereses esenciales y seguridad".
This article cannot be interpreted as removing the present dispute as to the
scope of the Treaty from the Court's jurisdiction. Being itself an article of
the Treaty, it is covered by the provision in Article XXIV that any dispute
about the "interpretation or application" of the Treaty lies within
the Court's jurisdiction. Article XXI defines the instances in which the Treaty
itself provides for exceptions to the generality of its other provisions, but it
by no means removes the interpretation and application of that article from the
jurisdiction of the Court as contemplated in Article XXIV. That the Court has
jurisdiction to determine whether measures taken by one of the Parties fall
within such an exception, is also clear a contrario from the fact that
the text of Article XXI of the Treaty does not employ the wording which was
already to be found in Article XXI of the General Agreement on Tariffs and
Trade. This provision of GATT, contemplating exceptions to the normal
implementation of the General Agreement, stipulates that the Agreement is not to
be construed to prevent any contracting party from taking any action which it "considers
necessary for the protection of its essential security interests", in such
fields as nuclear fission, arms, etc. The 1956 Treaty, on the contrary, speaks
simply of "necessary" measures, not of those considered by a party to
be such.
[pp. 116-117] As to subparagraph 1 (d) 1, clearly "measures...
necessary to fulfill the obligations of a Party for the maintenance or
restoration of international peace and security" must signify measures
which the State in question must take in performance of an international
commitment of which any evasion constitutes a breach. A commitment of this kind
is accepted by Members of the United Nations in respect of Security Council
decisions taken on the basis of Chapter VII of the United Nations Charter (Art.
25), or, for members of the Organization of American States, in respect of
decisions taken by the Organ of Consultation of the Inter-American system, under
Articles 3 and 20 of the Inter-American Treaty of Reciprocal Assistance (Rio de
Janeiro, 1947). The Court does not believe that this provision of the 1956
Treaty can apply to the eventuality of the exercise of the right of individual
or collective self-defence.
On the other hand, action taken in self-defence, individual or collective,
might be considered as part of the wider category of measures qualified in
Article XXI as "necessary to protect" the "essential security
interests" of a party. In its Counter-Memorial on jurisdiction and
admissibility, the United States contended that : "Any possible doubts as
to the applicability of the FCN Treaty to Nicaragua's claims is dispelled by
Article XXI of the Treaty ..." After quoting paragraph 1 (d) (set
out in paragraph 221 above), the Counter-Memorial continues:
"Article XXI has been described by the Senate Foreign Relations
Committee as containing 'the usual exceptions relating ... to traffic in arms,
ammunition and implements of war and to measures for collective or individual
self-defense'."
It is difficult to deny that self-defence against an armed attack
corresponds to measures necessary to protect essential security interests. But
the concept of essential security interests certainly extends beyond the concept
of an armed attack, and has been subject to very broad interpretations in the
past.
[p. 138] In respect of the claim that the United States activities
have been such as to deprive the 1956 FCN Treaty of its object and purpose, the
Court has to make a distinction. It is unable to regard all the acts complained
of in that light; but it does consider that there are certain activities of the
United States which are such as to undermine the whole spirit of a bilateral
agreement directed to sponsoring friendship between the two States parties to
it. These are: the direct attacks on ports, oil installations, etc., referred to
in paragraphs 81 to 86 above; and the mining of Nicaraguan ports, mentioned in
paragraph 80 above. Any action less calculated to serve the purpose of "strengthening
the bonds of peace and friendship traditionally existing between" the
Parties, stated in the Preamble of the Treaty, could hardly be imagined.
