† St. Louis Post-Dispatch, June 21, 1965. This remark is also recalled in a more pithy formulation: “Get the facts or the facts will get you.”

1 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27) [hereinafter cited as Nicaragua Merits].

2 Id. at 23–25, paras. 26–30.

3 Id. at 29–38, paras. 37–56; and at 92-97, paras. 172-82.

4 Id. at 92–97, paras. 172–82.

5 Id. at 98–106, paras. 187–201; and at 118–23, paras. 227–38.

6 Id. at 106–10, paras. 202–09; and at 123–26, paras. 239–45.

7 Id. at 110–11, paras. 210–11; and at 126–27, paras. 246–49.

8 Judge Schwebel’s dissenting opinion is composed of an opinion proper (id. at 259–394) and a “Factual Appendix” comprising 227 paragraphs (id. at 395–527).

9 Corfu Channel (UK v. Alb.) [Assessment of Amount of Compensation], 1949 ICJ Rep. 244 (Judgment of Dec: 15).

10 Corfu Channel (UK v. Alb.), Merits, 1949 ICJ Rep. 4 (Judgment of Apr. 9).

11 Department Statement, Dep’t St. Bull., No. 2096, March 1985, at 64, reprinted in 24 ILM 246 (1985). The position adopted by the United States was that it had withdrawn from the case for the variety of reasons set forth in the departmental statement, and that the United States “reserves its rights in respect of any decision by the Court regarding Nicaragua’s claims”— a statement that the Court was quick to rebut in no uncertain terms:

Nicaragua Merits, 1986 ICJ Rep. at 23–24, para. 27 (emphasis added).

12 Except, perhaps, in the difficult and challenging situation that confronted the Court in 1965 in the merits phase of the South West Africa Cases (South West Africa (Ethiopia v. S. Afr.; Liberia v. S. Afr.) (Second Phase), 1966 ICJ Rep. 6 (Judgment of July 18)). In that long litigation, however, the Court was not placed in a corner by any actions of the applicants as much as by the unwillingness or inability of half of its judges, inter alia, to square the obligations of the sacred trust (of the mandate for South West Africa) with the actual racial practices of South Africa as mandatory power. (The author served as counsel to Ethiopia and Liberia, the applicants, in the second phase of this litigation.)

13 1986 ICJ Rep. at 544 (Jennings, J., dissenting) (emphasis added); see also comments by the present author after the U.S. decision to withdraw from the Nicaragua case had been made, in Litigation Implications of the U.S. Withdrawal from the Nicaragua Case, 79 AJIL 992 (1985).

14 1986 ICJ Rep. at 528 (Jennings, J., dissenting) (emphasis added); see also Highet, supra note 13, at 1000:

15 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Declaration of Intervention, 1984 ICJ Rep. 215 (Order of Oct. 4); see also Separate Opinion of Judge Lachs to Nicaragua Merits, 1986 ICJ Rep. 158, 171.

16 Yet, in the actual situation, how could El Salvador have proceeded? If its intervention had been allowed, it would have found itself alone in court, without its “champion,” the United States (to borrow the felicitous word used by Judge Jennings in his dissent, 1986 ICJ Rep. at 545), and would have borne a unique and unacceptably uncomfortable responsibility for the outcome of the case.

17 See note 8 supra.

18 To this end, one cannot forget the record of the Permanent Court of International Justice, which in its shorter effective life span of 18 years dealt with many intricate questions of fact, although most were resolved by documentary pleading and proof and without taking actual evidence.

19 Article 36, paragraph 2 of the Statute; although this provision relates only to the type of matters that may be brought before the Court under the optional clause, it also serves as a useful indication of what kinds of matter can be considered as constituting “legal disputes” under Article 36, paragraph 1 of the Statute, which establishes the Court’s jurisdiction.

20 The last subparagraph also empowers the Court to determine “(d) the nature or extent of the reparation to be made for the breach of an international obligation” under subparagraph (c) of Article 36 (emphasis added).

21 What is “evidence”? In Judge Hudson’s succinct characterization: “In general it may be said that the term evidence covers real evidence, documentary proofs, and the testimony of witnesses and experts, advanced by a party either on its own motion or at the invitation of the Court.” Hudson, M., The Permanent Court of International Justice 1920–1942, at 565 (1943)Google Scholar.

22 Id.

23 Its subparagraph (a) deals with “the interpretation of a treaty” and subparagraph (b) with “any question of international law” (this latter perhaps including primarily questions of fact). For (c) and (d), see note 20 supra and accompanying text.

24 With one or two logical exceptions, which naturally flow from the overall context and premises of public international law, such as the lack of coercive powers to enforce evidentiary production.

25 As stated crisply by President Spender “in the course of exchanges with counsel” in the South West Africa Cases: “the Court is quite able to evaluate evidence, and if there is no value in the evidence then there will be no value given to it.” 1965 ICJ Pleadings (10 South West Africa) 163, as quoted in Sandifer, D., Evidence before International Tribunals 464 Google Scholar (rev. ed. 1975).

26 Still, parties to a special agreement may disagree vehemently and in the course of the proceedings about the appropriate meaning or scope of that agreement. See Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, 1982 ICJ Rep. 18 (Judgment of Feb. 24) [hereinafter cited as Tunisia/Libya], in which there was extensive disagreement between the parties over whether the language of the special agreement (originally written in Arabic) meant that the Court was supposed in effect to indicate the delimitation line or merely to enunciate general principles. (The author served as counsel to Libya in this case.) See also the Borchgrave case in the Permanent Court, where one party to a special agreement actually filed preliminary objections to the jurisdiction of the Court. Borchgrave (Belg./Sp.) (Preliminary Objections), 1937 PCIJ, ser. A/B, No. 72 (Judgment of Nov. 6).

27 See, e.g., Judge Schwebel’s dissenting opinion in Nicaragua Merits, 1986 ICJ Rep. at 321–22, para. 132:

28 See M. Hudson, supra note 21, §119, at 128 (1943). See also Sandifer, who writes that the framers of the Statute of the PCIJ and ICJ “followed the existing practice with respect to provisions concerning evidence in agreements establishing ad hoc tribunals and stated only broad principles in the Statute, leaving the elaboration of specific rules to the Court.” D. Sandifer, supra note 25, at 39.

29 In the absence of specific agreement thereto by the parties (in, e.g., a bilateral arbitration or claims settlement tribunal), these obviously exclude methods of enforcing the writ of the Court that could ostensibly conflict with local sovereignty, such as the power to issue enforceable subpoenas or to require documentary production.

30 2 Rosenne, S., The Law and Practice of the International Court 580 (1965)Google Scholar.

31 In these conditions it is necessary to start from the principle already developed in the jurisprudence of the International Court of Justice that the Court is free to appreciate the evidence and the allegations of the Parties. The Parties are thus in a large measure free to present any evidence that they consider necessary or opportune.

D. Sandifer, supra note 25, at 464 (quoting the Swiss Memorial in the Interhandel case) (emphasis added).

32 D. Sandifer, supra note 25, at 184–85. Professor Sandifer has summarized the picture overall in the following words: “Both Courts have in fact been sparing in the attention and time devoted to evidence. Rather than break new trails or generate new precedents, their practice has proceeded largely within the confines of the system already marked out by ad hoc tribunals.” Id. at 463.

33 1922 PCIJ, ser. D, No. 2, at 210, cited in id. at 184 n.26. Eventually, several qualifications to this principle evolved, notably in connection with late or improper submission of documentary evidence without the consent of the other party. See, e.g., note 39 infra.

34 Lalive, Quelques Remarques sur la Preuve devant la Cour Permanente et la Cour Internationale de Justice, 7 Annuaire Suisse de Droit International 77, 102 (1950), cited in (and translated by) D. Sandifer, supra note 25, at 185 n.26.

35 The substantive provisions of the Statute relating to evidentiary matters begin with Article 30, paragraph 2, which enables the Court to adopt rules that “may provide for assessors to sit with the Court or with any of its chambers, without the right to vote.” Statute of the International Court of Justice, ICJ Acts and Documents, No. 4, at 60–89 (1978) (French & English). This is implemented by Article 9, paragraph 1 of the Rules, which provides: “The Court may, either propria motu or upon a request made not later than the closure of the written proceedings, decide, for the purpose of a contentious case or request for advisory opinion, to appoint assessors to sit with it without the right to vote.” For the Rules of Court adopted on Apr. 14, 1978, see id. at 92–161 (French & English), reprinted in 73 AJIL 748 (1979). As Rosenne commented in 1983: “During the political and academic discussions on the role of the Court that have taken place since 1970, attention became focused on the problem of assessors, notwithstanding the fact that no use has ever been made of this faculty.” S. Rosenne, Procedure in the International Court 31 (1983); see discussion, id. at 30–33.

36 “The Court shall make orders for the conduct of the case, shall decide the form and time in which each party must conclude its arguments, and make all arrangements connected with the taking of evidence.” See S. Rosenne, supra note 35, at 270–71; M. Hudson, supra note 21, §198, at 202. The breadth and flexibility of this provision has enabled the Court to act with a surprising degree of responsiveness to resolve various questions of fact presented to it.

37 Article 49 of the Statute provides: “The Court may, even before the hearing begins, call upon the agents to produce any document or to supply any explanations. Formal note shall be taken of any refusal.”

38 Statute, Art. 50.

39 Article 52 of the Statute states: “After the Court has received the proofs and evidence within the time specified for the purpose, it may refuse to accept any further oral or written evidence that one party may desire to present unless the other side consents.”

40 A provision related indirectly to the inspection possibilities of Article 44 of the Statute and Article 66 of the Rules. Rosenne notes that “[t]here is no known instance of this procedure having been followed in the present Court.” S. Rosenne, supra note 35, at 136. This unused flexibility may go unnoticed by most practitioners or commentators.

