| I. | Substantive International Law - First Part |
| 4. | SUBJECTS OF INTERNATIONAL LAW |
| 4.2. | States |
| 4.2.5. | Fundamental Rights and Obligations |
| 4.2.5.1. | Sovereignty |
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Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. I. 27.6.1986
I.C.I.Reports 1986, p. 14
[p. 111] The Court should now mention the principle of respect for
State sovereignty, which in international law is of course closely linked with
the principles of the prohibition of the use of force and of non-intervention.
The basic legal concept of State sovereignty in customary international law,
expressed in, inter alia, Article 2, paragraph 1, of the United Nations
Charter, extends to the internal waters and territorial sea of every State and
to the air space above its territory. As to superjacent air space, the 1944
Chicago Convention on Civil Aviation (Art. 1) reproduces the established
principle of the complete and exclusive sovereignty of a State over the air
space above its territory. That convention, in conjunction with the 1958 Geneva
Convention on the Territorial Sea, further specifies that the sovereignty of the
coastal State extends to the territorial sea and to the air space above it, as
does the United Nations Convention on the Law of the Sea adopted on 10 December
1982. The Court has no doubt that these prescriptions of treaty-law merely
respond to firmly established and longstanding tenets of customary international
law.
[p. 111] The duty of every State to respect the territorial
sovereignty of others is to be considered for the appraisal to be made of the
facts relating to the mining which occurred along Nicaragua's coasts. The legal
rules in the light of which these acts of mining should be judged depend upon
where they took place. The laying of mines within the ports of another State is
governed by the law relating to internal waters, which are subject to the
sovereignty of the coastal State. The position is similar as regards mines
placed in the territorial sea. It is therefore the sovereignty of the coastal
State which is affected in such cases. It is also by virtue of its sovereignty
that the coastal State may regulate access to its ports.
[p. 128] The effects of the principle of respect for territorial
sovereignty inevitably overlap with those of the principles of the prohibition
of the use of force and of non-intervention. Thus the assistance to the contras,
as well as the direct attacks on Nicaraguan ports, oil installations, etc.,
referred to in paragraphs 81 to 86 above, not only amount to an unlawful use of
force, but also constitute infringements of the territorial sovereignty of
Nicaragua, and incursions into its territorial and internal waters. Similarly,
the mining operations in the Nicaraguan ports not only constitute breaches of
the principle of the non-use of force, but also affect Nicaragua's sovereignty
over certain maritime expanses. The Court has in fact found that these
operations were carried on in Nicaragua's territorial or internal waters or both
(paragraph 80), and accordingly they constitute a violation of Nicaragua's
sovereignty. The principle of respect for territorial sovereignty is also
directly infringed by the unauthorized overflight of a State's territory by
aircraft belonging to or under the control of the government of another State.
The Court has found above that such overflights were in fact made (paragraph 91
above).
These violations cannot be justified either by collective self-defence, for
which, as the Court has recognized, the necessary circumstances are lacking, nor
by any right of the United States to take counter-measures involving the use of
force in the event of intervention by Nicaragua in El Salvador, since no such
right exists under the applicable international law. They cannot be justified by
the activities in El Salvador attributed to the Government of Nicaragua. The
latter activities, assuming that they did in fact occur, do not bring into
effect any right belonging to the United States which would justify the actions
in question. Accordingly, such actions constitute violations of Nicaragua's
sovereignty under customary international law.
[p. 131] A State's domestic policy falls within its exclusive
jurisdiction, provided of course that it does not violate any obligation of
international law. Every State possesses a fundamental right to choose and
implement its own political, economic and social systems. Consequently, there
would normally be no need to make any enquiries, in a matter outside the Court's
jurisdiction, to ascertain in what sense and along what lines Nicaragua has
actually exercised its right.
However, the assertion of a commitment raises the question of the
possibility of a State binding itself by agreement in relation to a question of
domestic policy, such as that relating to the holding of free elections on its
territory. The Court cannot discover, within the range of subjects open to
international agreement, any obstacle or provision to hinder a State from making
a commitment of this kind. A State, which is free to decide upon the principle
and methods of popular consultation within its domestic order, is sovereign for
the purpose of accepting a limitation of its sovereignty in this field. This is
a conceivable situation for a State which is bound by institutional links to a
confederation of States, or indeed to an international organization. Both
Nicaragua and the United States are members of the Organization of American
States. The Charter of that Organization however goes no further in the
direction of an agreed limitation on sovereignty of this kind than the provision
in Article 3 (d) that
"The solidarity of the American States and the high aims which are
sought through it require the political organization of those States on the
basis of the effective exercise of representative democracy";
on the other hand, it provides for the right of every State "to
organize itself as it sees fit" (Art. 12), and to "develop its
cultural, political and economic life freely and naturally" (Art. 16).
[p. 133] The finding of the United States Congress also expressed
the view that the Nicaraguan Government had taken "significant steps
towards establishing a totalitarian Communist dictatorship". However the
regime in Nicaragua be defined, adherence by a State to any particular doctrine
does not constitute a violation of customary international law; to hold
otherwise would make nonsense of the fundamental principle of State sovereignty,
on which the whole of international law rests, and the freedom of choice of the
political, social, economic and cultural system of a State. Consequently,
Nicaragua's domestic policy options, even assuming that they correspond to the
description given of them by the Congress finding, cannot justify on the legal
plane the various actions of the Respondent complained of. The Court cannot
contemplate the creation of a new rule opening up a right of intervention by one
State against another on the ground that the latter has opted for some
particular ideology or political system.
[p. 135]... in international law there are no rules, other than such
rules as may be accepted by the State concerned, by treaty or otherwise, whereby
the level of armaments of a sovereign State can be limited, and this principle
is valid for all States without exception.