While the acts of economic pressure summarized in paragraphs 123_to 125
above are less flagrantly in contradiction with the purpose of the Treaty, the
Court reaches a similar conclusion in respect of some of them. A State is not
bound to continue particular trade relations longer than it sees fit to do so,
in the absence of a treaty commitment or other specific legal obligation; but
where there exists such a commitment, of the kind implied in a treaty of
friendship and commerce, such an abrupt act of termination of commercial
intercourse as the general trade embargo of 1 May 1985 will normally constitute
a violation of the obligation not to defeat the object and purpose of the
treaty. The 90 per cent cut in the sugar import quota of 23 September 1983 does
not on the other hand seem to the Court to go so far as to constitute an act
calculated to defeat the object and purpose of the Treaty. The cessation of
economic aid, the giving of which is more of a unilateral and voluntary nature,
could be regarded as such a violation only in exceptional circumstances. The
Court has also to note that, by the very terms of the legislation authorizing
such aid (the Special Central American Assistance Act, 1979), of which the
Government of Nicaragua must have been aware, the continuance of aid was made
subject to the appreciation of Nicaragua's conduct by the President of the
United States. As to the opposition to the grant of loans from international
institutions, the Court cannot regard this as sufficiently linked with the 1956
FCN Treaty to constitute an act directed to defeating its object and purpose.
[pp. 139-142] Nicaragua claims that the United States has violated
the provisions of the Treaty relating to freedom of communication and commerce.
For the reasons indicated in paragraph 253 above, the Court must uphold the
contention that the mining of the Nicaraguan ports by the United States is in
manifest contradiction with the freedom of navigation and commerce guaranteed by
Article XIX, paragraph I, of the 1956 Treaty; there remains the question whether
such action can be justified under Article XXI (see paragraphs 280 to 282
below). In the commercial context of the Treaty, Nicaragua's claim is justified
not only as to the physical damage to its vessels, but also the consequential
damage to its trade and commerce. Nicaragua however also contended that all the
activities of the United States in and against Nicaragua are "violative of
the 1956 Treaty":
"Since the word 'commerce' in the 1956 Treaty must be understood in its
broadest sense, all of the activities by which the United States has
deliberately inflicted on Nicaragua physical damage and economic losses of all
types, violate the principle of freedom of commerce which the Treaty establishes
in very general terms."
It is clear that considerable economic loss and damage has been inflicted on
Nicaragua by the actions of the contras: apart from the economic impact
of acts directly attributable to the United States, such as the loss of fishing
boats blown up by mines, the Nicaraguan Minister of Finance estimated loss of
production in 1981-1984 due to inability to collect crops, etc., at some US$ 300
million. However, as already noted (paragraph 277 above) the Court has not found
the relationship between the contras and the United States Government to
have been proved to be such that the United States is responsible for all acts
of the contras.
The trade embargo declared by the United States Government on 1 May 1985 has
already been referred to in the context of Nicaragua's contentions as to acts
tending to defeat the object and purpose of the 1956 FCN Treaty. The question
also arises of its compatibility with the letter and the spirit of Article XIX
of the Treaty. That Article provides that "Between the territories of the
two Parties there shall be freedom of commerce and navigation" (para. 1)
and continues
"3. Vessels of either Party shall have liberty, on equal terms with
vessels of the other Party and on equal terms with vessels of any third country,
to come with their cargoes to all ports, places and waters of such other Party
open to foreign commerce and navigation..."
By the Executive Order dated 1 May 1985 the President of the United States
declared "I hereby prohibit vessels of Nicaraguan registry from entering
into United States ports, and transactions relating thereto". The Court
notes that on the same day the United States gave notice to Nicaragua to
terminate the Treaty under Article XXV, paragraph 3, thereof; but that Article
requires "one year's written notice" for the termination to take
effect. The freedom of Nicaraguan vessels, under Article XIX, paragraph 3, "to
come with their cargoes to all ports, places and waters" of the United
States could not therefore be interfered with during that period of notice, let
alone terminated abruptly by the declaration of an embargo. The Court
accordingly finds that the embargo constituted a measure in contradiction with
Article XIX of the 1956 FCN Treaty.