41 One authority has written:

Alford, Fact Finding by the World Court, 4 Vill. L. Rev. 37, 53 (1958). His conclusion in this context is that “lacking the necessary power to compel the production of the evidence it may need, the Court tends to rely heavily upon the evidence submitted without positive efforts to police the truth of the facts.” Id.

42 As will be seen below, whether or not the Court “resolves” those issues of fact in terms of basing its decision on any factual determination, it must nevertheless deal with them, one way or another.

43 Tunisia/Libya, 1982 ICJ Rep. 18; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246 (Judgment of Oct. 12) [hereinafter cited as Gulf of Maine]; Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 ICJ Rep. 13 (Judgment of June 3) [hereinafter cited as Libya/Malta]; and Nicaragua Merits, 1986 ICJ Rep. 14.

44 Article 30, paragraph 1 of the Statute states: “The Court shall frame rules for carrying out its functions. In particular, it shall lay down rules of procedure.” The 1978 Rules, supra note 35, are a continuation of the general improvements made since the first Rules of Court were adopted in 1922. See M. Hudson, supra note 21, §255, at 271.

45 Consistent with the powers conveyed upon the Court under Article 30, paragraph 1 of the Statute, recapitulated in Article 58 of the Rules, which provides: “ 1 . The Court shall determine whether the parties should present their arguments before or after the production of the evidence; the parties shall, however, retain the right to comment on the evidence given.” This provision became of critical substantive importance in the second phase of the South West Africa Cases, as it was then that the President on behalf of the Court ruled that the parties should present their legal arguments separately from their “factual” arguments, which bifurcated the case in a fundamentally significant manner. See Minutes of Meeting of 12 March 1965, File No. 35765, Dossier E XXXJII/2/10/1: “The President: ‘. . . A view expressed [by the Court] was that there are in the pleadings substantive and separate questions of law, as distinct from pure questions of fact or mixed questions of fact and law, which might with convenience be argued by counsel separately from the facts.’”

46 Article 58 of the Rules also provides:

See S. Rosenne, supra note 35, at 127–28, who, noting that the words “the method of handling the evidence and of examining any witnesses and experts” were added in 1972, states: “In the four contentious cases before the present Court in which witnesses and witness-experts called by a party have been heard, a procedure suited to the circumstances of each case was adopted. The current wording consolidates that practice and flexibility.” Id. at 128.

47 Cf. Rules, supra note 35, Art. 62, para. 2 and Art. 68; and see commentary thereon, S. Rosenne, supra note 35, at 135, 141.

48 Article 44, paragraph 1 states: “For the service of all notices upon persons other than the agents, counsel, and advocates, the Court shall apply direct to the government of the State upon whose territory the notice has to be served.”

49 Diversion of Water from the River Meuse, 1937 PCIJ, ser. A/B, No. 70, 4 M. Hudson, World Court Reports 178, 182 (1943) [hereinafter cited as Hudson Reports]. See D. Sandifer, supra note 25, at 345; Hudson, Visits by International Tribunals to Places Concerned in Proceedings, 31 AJIL 696, 697 (1937); M. Hudson, supra note 21, at 566-67.

50 In the South West Africa Cases; see discussion in D. Sandifer, supra note 25, at 345-48. This implication was confirmed by the Court in a new provision of the revised Rules of 1978, which specifies:

Rules, supra note 35, Art. 66; see S. Rosenne, supra note 35, at 139.

51 Article 50 provides: “The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.” See also Nicaragua Merits, 1986 ICJ Rep. at 40, para. 61, and Judge Schwebel’s dissenting opinion, id. at 321–22, para. 132.

52 See Chorzów Factory case (Ger. v. Pol.) (Claim for Indemnity), 1928 PCIJ, ser. A, No. 17 (Judgment No. 13 of Sept. 13); (Expert Enquiry), id. (Order of Sept. 13); see further Corfu Channel, 1949 ICJ Rep. 4; and Gulf of Maine, 1984 ICJ Rep. 246.

53 Under Article 51 of the Statute, “During the hearing any relevant questions are to be put to the witnesses and experts under the conditions laid down by the Court in the rules of procedure referred to in Article 30”; and Article 65 of the 1978 Rules, supra note 35, provides: “Witnesses and experts shall be examined by the agents, counsel or advocates of the parties under the control of the President. Questions may be put to them by the President and by the judges.” Rosenne comments that “the right to put questions to witnesses and experts is granted to the President and to each judge without restrictions corresponding to those found in Article 61 regarding the putting of questions to the parties.” S. Rosenne, supra note 35, at 138.

54 Rules, supra note 35, Art. 62, para. 1. This provides for a relatively high degree of autonomy for the Court’s processes, in a manner analogous to the power of the Court under Article 61, paragraph 1 to “indicate [at any time prior to or during the hearing] any points or issues to which it would like the parties specially to address themselves, or on which it considers that there has been sufficient argument.” See S. Rosenne, supra note 35, at 133. Rosenne’s comment on the reworded language of Article 62, paragraph 1, however, suggests that it “seems to open the way to the Court to make its own enquiries on a given matter. There are signs that the Court may take ‘judicial notice’ of proceedings in competent United Nations organs and perhaps of other statements that are in the public domain.” Id, at 135. Cf. the treatment accorded to public news reports that remained uncontroverted by respondent government in United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 10, para. 13(Judgment of May 24); and the more extensive treatment in Nicaragua Merits, 1986 ICJ Rep. at 40–41, 53, 65–66 and 80, paras. 63, 92, 117 and 146.

55 See S. Rosenne, supra note 35, at 140.

56 The final substantive specification of powers of the Court to obtain information and evidence is contained in Article 69 of the Rules, which implements Article 34, paragraphs 2 and 3 of the 1945 Statute. Paragraph 2 of Article 34 is more relevant to the present discussion: “The Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative.” See S. Rosenne, supra note 35, at 142–44; see also id. at 261–62. This provision therefore goes beyond mere advice or participation in relation to advisory proceedings.

57 Article 50 requires that “copies of any relevant documents adduced in support of the contentions contained in the pleading” (or extracts, as required) be “annexed to the original of every pleading.” See S. Rosenne, supra note 35, at 114 n.1:

58 Rules, Article 56 (paragraph 1) limits the ability of parties to introduce documentary evidence after the close of the written proceedings without the consent of the other party; or (paragraph 2) failing such consent, with the Court’s authorization; and contains other related provisions. See S. Rosenne, supra note 35, at 124–25. Article 57 of the Rules requires submission of information “regarding any evidence which [each party] intends to produce or which it intends to request the Court to obtain” (emphasis added). Article 57 also requires “a list of surnames, first names, nationalities, descriptions and places of residence of the witnesses and experts whom the party intends to call, with indication in general terms of the point or points to which their evidence will be directed.” Rosenne, supra, at 126, points out that the first application of this rule in its new form was in Tunisia/Libya, 1982 ICJ Rep. 18.

59 Cf. the use by the Belgian agent in the Meuse case of a map, a bas-relief and models of canal locks as “part of the agent’s pleadings.” M. Hudson, supra note 21, §516, at 566.

60 Customs Régime between Germany and Austria, 1931 PCIJ, ser. A/B, No. 41.

61 Lauterpacht, H., The Development of International Law by the International Court 48 (1958)Google Scholar.

62 In the Peter Pazmany University Case [1933 PCIJ, ser. A/B, No. 61] the Court did not have most of the documents of the written proceedings of the arbitral tribunal which made the decision being reviewed. In the Lotus Case [1927 PCIJ, ser. A, No. 10] the Court did not have the Turkish judicial decision that gave rise to the dispute. In the case of Minority Schools in Albania [1935 PCIJ, ser. A/B, No. 64] the decision was rendered based upon many assumptions concerning the Albanian education situation. But if the Court can be developed into a more vital force as part of the United Nations structure, which is a major assumption, attention to its fact-finding resources should receive a high priority.

Alford, supra note 41, at 91.

63 Id.

64 On the use of assessors, which has never been invoked, see note 35 supra. Article 50 of the Statute limits the role of Court-appointed experts to “carrying out an enquiry or giving an expert opinion.” Since the Court is not bound to accept any conclusions offered to it by assessors or experts, the Court itself retains the prime responsibility for factual determinations; it thus appears to be a court and a jury panel in one. The proper analogy is therefore to a panel of trial judges sitting (without a jury) on a case of mixed law and fact, who are required to make findings of fact as well as law to support their decision.

65 The issue of mens rea or intent became a hot one, however, during the debates in the South West Africa Cases leading to the problematic amendment of applicants’ submissions to eliminate the assertion of “deliberate oppression” of the inhabitants of South West Africa. South Africa took the position that as long as such an allegation remained part of the applicants’ case, South Africa must be entitled to prove (by lengthy and detailed evidence of its officials and representatives) that its intent or motives were not to oppress the inhabitants. Applicants, in response, took the position that mens rea or intent is presumed in the case of governmental actions in the sense that governments must be presumed to “intend” the natural results of actions they have undertaken. Contrast the disposition of this issue by the Court a few years later, in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16, 57, para. 129 (Advisory Opinion of June 21): “the question of intent or governmental discretion is not relevant; nor is it necessary to investigate or determine the effects of [apartheid]. . . upon the welfare of the inhabitants.”

66 This means that the parties to disputes before the Court present and state facts in their “Cases” and “Counter-Cases,” or “Memorials” and “Counter-Memorials,” prepared and submitted in the absence of any stringent formal rules or limitations on form and length. See the original formulation in Rules, Arts. 39 and 40, reprinted in 1 Hudson Reports, supra note 49, at 70 (1934).

67 Thus did Judge Anzilotti refer to witnesses and experts as “living documents.” 1 Hudson Reports, supra note 49, at 287.

68 D. Sandifer, supra note 25, at 198. However, rather than arguing for a direct relationship between the prevalence of documentary evidence in international tribunals and the attitudes of civil procedural law, Sandifer suggests that

Id. at 200.

