| II. | Substantive International Law - Second Part |
| 2. | LAW OF THE SEA |
| 2.5. | Freedom of Navigation |
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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.