The Court has thus found that the United States is in breach of a duty not
to deprive the 1956 FCN Treaty of its object and purpose, and has committed acts
which are in contradiction with the terms of the Treaty, subject to the question
whether the exceptions in Article XXI, paragraphs 1 (c) and 1 (d),
concerning respectively "traffic in arms and measures ... necessary to
fulfill" obligations "for the maintenance or restoration of
international peace and security" or necessary to protect the "essential
security interests" of a party, may be invoked to justify the acts
complained of. In its Counter-Memorial on jurisdiction and admissibitity, the
United States relied on paragraph 1 (c) as showing the inapplicability
of the 1956 FCN Treaty to Nicaragua's claims. This paragraph appears however to
be relevant only in respect of the complaint of supply of arms to the contras,
and since the Court does not find that arms supply to be a breach of the Treaty,
or an act calculated to deprive it of its object and purpose, paragraph 1 (c)
does not need to be considered further. There remains the question of the
relationship of Article XXI, paragraph 1 (d), to the direct attacks on
ports, oil installations, etc.; the mining of Nicaraguan ports; and the general
trade embargo of 1 May 1985 (paragraphs 275 to 276 above).
In approaching this question, the Court has first to bear in mind the
chronological sequence of events. If the activities of the United States are to
be covered by Article XXI of the Treaty, they must have been, at the time they
were taken, measures necessary to protect its essential security interests. Thus
the finding of the President of the United States on 1 May 1985 that "the
policies and actions of the Government of Nicaragua constitute an unusual and
extraordinary threat to the national security and foreign policy of the United
States", even if it be taken as sufficient evidence that that was so, does
not justify action by the United States previous to that date.
Secondly, the Court emphasizes the importance of the word "necessary"
in Article XXI: the measures taken must not merely be such as tend to protect
the essential security interests of the party taking them, but must be "necessary"
for that purpose. Taking into account the whole situation of the United States
in relation to Central America, so far as the Court is informed of it (and even
assuming that the justification of self-defence, which the Court has rejected on
the legal level, had some validity on the political level), the Court considers
that the mining of Nicaraguan ports, and the direct attacks on ports and oil
installations, cannot possibly be justified as "necessary" to protect
the essential security interests of the United States. As to the trade embargo,
the Court has to note the express justification for it given in the Presidential
finding quoted in paragraph 125 above, and that the measure was one of an
economic nature, thus one which fell within the sphere of relations contemplated
by the Treaty. But by the terms of the Treaty itself, whether a measure is
necessary to protect the essential security interests of a party is not, as the
Court has emphasized (paragraph 222 above), purely a question for the subjective
judgment of the party; the text does not refer to what the party "considers
necessary" for that purpose. Since no evidence at all is available to show
how Nicaraguan policies had in fact become a threat to "essential security
interests" in May 1985, when those policies had been consistent, and
consistently criticized by the United States, for four years previously, the
Court is unable to find that the embargo was "necessary" to protect
those interests. Accordingly, Article XXI affords no defence for the United
States in respect of any of the actions here under consideration.
[p. 541 D.O. Jennings] The question arising under Article XXI is
not, however, whether such measures are justified in international law as action
taken in self-defence, or as justified counter-measures in general international
law; the question is whether the measures in question are, or are not, in breach
of the Treaty. Any operation that comes squarely within Article XXI, as a
measure taken by one party to the Treaty, as being "necessary to protect
its essential security interests", cannot be in breach of the Treaty. I do
not see what other meaning can be given to a clause which simply states that "The
present Treaty shall not preclude the application" of such measures, and
thus is a proviso to the entire Treaty.
[p. 541 D.O. Jennings] The question, however, in relation to the
1956 Treaty, is not whether the United States acted in breach of "elementary
considerations of humanity", but whether it acted also in breach of the
bilateral treaty relationship with Nicaragua, having regard to the general
proviso in Article XXI? Again it must be emphasized that the issue here is not
simply the lawfulness or unlawfulness of the act in general international law,
but whether it was also in breach of the terms of the Treaty? Certainly it is
prima facie a breach of Article XIX, providing for freedom of navigation; but is
it a "measure" excepted by the proviso clause of Article XXI? Although
not without some remaining doubts, I have come to the conclusion that Article
XXI cannot have contemplated a measure which cannot, under general international
law, be justified even as being part of an operation in legitimate self-defence.
| 1 | Subparagraph 1 (d) of Article XXXI of the 1956 FCN Treaty. |