69 In a nutshell: if they related to industrial or mining operations, they did not fall within the category of being merely large rural estates but fell under different provisions of the applicable Geneva Convention. The question of subsidence of superjacent land over mining operations was therefore considered in great detail, as was the suitability of woodland for producing pit props for mining excavations (as well as fodder for pit ponies).

70 Furthermore, a document [a letter] filed by the Agent of the Applicant . . . , which document has not been disputed, decisively establishes the fact that the purpose served by the estate is as the Court understands it. . . . It appears therefore that the object of the purchase of the Mokre estate was to avoid a speculation which would injure the interests of the concern.

Certain German Interests in Polish Upper Silesia (Ger. v. Pol.) (Merits), 1926 PCIJ, ser. A, No. 7, at 61 (Judgment of May 25).

It should moreover be noted that the Applicant has stated that the timbered portion is utilized for the needs of the mine (pit props) and that this statement has not been disputed by the Respondent. The Court therefore regards it as proved, for the purposes of the suit, that the Baranowice estate fulfils the conditions of Article 9 . . . owing to the exploitation of the timber.

Id. at 63. The Judgment continued as follows: “The same conclusion is indicated as regards the untimbered portion, because this land, which is devoted to agriculture, supplies foodstuffs for the workers and hay, straw, etc. for the pit ponies.” Id.

71 Nomination of the Netherlands Workers’ Delegate to the Third Session of the International Labour Conference, 1922 PCIJ, ser. B, No. 1 (Advisory Opinion of July 31).

72 Id. at 11–13 (see ser. C, No. 1, at 345–459); 1 Hudson Reports, supra note 49, at 116. In the second advisory proceeding brought before the Court, Competence of the International Labour Organisation with Respect to Agricultural Labor, 1922 PCIJ, ser. B, No. 2 (Advisory Opinion of Aug. 12), the documentary dossier included six letters, two notes and one telegram. Id. at 11–13; 1 Hudson Reports, supra, at 124–25. In the third case, Competence of the International Labour Organisation with Respect to Agricultural Production, the documentary dossier included five letters and one extract from minutes. 1922 PCIJ, ser. B, Nos. 2 and 3, at 51; 1 Hudson Reports, supra, at 138–39. By the next year, in Nationality Decrees Issued in Tunis and Morocco (French Zone) on November 8, 1921, 1923 PCIJ, ser. B, No. 4 (Advisory Opinion of Feb. 7), the dossier was expressed in terms of being “supplementary documents” and “two series of documents.” Id. at 10; 1 Hudson Reports, supra, at 147.

73 European Commission of the Danube, 1927 PCIJ, ser. B, No. 14 (Advisory Opinion of Dec. 8). The Court appended an annex consisting of (1) more than 34 documents transmitted by the League Secretariat and, “Transmitted in the Name of the Interested Governments or Filed by their Representatives,” 11 international agreements, 8 extracts from protocols and minutes of conferences, 54 items of diplomatic correspondence and 9 maps; (2) 37 Protocols of the Commission submitted by the European Commission of the Danube; and (3) documents prepared by the Registry, including 31 “treaties, acts and regulations,” 68 protocols and minutes of conferences and international commissions, and 14 items of diplomatic correspondence.

74 See Annex III (Documents Submitted by the Parties During Proceedings), 1926 PCIJ, ser. A, No. 7, at 98–107, reproduced in 1 Hudson Reports, supra note 49, at 580–87.

75 Corfu Channel, Merits, 1949 ICJ Rep. at 132–41 (listed in Annex I).

76 See International Status of South-West Africa, 1950 ICJ Rep. 128, 193–219 (Advisory Opinion of July 11).

77 Judge Hudson observed, in connection with an early and significant decision of the Permanent Court, that “[i]n general, the Court has refrained from requiring specific types of proof for particular matters; thus in the German Interests in Upper Silesia Case it rejected a contention that the acquisition of Czechoslovak nationality could be established only by a certificate from the Czechoslovak Government.” M. Hudson, supra note 21, at 565 (citing 1926 PCIJ, ser. A, No. 7, at 73).

78 2 S. Rosenne, supra note 30, at 582.

79 Id, He continues:

Id. at 581–82.

80 Delimitation of the Czechoslovak-Polish Frontier (Question of Jaworzina), 1923 PCIJ, ser. B, No. 8 (Advisory Opinion of Dec. 6); Monastery of Saint-Naoum (Albanian Frontier), 1924 PCIJ, ser. B, No. 9 (Advisory Opinion of Sept. 4); Legal Status of Eastern Greenland (Den. v. Nor.), 1933 PCIJ, ser. A/B, No. 53 (Judgment of Apr. 5); Sovereignty over Certain Frontier Land (Belg./Neth.), 1959 ICJ Rep. 209 (Judgment of June 20) [hereinafter cited as Frontier Land]; Minquiers and Ecrehos (Fr./UK), 1953 ICJ Rep. 47 (Judgment of Nov. 17); and Temple of Preah Vihear (Cambodia v. Thailand) (Preliminary Objections), 1961 ICJ Rep. 17 (Judgment of May 26); (Merits), 1962 ICJ Rep. 6 (Judgment of June 15).

81 One commentator has observed that “official maps have played a major part in support or as proof of the exercise of sovereignty over a disputed area or as evidence of a litigant’s state of mind,” adding that “maps may be regarded as strong evidence of what they purport to portray. They may be termed and treated as admissions, considered as binding, and said to possess a force of their own.” Weissberg, Maps as Evidence in International Boundary Disputes: A Reappraisal, 57 AJIL 781, 803 (1963). For examples taken from the Court’s practice, see id.

82 Thus, for example, in Tunisia/Libya, Tunisia produced impressionistic maps on a very large scale, including bathymetric contours on a scale of 10 meters (which created the impression that a relatively flat area of the ocean floor was made up of precipices and crevasses), and Libya produced computerized models and block diagrams of the same area to precisely the contrary effect: i.e., to show the relative absence of significant geomorphological features. In Gulf of Maine, the myriad of maps and charts included the most detailed and recondite illustrations of the feeding and schooling habits of various species of fish. In Libya/Malta, the Court was confronted by sea-surface cartography by the party claiming equidistance (Malta) and by geomorphological charts, diagrams and models intended to demonstrate the existence of a fundamental discontinuity on the sea bottom by the party urging attention to geological and geomorphological natural prolongation (Libya). (The writer served as counsel to Libya in this case.)

83 Although in the southern sector of the delimitation in Tunisia/Libya, this principle was advanced regarding the extent of the early Italian administration of Libya and the history of sponge-fisheries regulation by the Bey of Tunis—but as demonstrative aids.

84 See Weissberg, supra note 81, for a useful review of the use of maps in the International Court prior to these three cases.

85 Thus, in Tunisia/Libya the decisively important fact for the first segment of the delimitation was the carefully conditioned mutual acceptance that the Court found of a status quo along the 26° line where the eastern edge of the Tunisian offshore petroleum concessions abutted the western edge of the Libyan concessions. 1982 ICJ Rep. at 83–84, paras. 117–18. Note also that Tunisia subsequently sought unsuccessfully to revise the delimitation by asserting that the de facto line had not correctly represented a joint abutting of concession lines and that no such congruence (and hence no such understanding) had existed. See Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libya), 1985 ICJ Rep. 192 (Judgment of Dec. 10).

86 1933 PCIJ, ser. A/B, No. 53.

87 Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116 (Judgment of Dec. 18). The historical facts laid before the Court were treated id. at 124–25; geographical facts at 127–28 and 140–43; sociology at 128; fisheries themselves at 127–28; economics at 133; and history in general at 133–38.

88 1953 ICJ Rep. 47.

89 1961 ICJ Rep. 17; 1962 ICJ Rep. 6.

90 Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), 1952 ICJ Rep. 176 (Judgment of Aug. 27).

91 Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain) (New Application), 1970 ICJ Rep. 3 (Judgment of Feb. 5). “In the course of the proceedings, the Parties have submitted a great amount of documentary and other evidence intended to substantiate their respective submissions. Of this evidence the Court has taken cognizance.” Id. at 50–51, para. 102. See generally id. at 33–50.

92 Nicaragua Merits, 1986 ICJ Rep. at 40, para. 62 (emphasis added).

93 This comment was accurate as of the date of its publication (1983), although (as discussed below) it has now been superseded by evidentiary developments in the Libya/Malta, Gulf of Maine and Nicaragua (Merits) cases.

94 S. Rosenne, supra note 35, at 127–28.

95 Certain German Interests in Polish Upper Silesia (Ger. v. Pol.) (Jurisdiction), 1925 PCIJ, ser. A, No. 6 (Judgment of Aug. 25); (Merits), 1926 PCIJ, ser. A, No. 7 (Judgment of May 25).

96 One witness was not present in court in order to approve the record and “subsequently the testimony of this witness was set aside.” M. Hudson, supra note 21, at 570 (referring to 1926 PCIJ, ser. E, No. 3, at 211).

97 1926 PCIJ, ser. C, No. 11, vol. 1 at 25–34; see M. Hudson, supra note 21, §518, at 570. The right to comment on the testimony is preserved under Article 48 of the present Rules; it can be a highly important component of a party’s case. (As a prime example of this: applicants’ extensive and detailed comments on the massive South African evidence would probably have been highly important in the South West Africa Cases (Second Phase), had the Court ever reached the merits.)

98 For example, the Court recognized that the testimony of the expert witnesses concerning the relationship of the estates at the surface of the land to the subterranean mine workings supported “the justice of the objections taken by the Applicant” and established the purposes for which surface land had been purchased by the “mining undertaking.” 1926 PCIJ, ser. A, No. 7, at 54–55. See further the documentary evidence of a letter, id. at 61. In addition, Poland had contended “that ownership of the surface is not now absolutely necessary [to avoid subsidence] . . . because modern technical knowledge has introduced processes which enable any damage to the surface to be avoided.” Id. at 51. The Court heard technical evidence addressed to this question and made a series of findings, both technical and general. Id. at 52–53.

