Other sources of international law and hierarchy of sources military and paramilitary activities in and against nicaragua east timor case and legality of the threat or use of nuclear weapons

US ICJ Report 1986 General Principles of Law1.1.Factual BackgroundThis case concerning the military and paramilitary activities conducted by, or with the assistance of, the United States

DIPLOMATIC ACADEMY OF VIETNAM FACULTY OF INTERNATIONAL LAW

o0o ASSIGNMENT Other sources of international law and hierarchy of sources

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US); East Timor case (Portugal v Australia) and Legality of the threat or use of nuclear weapons

Subject: International Law of Treaties

Lecturer: Ngo Thi Trang Group 6 Student:

1 Nguyen Anh Duong

2 Nguyen Phuong Ha

3 Le Thu Ngan

4 Tran Minh Tuan

5 Tran Ha Trang

Student code:

LQT44C-061-1721 LQT44C-067-1721 LQT44C-075-1721 LQT44C-085-1721 LQT44C-087-1721

Hanoi, 12/2019

1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (ICJ Report 1986) (General Principles of Law) 1.1 Factual Background

This case concerning the military and paramilitary activities conducted by,

or with the assistance of, the United States against Nicaragua from 1981 to 1984 Due to a United States’ multilateral treaty reservation (the Vandenberf reservation), the Court could not rely on the United Nations Charter and was compelled to base its findings in relation to the use of force customary and general principles of international law

In July 1979, the Government of President Somoza was replaced by a government installed by Frente Sandinista de Liberacion Nacional (FSLN) Supporters of the former Somoza Government and former members of the National Guard opposed the new government The US – initially supportive of the new government – changed its attitude when, according to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador In April 1981 the United States stopped its aid to Nicaragua and in September 1981, according to Nicaragua, the United States “decided to plan and undertake activities directed against Nicaragua”

The armed activities against the new Government was carried out mainly by Fuerza Democratica Nicaragüense (FDN), which operated along the border with Honduras, and Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica Initial US support to these groups fighting against the Nicaraguan Government (called “contras”) was covert Later, the United States officially acknowledged its support (for example: In 1983 budgetary legislation enacted by the United States Congress made specific provision for

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funds to be used by United States intelligence agencies for supporting “directly or indirectly military or paramilitary operations in Nicaragua”)

Nicaragua also alleged that the United States is effectively in control of the contras, the United States devised their strategy and directed their tactics, and that the contras were paid for and directly controlled by the United States Nicaragua also alleged that some attacks against Nicaragua were carried out, directly, by the United States military – with the aim to overthrow the Government of Nicaragua Attacks against Nicaragua included the mining of Nicaraguan ports, and other attacks on ports, oil installations, and a naval base Nicaragua alleged that aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence, supply to the contras in the field, and to intimidate the population The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJ’s jurisdiction to decide the case The United States at the jurisdictional phase of the hearing, however, stated that it relied on an inherent right of collective self-defence guaranteed in Article 51 of the UN Charter when it provided “upon request proportionate and appropriate assistance…” to Costa Rica, Honduras, and El Salvador in response to Nicaragua’s acts of aggression against those countries

1.2 What the Court said about the general principles of law

When Article 53 of the Statute applies, the Court is bound to "satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim" of the party appearing is well founded in fact and law In the present case, the Court has had the benefit of both Parties pleading before it at the earlier stages of the procedure, those concerning the request for the indication of provisional measures and to the questions of jurisdiction and admissibility By its

Judgment of 26 November 1984, the Court found, inter alia, that it had jurisdiction

to entertain the case; it must however take steps to "satisfy itself" that the claims of the Applicant are "well founded in fact and law" The question of the application of Article 53 has been dealt with by the Court in a number of previous cases, referred

to above, and the Court does not therefore find it necessary to recapitulate the content of these decisions The reasoning adopted to dispose of the basic problems arising was essentially the same, although the words used may have differed slightly from case to case Certain points of principle may however be restated here A State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation ; the State which has chosen not to appear remains a party to the case, and is bound

by the eventual judgment in accordance with Article 59 of the Statute There is however no question of a judgment automatically in favour of the party appearing, since the Court is required, as mentioned above, to "satisfy itself" that that party's claim is well founded in fact and law

The use of the term "satisfy itself" implies that the Court must attain the same degree of certainty as in any other case that the claim of the party appearing

is sound in law, and, so far as the nature of the case permits, that the facts on which

it is based are supported by convincing evidence For the purpose of deciding whether the claim is well founded in law, the principle jura novit curia signifies that the Court is not solely dependent on the argument of the parties before it with respect to the applicable law ("Lotus", P.C.I.J., Series A, No 10, p 31), so that the absence of one party has less impact As the Court observed in the Fisheries Jurisdiction cases:

"The Court , as an international judicial organ, is deemed to take judicial notice of international law, and is therefore required in a case falling under Article

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53 of the Statute, as in any other case, to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court."

