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World Court Digest

II. Substantive International Law - Second Part
2.5. Freedom of Navigation

¤ Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14

[pp. 111-112] It is also by virtue of its sovereignty that the coastal State may regulate access to its ports.
On the other hand, it is true that in order to enjoy access to ports, foreign vessels possess a customary right of innocent passage in territorial waters for the purposes of entering or leaving internal waters; Article 18, paragraph 1 (b), of the United Nations Convention on the Law of the Sea of 10 December 1982, does no more than codify customary international law on this point. Since freedom of navigation is guaranteed, first in the exclusive economic zones which may exist beyond territorial waters (Art. 58 of the Convention), and secondly, beyond territorial waters and on the high seas (Art. 87), it follows that any State which enjoys a right of access to ports for its ships also enjoys all the freedom necessary for maritime navigation. It may therefore be said that, if this right of access to the port is hindered by the laying of mines by another State, what is infringed is the freedom of communications and of maritime commerce. At all events, it is certain that interference with navigation in these areas prejudices both the sovereignty of the coastal State over its internal waters and the right of free access enjoyed by foreign ships.

[pp. 128-129] As the Court has indicated in paragraph 214 above, where the vessels of one State enjoy a right of access to ports of another State, if that right of access is hindered by the laying of mines, this constitutes an infringement of the freedom of communications and of maritime commerce. This is clearly the case here. It is not for the Court to pass upon the rights of States which are not parties to the case before it; but it is clear that interference with a right of access to the ports of Nicaragua is likely to have an adverse effect on Nicaragua's economy and its trading relations with any State whose vessels enjoy the right of access to its ports. Accordingly, the Court finds, in the context of the present proceedings between Nicaragua and the United States, that the laying of mines in or near Nicaraguan ports constituted an infringement, to Nicaragua's detriment, of the freedom of communications and of maritime commerce.

[p. 536 D.O. Jennings] The dispute concerning the responsibility of the United States for the unnotified mining of Nicaraguan ports, which apparently resulted in damage to a number of merchant ships, some under the flags of third States, seems to be a matter which does not arise out of the provisions of multilateral treaties, and is therefore within the jurisdiction of the Court. When this Court had to consider the laying of mines in a seaway in the Corfu Channel case, it did not find it necessary, in connection with the responsibility for damage caused by the mines, to invoke the provisions of the United Nations Charter, but based its decision on the obligation to notify the existence of the mines "for the benefit of shipping in general"; an obligation:

"based, not on the Hague Convention of 1907, No. VIII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of freedom of maritime communication; and every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States" (I.C.J. Reports 1949, p. 22).

This law would seem to apply a fortiori where a State lays mines in another State's ports or port approaches, and fails to notify shipping. Nor does this conclusion depend upon a construction of Article 51 of the Charter, for even supposing the United States were acting in legitimate self-defence, failure to notify shipping would still make the mine-laying unlawful.
No doubt that the Court is right, therefore, in finding that the United States has, in this matter, acted unlawfully.