99 In the earlier stages of these German-Polish litigations of the 1920s, the Court had specifically invited “the Parties to furnish, at a public hearing, by whatever means they may think fit, further information regarding the points reserved by the Court for this purpose.” Order of Court of Mar. 22, 1926 PCIJ, ser. A, No. 7, at 96–97.

100 See Chorzów Factory, Order of Sept. 13, 1928 PCIJ, ser. A, No. 17, at 99–103. In support of its unsuccessful application for interim measures of protection in 1927, the German Government had introduced “the expert opinion of the American firm Lybrand, Ross Bros, and Montgomery . . . [which had] carefully examined the books of the Bayerische and arrive[d] at a conclusion of 65 million Reichsmarks.” Request for Interim Protection by the German Government, 1927 PCIJ, ser. A, No. 12, at 7. This inquiry was discussed in the body of the Court’s main opinion as being intended to “obtain further enlightenment in the matter” of the damage and indemnity. Indemnity, 1928 PCIJ, ser. A, No. 17, at 4, 51–57. The Court appointed chemical engineers (two Norwegian and one Swiss) as its experts for this purpose, 1928 PCIJ, ser. C, No. 16–11, at 12–13 (Order by the President of Oct. 16); and it accepted the nomination of assessors by the parties, id. at 13–14 (Order by the President of Nov. 14). However, a month later the case was settled, the German application was withdrawn and the expert inquiry was therefore terminated, 1928 PCIJ, ser. A, Nos. 18/19, at 14–15 (Order by the President of Dec. 15), together with the proceedings, 1929 PCIJ, ser. A, Nos. 18/19, at 11–13 (Order of May 25).

101 See Competence of the International Labour Organisation to Regulate, Incidentally, the Personal Work of the Employer, 1926 PCIJ, ser. B, No. 13 (Advisory Opinion of July 23); and ser. E, No. 3, at 213, cited in M. Hudson, supra note 21, §518, at 570 & n.76. Judge Hudson also alludes to the incident in Monastery of Saint-Naoum in which a potential witness arrived at The Hague too late to give his evidence and was thus excluded. “[L]ikewise, letters sent by States’ representatives were returned to them.” Id., §520, at 572.

102 D. Sandifer, supra note 25, at 334; Free Zones of Upper Savoy and the District of Gex (Fr./Switz.), 1932 PCIJ, ser. A/B, No. 46, at 162 (Judgment of June 7) [hereinafter cited as Free Zones]. Here the Special Agreement actually provided for a request to the Court “by either Party to delegate one or three of its members for the purpose of conducting investigations on the spot and of hearing the evidence of any interested persons.” 2 Hudson Reports, supra note 49, at 452 (1935).

103 Oscar Chinn (Belg./Gr. Brit.), 1934 PCIJ, ser. A/B, No. 63, at 84, 88 (Judgment of Dec. 12); 1934 PCIJ, ser. C, No. 75, at 214–20, 239–40; D. Sandifer, supra note 25, at 334.

104 In Tunisia/Libya Libya called one expert, a geomorphologist, who was cross-examined very briefly by Tunisian counsel. However, the parties had brought “experts” (three for Tunisia and two for Libya) into the role of pleading technical portions of the case in argument, who were thus considered part of each delegation and not independent “experts” within the meaning of the Rules (hence not subject to cross-examination). See 1982 ICJ Rep. at 25, paras. 10–11. In Gulf of Maine Canada called one expert, who was examined and cross-examined. 1984 ICJ Rep. at 9. In Libya/Malta three geological experts were called by Libya and two by Malta, and three of them were extensively cross-examined. 1985 ICJ Rep. at 17–18, para. 9.

105 See Tunisia/Libya, 1982 ICJ Rep. at 57, para. 66.

106 See Gulf of Maine, 1984 ICJ Rep. at 273–77, paras. 44–55, especially 45 and 55. The United States had called an expert, id. at 256, para. 9, but his testimony was, in essence, disregarded.

107 See Libya/Malta, 1985 ICJ Rep. at 35–36, paras. 39 and 40; see also para. 41, at 36–37.

108 Ten witnesses were called and heard: seven by the United Kingdom and three by Albania. Albania also designated two experts. This took 3 weeks. Corfu Channel, 1949 ICJ Rep. at 7–8.

109 See generally D. Sandifer, supra note 25, at 290–91; G. White, The Use of Experts by International Tribunals 130–31 (1965).

110 These were: Cmdr. Sworder, RNVR (witness and expert); former Lt.-Cmdr. Kovacic of the Yugoslav Navy (witness); Capt. Selby, RN (witness); Cmdr. Paul, RN (witness); Lt.-Cmdr. Lankester, RN (witness and expert); Cmdr. Mestre, French Navy (witness); and Cmdr. Whitford, RN (witness and expert). 1949 ICJ Rep. at 8. The Court indicated that it had “heard the evidence of the witnesses and experts called by each of the Parties in reply to questions put to them in examination and cross-examination on behalf of the Parties, and by the President on behalf of the Court or by a Member of the Court.” Id. at 7.

111 Albania called Capt. Shtino and First Capt. Polena, Albanian Army, and the former Vice-President of the Executive Committee of Saranda as witnesses, and a Bulgarian Navy Captain and a French Rear Admiral as experts. Id. at 8.

112 One commentator has observed: “As a result of the Corfu Channel Case the Court appears to have developed rudimentary but sound techniques for hearing testimony by witnesses. The efficiency of examination of witnesses and the care in recording testimony is in marked contrast to the first efforts in German Interests in Upper Silesia.” Alford, supra note 41, at 73–74.

113 1949 ICJ Rep. at 17; see also D. Sandifer, supra note 25, at 206.

114 1949 ICJ Rep. at 8–9.

115 Concerning the statements attributed to third parties by Lt. -Cmdr. Kovacic, which “can be regarded only as allegations falling short of conclusive evidence. A charge of such exceptional gravity against a State would require a degree of certainty that has not been reached here.” Id. at 17; see also D. Sandifer, supra note 25, at 139–40.

116 This justification . . . was presented first as a new and special application of the theory of intervention, by means of which the State intervening would secure possession of evidence in the territory of another State, in order to submit it to an international tribunal and thus facilitate its task.

The Court cannot accept such a line of defence.

1949 ICJ Rep. at 34–35; see also D. Sandifer, supra note 25, at 114–15, 139–40.

117 1949 ICJ Rep. at 9. The experts were three naval officers from Norway, Sweden and Holland. They proceeded immediately to the Corfu Strait and filed their response only 3 weeks after their original appointment. For the Court’s questions and the experts’ answers, see Ann. 2 to the Judgment, id. at 142–51 (Experts’ Report of Jan. 8, 1949). This report was supplemented by a second report requested at the public sitting of Jan. 17, 1949; two of the three experts returned to the area of Sibenik in Yugoslavia and Saranda in Albania to answer further questions, which they did in their report filed one month later. Id. at 152–62.

118 Commenting on one issue discussed by the experts, the Court stated: “The Court cannot fail to give great weight to the opinion of the Experts which examined the locality in a manner giving every guarantee of correct and impartial information.” Id. at 21.

119 A Rear Admiral and the Director of Naval Construction of the Royal Netherlands Navy. Assessment of Amount of Compensation, 1949 ICJ Rep. 237, 238 (Order of Nov. 19) and 244, 247–50 (Judgment of Dec. 15).

120 The Experts’ Report of Dec. 1, 1949 was submitted as Annex 2 to the Judgment. 1949 ICJ Rep. at 258–60. Upon this report were based questions by Members of the Court, to which the experts replied at a hearing 2 days later. Ann. 3, id. at 261–65. (The questions concerned details of valuation, replacement value, value of stores and equipment, scrap value and depreciation.)

121 The Cambodian Government called a senior civil servant as a witness; the Thai Government called the Dean of the International Training Center for Aerial Survey in Delft and the head of its Geological Section as experts, and an engineer at the same institution as a witness and expert. 1962 ICJ Rep. at 9. In addition, the Court viewed in private “a film of the place in dispute filed by Cambodia.” Id.

122 Id. at 32–34.

123 “Given the grounds on which the Court bases its decision,” the Court stated, “it becomes unnecessary to consider whether, at Preah Vihear, the line as mapped does in fact correspond to the true watershed line in this vicinity, or did so correspond in 1904-1908, or, if not, how the watershed line in fact runs.” Id. at 35. See further the description in D. Sandifer, supra note 25, at 35–36 and 338–40. Indeed, the major evidentiary significance of the Temple case remains its emphatic reliance on maps as evidence in relation to written treaty provisions describing the same features—a proposition with which there was nevertheless strong dissent. See Dissenting Opinions of Judges Sir Percy Spender and Moreno Quintana, 1962 ICJ Rep. at 101, 133–34, and 67, 70; and cf. the rule of Article 29 of the Treaty of Versailles (text to prevail over maps) and discussion generally in D. Sandifer, supra, at 232–33 and 237–38; see also Frontier Land, 1959 ICJ Rep. at 220; see generally Weissberg, supra note 81.

124 See Rules, Art. 57 et seq. See also D. Sandifer, supra note 25, at 291–92, 309–12, and especially 340–41; and the foreword by Judge Philip Jessup, stating: “Most of the evidence received by the Court is documentary; the abundance of oral testimony by experts and witnesses for the Respondent in the South-West Africa Cases led to some confusion and complications.” Id. at x.

125 This ritual incantation preceded the testimony of each “witness-expert.” The witnesses-experts made up an extraordinarily variegated company: the Commissioner-General for the Northern Sotho; a professor of social philosophy at New York University; a professor of social and cultural anthropology at the University of Port Elizabeth; a professor of geography at the University of California; the editor of Die Burger in Cape Town; the Vice-Chairman of the Synod of the Dutch Reformed Church of South Africa and the Vice-Chancellor of the University of Stellenbosch; the head of the Department of Economics of the University of South Africa; the Director of Bantu Development in South Africa; the Deputy-Secretary of the Department of “Bantu Education”; the Rector of the University of Pretoria; the editor of the Allgemeine Zeitung in Windhoek; an American Brigadier and Chief Historian of the U.S. Army; a former professor of international relations at the University of London; and the Director of International Political Studies at the Hoover Institution of Stanford University.