In the present case, the burden laid upon the Court is therefore somewhat lightened by the fact that the United States participated in the earlier phases of the case, when it submitted certain arguments on the law which have a bearing also on the merits

As to the facts of the case, in principle the Court is not bound to confine its consideration to the material formally submitted to it by the parties Nevertheless, the Court cannot by its own enquiries entirely make up for the absence of one of the Parties ; that absence, in a case of this kind involving extensive questions of fact, must necessarily limit the extent to which the Court is informed of the facts It would furthermore be an over-simplification to conclude that the only detrimental consequence of the absence of a party is the lack of opportunity to submit argument and evidence in support of its own case Proceedings before the Court call for vigilance by all The absent party also forfeits the opportunity to counter the factual allegations of its opponent It is of course for the party appearing to prove the allegations it makes, yet as the Court has held in Corfu Channel: "While Article 53 thus obliges the Court to consider the submissions of the Party which appears, it does not compel the Court to examine their accuracy in all their details; for this rnight in certain unopposed cases prove impossible in practice."

While these are the guiding principles, the experience of previous cases in which one party has decided not to appear shows that something more is involved Though formally absent from the proceedings, the party in question frequently submits to the Court letters and documents, in ways and by means not contemplated by the Rules The Court has thus to strike a balance On the one hand, it is valuable for the Court to know the views of both parties in whatever form those views may have been expressed Further, as the Court noted in Nuclear Test 1974, where one party is not appearing "it is especially incumbent upon the Court to satisfy itself that it is in possession of all the available facts" On the other hand, the Court has to emphasize that the equality of the parties to the dispute must remain the basic principle for the Court The intention of Article 53 was that in a case of non-appearance neither party should be placed at a disadvantage; therefore the party which declines to appear cannot be permitted to profit from its absence, since this would amount to placing the party appearing at a disadvantage The provisions of the Statute and Rules of Court concerning the presentation of pleadings and evidence are designed to secure a proper administration of justice, and a fair and equal opportunity for each party to comment on its opponent's contentions The treatment to be given by the Court to communications or material emanating from the absent party must be determined by the weight to be given to these different considerations, and is not susceptible of rigid definition in the form

of a precise general rule The vigilance which the Court can exercise when aided

by the presence of both parties to the proceedings has a counterpart in the special care it has to devote to the proper administration of justice in a case in which only one party is present

2 East Timor case (Portugal v Australia) (ICJ Report 1995) (Resolutions

of International Organisation)

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2.1 Factual Background

On 22 February 1991, Portugal filed an Application instituting proceedings against Australia concerning “certain activities of Australia with respect to East Timor”, in relation to the conclusion, on 11 December 1989, of a treaty between Australia and Indonesia which created a Zone of Co-operation in a maritime area between “the Indonesian Province of East Timor and Northern Australia” According to the Application, Australia had by its conduct failed to observe the obligation to respect the duties and powers of Portugal as the Administering Power

of East Timor and the right of the people of East Timor to self-determination In consequence, according to the Application, Australia had incurred international responsibility vis-à-vis the people of both East Timor and Portugal As the basis for the jurisdiction of the Court, the Application referred to the declarations by which the two States had accepted the compulsory jurisdiction of the Court under Article 36, paragraph 2, of its Statute In its Counter-Memorial, Australia raised questions concerning the jurisdiction of the Court and the admissibility of the Application

In resolution 1542 (XV) of 15 December 1960 the United Nations General Assembly recalled "differences of views concerning the status of certain territories under the administrations of Portugal and Spain and described by these two States as 'overseas provinces' of the metropolitan State concerned"; and it also stated that it considered that the territories under the administration of Portugal, which were listed therein (including "Timor and dependencies") were non-self-governing territories within the meaning of Chapter XI of the Charter Portugal, in the wake of its "Carnation Revolution", accepted this position in 1974