126 More properly, the Court would have had to determine whether there did “in fact” exist a “norm or standard of non-discrimination.”

127 Fisheries Jurisdiction (UK v. Ice.; FRG v. Ice.), Jurisdiction of the Court, 1973 ICJ Rep. 3, 49 (Judgments of Feb. 2); and Merits, 1974 ICJ Rep. 3, 175 (Judgments of July 24).

128 Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ Rep. 253, 457 (Judgments of Dec. 20). See the comment by Judge Jessup in his foreword to D. Sandifer, supra note 25, at x:

129 North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 31, para. 43 (Judgment of Feb. 20).

130 See note 121 supra.

131 See Tunisia/Libya, 1982 ICJ Rep. at 117–18; and note 85 supra.

132 See Gulf of Maine, 1984 ICJ Rep. at 273–78.

133 Id. at 256 and 265 (referring to the Order of Mar. 30, 1984).

134 Libya/Malta, 1985 ICJ Rep. at 29–38, paras. 26–44 (especially paras. 35–41, at 34–37).

135 By the end of the Libya/Malta case, the following pattern had developed: an expert would give his testimony in the form of a rehearsed statement that was in “response” to prearranged questions by counsel. This technique managed to convey the feel of “live” testimony on direct examination without many of its accompanying risks; of course, it was still open to cross-examination.

136 See notes 108–120 supra and accompanying text.

137 “The following witnesses were called by Nicaragua and gave evidence: Commander Luis Carrión, Vice-Minister of the Interior of Nicaragua . . . ; Dr. David MacMichael, a former officer of the United States Central Intelligence Agency. . .; Professor Michael John Glennon . . . ; Father Jean Loison . . . ; [and] Mr. William Huper, Minister of Finance of Nicaragua. . . . ” Nicaragua Merits, 1986 ICJ Rep. at 18, para. 13.

138 Id.

139 This was done, for example, with the evidence of Mr. MacMichael relating to support of the Salvadoran insurgency by Nicaragua in 1981:

Id. at 74–75, para. 135.

140 The Court has had to attach considerable significance to the declarations made by the responsible authorities of the States concerned in view of the difficulties which it has had to face in determining the facts. Nevertheless, the Court was still bound to subject these declarations to the necessary critical scrutiny. A distinctive feature of the present case was that two of the witnesses called to give oral evidence on behalf of Nicaragua were members of the Nicaraguan Government, the Vice-Minister of the Interior (Commander Carrión), and the Minister of Finance (Mr. Huper). The Vice-Minister of the Interior was also the author of one of the two declarations annexed to the Nicaraguan Memorial on the merits, the author of the other being the Minister for Foreign Affairs. On the United States side, an affidavit was filed sworn by the Secretary of State. These declarations at ministerial level on each side were irreconcilable as to their statement of certain facts.

Id. at 42–43, para. 69. But see Judge Schwebel’s dissenting opinion, id. at 277, para. 27, for an important qualification:

141 The Chamber’s “technical expert” appointed in Gulf of Maine had a different and more limited capacity, and is therefore not being discussed under this head. See 1984 ICJ Rep. at 256, para. 8 (and, for his technical report, id. at 347–52).

142 Nicaragua Merits, 1986 ICJ Rep. at 40, para. 61.

143 These difficulties are surely reminiscent of those raised during consideration of the “safari proposal” in South West Africa (Second Phase); see D. Sandifer, supra note 25, at 346–48. See particularly, however, Judge Schwebel’s endorsement of a fact-finding inquiry in “Nicaragua, the United States, El Salvador, Honduras, Costa Rica, Guatemala and Cuba, an enquiry which could have sought access to probative data which certain governments claimed to possess, and which could have examined knowledgeable persons who were unable or unwilling otherwise to appear before the Court.” 1986 ICJ Rep. at 322, para. 132.

144 Free Zones, 1932 PCIJ, ser. C, No. 17–1, at 493; 2 Hudson Reports, supra note 49, at 510. See D. Sandifer, supra note 25, at 345 n. 211; and M. Hudson, supra note 21, at 566.

145 Free Zones, 1932 PCIJ, ser. A/B, No. 46, at 162–63; M. Hudson, supra note 21, at 566.

146 M. Hudson, supra note 21, at 566–67. Sandifer adds: “What use, if any, the Court may have made of the information thus gained is not indicated in its Judgment.” D. Sandifer, supra note 25, at 345.

147 1965 ICJ Rep. 9 (Order of Nov. 29). “The surprising aspect of [the divided vote of 8 to 6 in the Order of Nov. 29, 1965 on the visit to South West Africa] is the number of Judges who thought the Court should undertake the inspection.” D. Sandifer, supra note 25, at 348.

148 See, e.g., Slonim, S., South West Africa and the United Nations: an International Mandate in Dispute 244–49 (1973)Google Scholar; and Gill, T. D., South West Africa and the Sacred Trust 1919–1972, at 61–63 (1984)Google Scholar. See also D. Sandifer, supra note 25, at 345–48, and review thereof by the present writer in 71 AJIL 155, especially at 158 (1977).

149 Nevertheless, in the extensive argument on this question, no doubt was expressed as to the powers of the Court to take testimony should it deem it appropriate in the context of the litigation. See the discussion supra, text at notes 108–120, of the extraordinarily detailed work accomplished by the Court’s own experts in the Corfu Channel case.

150 1986 ICJ Rep. at 42, para. 67.

151 See Fitzmaurice, The Problem of the ‘Non-Appearing’ Defendant Government, 51 Brit. Y.B. Int’l L. 89 (1980); see also Guyomar, G., Le Défaut des parties à UN différend devant les juridictions internationales (1960)Google Scholar; Sinclair, Some Procedural Aspects of Recent International Litigation, 30 Int’l & Comp. L.Q. 338 (1981); Elkind, J., Non-Appearance before the International Court of Justice (1984)Google Scholar; and Thirlway, H., Non-appearance before the International Court of Justice (1985)Google Scholar.

152 ICJ Statute, Art. 53, para. 2. The Court has now stated:

Nicaragua Merits, 1986 ICJ Rep. at 24, para. 29 (emphasis added).

153 1986 ICJ Rep. at 38, para. 57. In paragraph 30 of the Judgment, the Court stated that it “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.” Id. at 25.

154 See, e.g., para. 126, id. at 70: “The Court has therefore to ascertain, so far as possible, the facts on which this claim [of collective self-defense against Nicaraguan aggression] is or may be based, in order to determine whether collective self-defence constitutes a justification of the activities of the United States here complained of.”

155 2 S. Rosenne, supra note 30, at 582.

156 1949 ICJ Rep. at 18; see also 2 S. Rosenne, supra note 30, at 582. He notes the cautionary words of the Court: “Here the Court uttered its word of caution, saying: ‘The proof may be drawn from inferences of fact, provided that they leave no room for reasonable doubt’ (italics in original . . . ).” Id.

157 In the controversy surrounding the Nicaragua case and the withdrawal of the United States, it has been stressed that much of the evidence that the United States would have been required to produce was of a sensitive “intelligence” nature, and that its production would imperil the intelligence sources involved and thus be adverse to U.S. national security interests. From this, a logically circular conclusion is advanced: i.e., that the existence of this dilemma proves that the Court was never intended to have jurisdiction over “national security” matters of this type, in the first instance.

158 Nicaragua Merits, 1986 ICJ Rep. at 84, para. 155 (emphasis added).

159 1949 ICJ Rep. at 18.

160 The hierarchy appears to be substantially as follows: (1) uncontrovertible matters of public knowledge (matters that are notorious or universally known) as to which the Court can in effect take “judicial notice”; (2) statements made by high officials of the government(s) concerned “against interest” in the context of the case at hand, from which inferences can be drawn or which, taken at face value, confirm the state’s responsibility for subsequent events presumed to be the reasonably likely consequence of the intention imparted by the statement; and (3) press statements of facts against the interest of the state concerned, which are not controverted or denied by responsible officials.

161 1986 ICJ Rep. at 51–53, paras. 87–91.

162 Id. at 74–75, para. 135. But see on this point Judge Schwebel, id. at 329–30, paras. 150–51.

163 Judgment, id. at 87, para. 163.

164 At no time, up to the present, has the United States Government addressed to the Security Council, in connection with the matters the subject of the present case, the report which is required by Article 51 of the United Nations Charter in respect of measures which a State believes itself bound to take when it exercises the right of individual or collective self-defence. . . . [T]his conduct of the United States hardly conforms with the latter’s avowed conviction that it was acting in the context of collective self-defence as consecrated by Article 51 of the Charter.

Id. at 121, para. 235 (emphasis added).

165 The States concerned did not behave as though there were an armed attack at the time when the activities attributed by the United States to Nicaragua, without actually constituting an attack, were nevertheless the most accentuated; they did so behave only at a time when these facts fell furthest short of what would be required for the Court to take the view that an armed attack existed on the part of Nicaragua against El Salvador.

Id. at 122, para. 236 (emphasis added).

166 Id. at 130, para. 256. The key fact upon which the inference was grounded was the finding by the Court

Id. (The ninth paragraph of the dispositif related to this claim; it is notable that Judge Schwebel of the United States voted in favor of it.)

167 Id. at 124, para. 241 (emphasis added).

168 Id. at 84, para. 155. “Since the Government of the United States has justified its refusal by claiming that any disclosure would jeopardize its sources of information, the Court has no means of assessing the reality or cogency of the undivulged evidence which the United States claimed to possess.” Id.

169 Id. at 84, para. 156 (emphasis added). “[I]t could presumably for example arrange for the deployment of a strong patrol force in El Salvador and Honduras, along the frontiers of these States with Nicaragua.” Id.

170 Id. at 84–85, para. 156 (emphasis added).

171 On the basis of the foregoing, the Court is satisfied that, between July 1979, the date of the fall of the Somoza régime in Nicaragua, and the early months of 1981, an intermittent flow of arms was routed via the territory of Nicaragua to the armed opposition in El Salvador. On the other hand, the evidence is insufficient to satisfy the Court that, since the early months of 1981, assistance has continued to reach the Salvadorian armed opposition from the territory of Nicaragua on any significant scale, or that the Government of Nicaragua was responsible for any flow of arms at either period.

Id. at 86, para. 160 (emphasis added).

172 But see the Dissenting Opinion of Judge Schwebel:

Id. at 266–67, para. 2. And: “the Court, partially because of its misapplication of the rules of evidence which it has articulated for this case, has even failed adequately to recognize and appraise the facts which do appear in the record of the proceedings and in this dissenting opinion.” Id. at 296, para. 75. See also, in the context of official statements: “It is the fact that these rules of evidence when applied will cut in favour of a government of the nature of that of the Government of Nicaragua and against a government of the nature of that of the Government of the United States.” Id. at 324, para. 139. (See also Dissenting Opinion of Judge Oda, id. at 212, 243–44, paras. 64, 65.)

173 Id. at 63, para. 111. The Court held that it “is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States. However,. . . support of the United States authorities for the activities of the contras took various forms over the years . . .” (id. at 61, para. 106). Thus, “the Court has not been able to satisfy itself that the respondent State ‘created’ the contra force in Nicaragua” (id. at 61, para. 108), but “[o]n the other hand, the Court holds it established that the United States authorities largely financed, trained, equipped, armed and organized the FDN” (id. at 62, para. 108) even though “there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf” (id. at 62, para. 109). The Court said it had insufficient evidence to reach a finding on whether the U.S. Government ever “devised the strategy and directed the tactics of the contras . . . . It is a fortiori unable to determine that the contra force may be equated for legal purposes with the forces of the United States” (id. at 62-63, para. 110).

174 See, e.g., quotations from Dissenting Opinion of Judge Schwebel, supra note 172, and further at 1986 ICJ Rep. at 331, para. 153; and Dissenting Opinion of Judge Oda, id. at 243–44, para. 64.

175 See, e.g., quotations from Dissenting Opinion of Judge Sir Robert Jennings, text at notes 13 and 14 supra, and discussion, text at notes 13–16 supra.

176 1986 ICJ Rep. at 41, para. 64 (emphasis added).

177 A refusal to comment was treated as an admission, id. at 49, para. 83. Presidential statements were also used in a corroborative sense, id. at 47, para. 78 (citing a televised interview stating: “Those were homemade mines . . . planted in those harbors . . . by the Nicaraguan rebels”), leading to the conclusion, id. at 48, para. 80 (“the Court finds it established that . . . the President of the United States authorized a United States government agency to lay mines in Nicaraguan ports”).

178 Id. at 71–73, paras. 128 and 131. In considering Nicaragua’s conduct in relation to Honduras and Costa Rica, the Court examined “only the allegations of direct cross-border attacks, since the affidavit of Mr. Shultz claims only that there was support by the provision of arms and supplies for military and paramilitary activities ‘on a smaller scale’ in those countries than in El Salvador.” Id. at 73, para. 131.

179 Id. at 79–82, paras. 144–151, citing an interview of President Ortega published in the New York Times Magazine, id. at 79, para. 144; and a New York Times report that he had stated that measures were being taken to prevent further use of an airstrip in Nicaragua for certain purposes, id. at 82, para. 151 (“This, in the Court’s opinion, is an admission of certain facts, such as the existence of an airstrip designed to handle small aircraft, probably for the transport of weapons, the likely destination being El Salvador, even if the Court has not received concrete proof of such transport”).

180 Id. at 50, para. 86. See also id. at 47, para. 78 (“According to press reports quoting sources in the United States administration, the laying of mines was effected from speed boats, not by members of the ARDE or FDN, but by the ‘UCLAs’”).

181 “According to the press, CIA officials presented to the Intelligence Committee in 1984 evidence of [terrorist behavior or atrocities] . . . and stated that this was the reason why the manual was prepared, it being intended to ‘moderate the rebels’ behaviour’.” The Court found confirmation of this report in “the finding of the Intelligence Committee that ‘The original purpose of the manual was to provide training to moderate FDN behaviour in the field’.” Id. at 68, para. 121.

182 However, it is natural also that the Court should treat such statements [made by high officials of the states concerned] with caution, whether the official statement was made by an authority of the Respondent or of the Applicant. Neither Article 53 of the Statute, nor any other ground, could justify a selective approach, which would have undermined the consistency of the Court’s methods and its elementary duty to ensure equality between the Parties. The Court must take account of the manner in which the statements were made public; evidently, it cannot treat them as having the same value irrespective of whether the text is to be found in an official national or international publication, or in a book or newspaper. It must also take note whether the text of the official statement in question appeared in the language used by the author or on the basis of a translation (cf. I. C.J. Reports 1980, p. 10, para. 13). It may also be relevant whether or not such a statement was brought to the Court’s knowledge by official communications filed in conformity with the relevant requirements of the Statute and Rules of Court. Furthermore, the Court has inevitably had sometimes to interpret the statements, to ascertain precisely to what degree they constituted acknowledgments of a fact.

Id. at 41, para. 65.

183 Nicaragua Merits, 1986 ICJ Rep. at 43, para. 69.

184 Id. at 43, para. 70. This principle was applied, inter alia, to the affidavit of Secretary of State Shultz that had been annexed to the Counter-Memorial of the United States. Id. at 71–72, para. 128 (“the Court would recall the observations it has already made . . . as to the evidential value of declarations by ministers of the government of a State engaged in litigation concerning an armed conflict”). But see Dissenting Opinion of Judge Schwebel, id. at 271–72, para. 14; and part G of the “Factual Appendix” thereto, id. at 410–11, para. 27.

186 1986 ICJ Rep. at 45, para. 74.

186 Id.

187 Id.

188 1980 ICJ Rep. at 9–10, paras. 12 and 13.

189 See also comments by Judge Jessup quoted in note 128 supra.

190 The Court referred to its statement in paragraph 9 of the Hostages case quoted in text at note 188 supra, and continued as follows:

1986 ICJ Rep. at 41, para. 63.

191 Id. at 53, para. 92.

192 Id. at 65–66, para. 117.

193 Id. at 80, para. 146 (“While the Court is not prepared totally to discount this material, it cannot find that it is of any great weight in itself).

194 But see Dissenting Opinion of Judge Schwebel, id. at 317, para. 120, and 324, paras. 138–39.

195

1986 ICJ Rep. at 87, paras. 163–64 (emphasis added).

196 Regarding press attribution of responsibility for attacks on Nicaraguan ports to the CIA’s “UCLAs”: “So far as the Court is aware, no denial of the report was made by the United States administration.” Id. at 50, para. 84 (emphasis added). (The denial would, of course, be expected to follow the press report within a reasonable time, and would not be made in court, since the party that would be in the position of offering the denial was no longer participating in the case and the Court was proceeding under Article 53.) Concerning lack of denial of press reports, see also id. at 52, para. 89. See further note 180 supra and accompanying text.

197 See note 193 supra and accompanying text, and especially para. 146 of the Judgment cited therein. See, in contrast, Dissenting Opinion of Judge Schwebel, 1986 ICJ Rep. at 317, para. 120, and 326–31, paras. 145–53.

198 See Dissenting Opinion of Judge Oda, 1986 ICJ Rep. at 240–41, para. 61, and examples given.

199 Judgment, 1986 ICJ Rep. at 46, para. 76.

200 Id. at 50, para. 85.

201 Id. at 54, para. 93.

202 Id. at 62, para. 109.

203 Id. at 62, para. 110.

204 Id. at 139, para. 277.

205 “Since the evidence linking the ‘Freedom Fighter’s Manual’ to the CIA is no more than newspaper reports the Court will not treat its publication as an act imputable to the United States Government for the purposes of the present case.” Id. at 65–66, para. 117 (emphasis added).

206 Id. at 87, para. 165 (emphasis added).

207 Id. (emphasis added).

208 Id. at 88, para. 165 (emphasis added). But see Dissenting Opinion of Judge Schwebel, id. at 323, para. 134 (“[the Court] failed to invite El Salvador to transmit evidence in support of its official claim to the Court that it had made such requests years earlier” (emphasis added)).

209 Id. at 120, para. 232. The Court then stated:

Id. (emphasis added). And:

Id. at 120–21, para. 233 (emphasis added). See also id. at 119–20, para. 231.

210 Id. at 70, para. 125.

211 Id. at 141, para. 282.

212 Id. at 42, para. 68 (emphasis added).

213 Id. at 50, para. 84: “It is not however clear what the source of [his] information was; since there is no suggestion that he participated in the operation . . .his evidence is probably strictly hearsay, and at the date of his affidavit, the same allegations had been published in the press” (emphasis added).

214 Id. at 82, para. 149.

215 The Department Statement and supporting Observations on the Judgment on Jurisdiction and Admissibility in the Nicaragua case in substance repeated this argument, and it has ever since occupied a key position in the views of those who disagree with that Judgment. See Department Statement, supra note 11, and “Observations,” reprinted in 24 ILM 246, 246–48 and 262–63 (1985).

216 Stripping away the argument concerning armed conflict, the United States Counter-Memorial framed the argument precisely in the first phase of the Nicaragua case:

Counter-Memorial Submitted by the United States of America (The Questions of the Jurisdiction of the Court to Entertain the Dispute and of the Admissibility of Nicaragua’s Application) 223–24, paras. 523–24 (Aug. 17, 1984) (emphasis added).

217 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 436–38, paras. 99–101 (Judgment of Nov. 26).