Following interna1 disturbances in East Timor, on 27 August 1975 the Portuguese civil and military authorities withdrew from the mainland of East Timor to the island of Atauro On 7 December 1975 the armed forces of Indonesia intervened in East Timor On 8 December 1975 the Portuguese authorities departed from the island of Atauro, and thus left East Timor altogether Since their departure, Indonesia has occupied the Territory, and the Parties acknowledge that the Territory has remained under the effective control of that State Asserting that

on 31 May 1976 the people of East Timor had requested Indonesia "to accept East Timor as an integral part of the Republic of Indonesia', on 17 July 1976 Indonesia enacted a law incorporating the Territory as part of its national territory

Following the intervention of the armed forces of Indonesia in the Territory and the withdrawal of the Portuguese authorities, the question of East Timor became the subject of two resolutions of the Security Council and of eight resolutions of the General Assembly, namely, Security Council resolutions 384 (1975) of 22 December 1975 and 389 (1976) of 22 April 1976, and General Assembly resolutions 3485 (XXX) of 12 December 1975, 31/53 of 1 December

1976, 32/34 of 28 November 1977, 33/39 of 13 December 1978, 34/40 of 21 November 1979, 35/27 of 11 November 1980, 36/50 of 24 November 1981 and 37/30 of 23 November 1982

Security Council resolution 384 (1975) of 22 December 1975 called upon

"all States to respect the territorial integrity of East Timor as well as the inalienable right of its people to self-determination"; called upon "the Government of Indonesia to withdraw without delay all its forces from the Territory"; and further called upon "the Government of Portugal as administering Power to co-operate fully with the United Nations so as to enable the people of East Timor to exercise freely their right to self-determination" Security Council resolution 389 (1976) of

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22 April 1976 adopted the same terms with regard to the right of the people of East Timor to self-determination; called upon "the Government of Indonesia to withdraw without further delay all its forces from the Territory"; and further called upon "all States and other parties concerned to co-operate fully with the United Nations to achieve a peaceful solution to the existing situation ." General Assembly resolution 3485 (XXX) of 12 December 1975 referred to Portugal "as the administering Power"; called upon it "to continue to make every effort to find a solution by peaceful means"; and "strongly deplore[d] the military intervention of the armed forces of Indonesia in Portuguese Timor" In resolution 31/53 of 1 December 1976, and again in resolution 32134 of 28 November 1977, the General Assembly rejected "the claim that East Timor has been incorporated into Indonesia, inasmuch as the people of the Territory have not been able to exercise freely their right to self-determination and independence" Security Council resolution 389 (1976) of 22 April 1976 and General Assembly resolutions 31/53 of

1 December 1976, 32/34 of 28 November 1977 and 33/39 of 13 December 1978 made no reference to Portugal as the administering Power Portugal is so described, however, in Security Council resolution 384 (1975) of 22 December

1975 and in the other resolutions of the General Assembly Also, those resolutions which did not specifically refer to Portugal as the administering Power recalled another resolution or other resolutions which so referred to it

No further resolutions on the question of East Timor have been passed by the Security Council since 1976 or by the General Assembly since 1982 However, the Assembly has maintained the item on its agenda since 1982, while deciding at each session, on the recommendation of its General Committee, to defer consideration of it until the following session East Timor also continues to be included in the list of non-self-governing territories within the meaning of Chapter

XI of the Charter; and the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples remains seised of the question of East Timor The Secretary-General of the United Nations is also engaged in a continuing effort, in consultation with all parties directly concerned, to achieve a comprehensive settlement of the problem

2.2 What the Court specifically said about the resolutions of the UN organs

Portugal presents an argument to challenge the applicability to the present case of the Court's jurisprudence in the case concerning Monetary Gold Removed from Rome in 1943 It argues that the principal matters on which its claims are based, namely the status of East Timor as a non-self-governing territory and its own capacity as the administering Power of the Territory, have already been decided by the General Assembly and the Security Council, acting within their proper spheres of competence; that in order to decide on Portugal's claims, the Court might well need to interpret those decisions but would not have to decide de novo on their content and must accordingly take them as "givens"; and that consequently the Court is not required in this case to pronounce on the question of the use of force by Indonesia in East Timor or upon the lawfulness of its presence

in the Territory Australia objects that the United Nations resolutions regarding East Timor do not say what Portugal claims they say; that the last resolution of the Security Council on East Timor goes back to 1976 and the last resolution of the General Assembly to 1982, and that Portugal takes no account of the passage of time and the developments that have taken place since then; and that the Security Council resolutions are not resolutions which are binding under Chapter VI1 of the Charter or otherwise and, moreover, that they are not framed in mandatory terms

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