218 Id. at 437, para. 101.

219 Id.

220 Nicaragua Merits, 1986 ICJ Rep. at 28, para. 35.

221 Id. at 38, para. 57.

222 Id. at 39, para. 58.

223 See Dissenting Opinion of Judge Schwebel, id. at 318 and 324, paras. 124 and 140 (citing Nuclear Tests, 1974 ICJ Rep. at 263–65, for the proposition that the Court should have dealt with fact developments subsequent to the closure of the oral proceedings); is there not a distinction, however, between subsequent indications of mootness of the dispute, as in Nuclear Tests, as opposed to other developments in the dispute, as in Nicaragua?

224 See Art. 41 of the Statute and Art. 73 of the Rules, supra note 35. See also the U.S. request for the indication of provisional measures at the outset of the Hostages case on Nov. 29, 1979, and the Order of the Court granting such provisional measures only a fortnight later. United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Provisional Measures, 1979 ICJ Rep. 7 (Order of Dec. 15).

225 See generally Elkind, J., Interim Protection—A Functional Approach (1981)Google Scholar, who writes: “The Hostages Case also underlines the nexus between desperation and urgency. It may be necessary to act urgently to prevent an irreparable injury. It is necessary to act urgently to suppress an unendurable situation.” Id. at 258. What could be more indicative of a “current” or “ongoing” or “fluid” situation than one in which interim measures of protection are sought and justifiably indicated?

226 1986 ICJ Rep. at 294, para. 71 (Schwebel, J „ dissenting).

227 To paraphrase paragraph 101 of the Court’s Judgment on Jurisdiction and Admissibility in the Nicaragua case, 1984 ICJ Rep. at 437.

228 Thus, Judges Oda and Schwebel both felt that the Court had gone unnecessarily far in finding facts in the Nicaragua case and that Article 53 did not require it to go to such lengths. See Dissenting Opinion of Judge Oda, 1986 ICJ Rep. at 244–45, paras. 67–69, especially at 245, para. 69: “The Court should therefore have been wary of over-facile ‘satisfaction’ as to the facts, and perhaps should not have ventured to deliver a Judgment on the basis of such unreliable sources of evidence.” See also Dissenting Opinion of Judge Schwebel, 1986 ICJ Rep. at 316–20, paras. 116-27.

229 The Court stated the paradox as follows:

1986 ICJ Rep. at 25–26, para. 31.

230 Id. at 44, para. 73. The oral proceedings had only commenced on the preceding day, Sept. 12; the publication was circulated later, on Nov. 6, 1985, as an official document of the United Nations. Id.

231 Id. Judge Schwebel, in his dissenting opinion, stated that “the practice of the Court demonstrates repeated reliance on irregular communications from States parties to a case and reliance even on documents and statements of a non-appearing State which are not addressed to the Court and which are published after the closure of oral hearings.” Id. at 318, para. 123. Judge Schwebel believed, however, that inadequate account had been taken of this particular document. Id. at 318–20, paras. 122–27 (especially para. 122 at 318); see the Dissenting Opinion of Judge Oda, id. at 240–45, paras. 61–69, especially para. 62 at 241–43. (For a sophisticated discussion of this problem, written before the Judgment in Nicaragua Merits, see H. Thirlway, supra note 151, at 143–51.)

232 Indeed, the Court answered the second question of the special agreement in the case unanimously: Great Britain had violated Albanian sovereignty in connection with the evidence-gathering incursion represented by “Operation Retail,” but not in connection with the initial voyage of the destroyers that had hit the mines. 1949 ICJ Rep. at 32-36.

233 Id. at 13–15. The illegality issue was not raised specifically, in an exclusionary sense, but only in relation to the second question presented by the special agreement. For interesting recent discussion concerning the use or nonuse of “tainted” evidence that has been collected or obtained by processes that constitute violations of international law, and whether the Court is under any duty to exclude such evidence from its deliberations, see Thirlway, Dilemma or Chimera?—Admissibility of Illegally Obtained Evidence in International Adjudication, 78 AJIL 622, 632-33 (1984) (on Corfu Channel); and Reisman & Freedman, The Plantiffs Dilemma: Illegally Obtained Evidence and Inadmissibility in International Adjudication, 76 AJIL 737, 747 (1982).

234 See generally Thirlway, supra note 233.

235 See Temple of Preah Vihear, 1962 ICJ Rep. at 9; and Tunisia/Libya, 1982 ICJ Rep. at 25. On the Gulf of Maine case, see text at note 132 supra.

236 To quote Article 36, paragraph 2(c) of the Statute of the Court.

237 Certain German Interests in Polish Upper Silesia and the Factory at Chorzów (Ger. v. Pol.) (Jurisdiction), 1927 PCIJ, ser. A, No. 9 (Judgment of July 26); (Interim Protection), 1927 PCIJ, ser. A, No. 12 (Order of Nov. 21); (Interpretation), 1927 PCIJ, ser. A, No. 13 (Judgment of Dec. 16); (Indemnity), 1928 PCIJ, ser. A, No. 17 (Judgment of Sept. 13); (Expert Enquiry), 1928 PCIJ, ser. A, No. 17 (Order of Sept. 13).

238 Nationality Decrees, supra note 72; U.S. Nationals in Morocco, supra note 90; the Temple case, supra note 80; Tunisia/Libya, supra note 26.

239 Phosphates in Morocco (Italy v. Fr.) (Preliminary Objections), 1938 PCIJ, ser. A/B, No. 74 (Judgment of June 14).

240 Oscar Chinn, supra note 103.

241 German Settlers in Poland, 1923 PCIJ, ser. B, No. 6 (Advisory Opinion of Sept. 10); Acquisition of Polish Nationality, 1923 PCIJ, ser. B, No. 7 (Advisory Opinion of Sept. 15); Polish Postal Service in Danzig, 1925 PCIJ, ser. B, No. 11 (Advisory Opinion of May 16); Rights of Minorities in Upper Silesia (Minority Schools) (Ger. v. Pol.), 1928 PCIJ, ser. A, No. 15 (Judgment of Apr. 26); Access to, or Anchorage in, the Port of Danzig, of Polish War Vessels, 1931 PCIJ, ser. A/B, No. 43 (Advisory Opinion of Dec. 11); Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, 1932 PCIJ, ser. A/B, No. 44 (Advisory Opinion of Feb. 4); Polish Agrarian Reform and German Minority (Ger. v. Pol.) (Interim Protection), 1933 PCIJ, ser. A/B, No. 58 (Order of July 29); Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, 1935 PCIJ, ser. A/B, No. 65 (Advisory Opinion of Dec. 4).

242 Eastern Greenland, supra note 80; Peter Pázmány University Case [Appeal from a Judgment of the Czechoslovak-Hungarian Mixed Arbitral Tribunal (Peter Pázmány Univ. v. Czechoslovakia)] (Czech, v. Hung.), 1933 PCIJ, ser. A/B, No. 61 (Judgment of Dec. 15); Minquiers and Ecrehos, supra note 80; the Temple case, supra note 80.

243 Jaworzina, Saint-Naoum, Frontier Land and the Temple case, all supra note 80.

244 Mavrommatis Palestine Concessions (Greece v. Gr. Brit.) (Jurisdiction), 1924 PCIJ, ser. A, No. 2 (Judgment of Aug. 30); Mavrommatis Jerusalem Concessions (Greece v. Gr. Brit.) (Merits), 1925 PCIJ, ser. A, No. 5 (Judgment of Mar. 26); Readaptation of the Mavrommatis Jerusalem Concessions 0urisdiction), 1927 PCIJ, ser. A, No. 11 (Judgment of Oct. 10); Oscar Chinn, supra note 103; Lighthouses Case between France and Greece (Fr./Greece), 1934 PCIJ, ser. A/B, No. 62 (Judgment of Mar. 17); Lighthouses in Crete and Samos (Fr./Greece), 1937 PCIJ, ser. A/B, No. 71 (Judgment of Oct. 8); Phosphates in Morocco, supra note 239; Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania) (Merits), 1939 PCIJ, ser. A/B, No. 76 (Judgment of Feb. 28); Anglo-Iranian Oil Co. (UK v. Iran), Interim Protection, 1951 ICJ Rep. 89 (Order of July 5); and Preliminary Objections, 1952 ICJ Rep. 93 (Judgment of July 22).

245 Fisheries, supra note 87; Fisheries Jurisdiction, supra note 127; North Sea Continental Shelf, supra note 129; Aegean Sea Continental Shelf (Greece v. Turk.), Interim Protection, 1976 ICJ Rep. 3 (Order of Sept. 11); and 1978 ICJ Rep. 3 (Judgment of Dec. 19); Tunisia/Libya, supra note 26; Gulf of Maine, supra note 43; Libya/Malta, supra note 43.

246 Meuse, supra note 49.

247 Brazilian Loans (Braz./Fr.), 1929 PCIJ, ser. A, No. 21 (Judgment of July 12); Serbian Loans (Fr./Serb-Croat-Slov. State), 1929 PCIJ, ser. A, No. 20 (Judgment of July 12); Monetary Gold Removed from Rome in 1943 (Italy v. Fr., UK, U.S.), Preliminary Question, 1954 ICJ Rep. 19 (Judgment of June 15); Certain Norwegian Loans (Fr. v. Nor.), 1957 ICJ Rep. 9 (Judgment of July 6); Interhandel (Switz. v. U.S.) (Preliminary Objections), 1959 ICJ Rep. 6 (Judgment of Mar. 21); Barcelona Traction (New Application), supra note 91.

248 See the various Aerial Incident cases of the 1950s: Aerial Incident of 7 October 1952 (U.S. v. USSR), 1956 ICJ Rep. 9 (Order of Mar. 14); Aerial Incident of 10 March 1953 (U.S. v. Czech.), 1956 ICJ Rep. 6 (Order of Mar. 14); Aerial Incident of 4 September 1954 (U.S. v. USSR), 1958 ICJ Rep. 158 (Order of Dec. 9); Aerial Incident of 27 July 1955 (Isr. v. Bulg.), 1959 ICJ Rep. 127 (Judgment of May 26); Aerial Incident of 7 November 1954 (U.S. v. USSR), 1959 ICJ Rep. 276 (Order of Oct. 7); Aerial Incident of 27 July 1955 (UK v. Bulg.), 1960 ICJ Rep. 264 (Order of Aug. 3); Aerial Incident of 27 July 1955 (U.S. v. Bulg.), 1960 ICJ Rep. 146 (Order of May 30); South West Africa Cases (Second Phase), supra note 12.

249 Asylum (Colom./Peru), 1950 ICJ Rep. 266 (Judgment of Nov. 20); Request for interpretation of the Judgment of November 20th, 1950, in the asylum case, 1950 ICJ Rep. 395 (Judgment of Nov. 27).

250 Nottebohm (Lichtenstein v. Guat.), Preliminary Objections, 1953 ICJ Rep. 111 (Judgment of Nov. 18).

251 The Iranian Hostages case, supra note 54.

252 Corfu Channel, Merits, supra note 10; Compensation, supra note 9.

253 Nicaragua Merits, supra note 1.

254 The Meuse case even involved a “view” by the Court itself. See text at note 49 supra.

255 See Tunisia/Libya, 1982 ICJ Rep. at 54–58, paras. 62–68.

256 Following the schema of the Nicaragua decision, 1986 ICJ Rep. at 38–92, paras. 57–171.

257 Id. at 146–48, para. 292(4), (6), (7) and (8) [dispositif].

258 Id. at 45–51, paras. 75–86.

259 Id. at 147, para. 292(5) [dispositif].

260 Id. at 51–53, paras. 87–91.

261 Id. at 53, para. 92.

262 Id. at 146, para. 292(3) [dispositif].

263 Id. at 53–65, paras. 92–116.

264 Id. at 61, para. 107 (“The legislative and executive bodies of the respondent State have moreover, subsequent to the controversy which has been sparked off in the United States, openly admitted the nature, volume and frequency of this support”).

265 Id. at 65–66, para. 117.

266 Id. at 66–69, paras. 118–22.

267 Id. at 69–70, paras. 123–25.

268 Id. at 71–72, para. 128.

269 Id. at 70–86, paras. 126–60.

270 Id. at 86–87, paras. 161–64.

271 Id. at 87–88, paras. 165–66.

272 Id. at 87–92, paras. 165–71.

273 See note 172 supra.

274 See, e.g., Dissenting Opinion of Judge Schwebel, 1986 ICJ Rep. at 271–73, paras. 14–16; 279–80, paras. 31–32; and 295–96, para. 75.

275 Id. at 318–20, paras. 122–27; and 325–27, paras. 141–45.

276 Id. at 321–23, paras. 132–34; see also note 143 supra and accompanying text.

277 See supra note 188 and accompanying text.

278 Frontier Dispute (Burkina Faso/Mali) [Special Agreement of Sept. 16, 1983], 1984–1985 ICJ Y.B. 171; ICJ Communiqué No. 86/18, December 22, 1986 (Judgment of Dec. 22).

279 Statement of Oct. 7, 1985, reproduced in 24 ILM 1745 (1985).

280 See Nicaragua Merits, 1986 ICJ Rep. at 142–43, paras. 283–85, especially para. 284; and 149, para. 292(15) [dispositif].

281 Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal (Yakimetz v. Secretary-General of the United Nations). On Sept. 20, 1984, the Court received a request for an advisory opinion submitted by the Committee on Application for Review of Judgments of the Administrative Tribunal of the United Nations in respect of UNAT Judgment No. 333 of June 8, 1984. The committee had taken this step on Aug. 23, at the request of the interested parties, under Article 11 of the UNAT Statute. Written comments were submitted by the United States Government and by the Secretary-General, who also transmitted the comments of the individual who was the subject of the UNAT judgment. See Report of the International Court of Justice, 1 August 1985-31 July 1986, 41 UN GAOR Supp. (No. 4) at 18, UN Doc. A/41/4 (1986).

282 See ICJ Communiqué No. 86/10, July 29,1986, announcing the filing of two applications by Nicaragua on July 28, 1986, one against Costa Rica and one against Honduras, each entitled “Border and Transborder Armed Actions.” Both respondents have appointed agents; Honduras is expected to contest its case on jurisdictional grounds, and Costa Rica has reserved the right to present a counterclaim on the merits. See, respectively, ICJ Communiqué Nos. 86/11 and 86/12, Sept. 3, 1986.

283 It will be interesting—and most important—to note the extent to which (if at all) the Court’s application of the principles and rules of evidence developed in Nicaragua v. United States in 1986 will be applied, adapted or modified, or will in effect remain unused in these two subsequent cases, and also the extent to which (if at all) the Court will modify or alter its interpretation of the critical legal principles set forth in the original Nicaragua case.

284 El Salvador/Honduras Boundary Dispute, Compromis of May 24, 1986, registered with the UN Secretary-General on Oct. 7, 1986. The parties have agreed to notify the Court jointly before Dec. 31, 1986, following which an official announcement concerning the case will be made.

285 See notes 129-135 supra and accompanying text.

286 Which could probably have been prevented had the United States taken the Court more seriously in 1984: “Before embarking on a Reagan doctrine,” Thomas Franck has observed, “the United States should have taken care that its legality could not be tested in the World Court. . . . Failing to bring its legal strategy into line with its political strategy, the United States found itself inevitably on the losing end of a major law suit.” T. Franck, Judging the World Court 60 (1986); see also id. at 64.

287 See Henkin, L., How Nations Behave 187 (2d ed. 1979)Google Scholar; Katz, M., The Relevance of International Adjudication 103–44 (1968)Google Scholar.

288 If, indeed, it is still constructive to characterize the majority of United Nations members by that term.

289 Which have played a surprisingly active role even in the past two decades, in spite of the slump following the South West Africa Judgment in 1966. See, for example, these cases (in addition to the Nicaragua series) involving Third World interests: Trial of Pakistani Prisoners of War (Pak. v. India), Interim Protection, 1973 ICJ Rep. 328 (Order of July 13); and removal from list, id. at 347 (Order of Dec. 15); Western Sahara, 1975 ICJ Rep. 12 (Advisory Opinion of Oct. 16); Aegean Sea, supra note 245; Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, 1980 ICJ Rep. 73 (Advisory Opinion of Dec. 20); the Iranian Hostages case, supra note 54; Continental Shelf (Tunisia/Libyan Arabjamahiriya), Application [Malta] for Permission to Intervene, 1981 ICJ Rep. 3 (Judgment of Apr. 14); Tunisia / Libya, supra note 26; Continental Shelf (Libyan ArabJamahiriya/Malta), Application [Italy] for Permission to Intervene, 1984 ICJ Rep. 3 (Judgment of Mar. 21); Libya/Malta, supra note 43; Application for Revision and Interpretation, supra note 85; Frontier Dispute, supra note 278.

290 “In different respects and for different reasons, the Court was not [politically] responsive enough in the South West Africa Cases and in its Certain Expenses Advisory Opinion and probably was overly responsive in the Namibia Advisory Opinion.” R. Falk, Reviving the World Court 23 (1986).

291 Even states that may be highly sympathetic to the vigorous substantive holding in the case may not be prepared to face a similarly vigorous ruling of the Court on a matter closer to their own national interest.

292 See text at note 61 supra.

293 Nicaragua Merits, 1986 ICJ Rep. at 142–43, paras. 283–85; and 149, para. 292(15) [dispositif]. Can it not be cogently argued that the United States, bound as it is by Article 94, paragraph 1 of the Charter, ought now to reenter the proceedings so as to mitigate damages? (The Court even suggested this eventuality: “while the United States has chosen not to appear or participate in the present phase of the proceedings, Article 53 of the Statute does not debar it from appearing to present its arguments on the question of reparation if it so wishes.” 1986 ICJ Rep. at 143, para. 284.) Does the Executive not have a duty to avoid, wherever possible, a heedless accumulation of liabilities under treaties and other international agreements? Is not a decision not to reenter the proceedings for the purpose of mitigating damages tantamount to a gamble, in effect, that the Judgment will be unenforceable at all costs, as well as an anticipatory repudiation of our solemn obligations under Article 94, paragraph 1 of the Charter (as distinguished from any subsequent enforcement action under Article 94, paragraph 2)? See Highet, supra note 13, at 1003.

294 See Nicaragua Merits, 1986 ICJ Rep. at 23–24, para. 27; see also Rowles, “Secret Wars,” Self-Defense and the Charter—A Reply to Professor Moore, 80 AJIL 568, 580–82 (1986); and Highet, supra note 13, at 1003. The problem is also raised collaterally by the possibility of Nicaragua’s being successful in enforcement or exequatur actions in third-party state courts in efforts to obtain judgments to confirm and order execution of the Court’s decision.

295 As a matter of historical contrast to the positions currently being adopted by the United States (see the Department Statement, supra note 11): in 1923 Secretary of State Charles Evans Hughes (later to become both a judge of the PCIJ from 1928 to 1930 and also Chief Justice of the Supreme Court of the United States) wrote a letter to Norway enclosing a U.S. Government check for the full amount of a more than $ 12 million arbitral award of 1922 in favor of Norway, on behalf of Norwegian shipowners whose vessels had been appropriated by the United States during World War I. Actually, Secretary Hughes was highly critical of the award and refused to accept that its bases of decision were declaratory of international law or capable of creating precedents binding on the United States. The check was nevertheless delivered, as a “tangible proof of [the] desire [of the U.S. Government] to respect arbitral awards” and of its “devotion to the principle of arbitral settlements even in the face of a decision proclaiming certain theories of law which it cannot accept.” 1 R. Int’l Arb. Awards 344 (emphasis added). This precept should not go unnoted at the present time.

296 UN Charter art. 92.

297 See Fitzmaurice, supra note 151, at 105.

298 See text at note 61 supra.