U.S.
Supreme Court At the breaking out of the recent war with Spain, two fishing smacks -- the one a sloop,
The Paquete Habana, 175 U.S. 677 (1900)
The Paquete Habana
Nos. 895-896
Argued November 7-8, 1899
Decided January 8, 1900
175 U.S. 677 (1900)
APPEALS FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF FLORIDA
Syllabus
Under the Act of Congress of March 3, 1891, c. 517, this Court has jurisdiction of
appeals from all final sentences and decrees in prize causes, without regard to the
amount in dispute and without any certificate of the district judge as to the importance
of the particular case.
International law is part of our law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction as often as questions of right depending
upon it are duly presented for their determination. For this purpose, where there is no
treaty and no controlling executive or legislative act or judicial decision, resort must be
had to the customs and usages of civilized nations, and, as evidence of these, to the
works of jurists and commentators, not for the speculations of their authors concerning
what the law ought to be, but for trustworthy evidence of what the law really is.
At the present day, by the general consent of the civilized nations of the world and
independently of any express treaty or other public act, it is an established rule of
international law that coast fishing vessels, with their implements and supplies, cargoes
and crews, unarmed and honestly pursuing their peaceful calling of catching and
bringing in fresh fish, are exempt from capture as prize of war. And this rule is one
which prize courts, administering the law of nations, are bound to take judicial notice
of, and to give effect to, in the absence of any treaty or other public act of their own
government in relation to the matter.
1
43 feet long on the keel and of 25 tons burden, and with a crew of three men, and the
other a schooner, 51 feet long on the keel and of 35 tons burden, and with a crew of
six men -- were regularly engaged in fishing on the coast of Cuba, sailing under the
Spanish flag, and each owned by a Spanish subject, residing in Havana; her crew, who
also resided there, had no interest in the vessel, but were entitled to shares, amounting
in all to two thirds, of her catch, the other third belonging to her owner, and her cargo
consisted of fresh fish, caught by her crew from the sea, put on board as they were
caught, and kept and sold alive. Each vessel left Havana on a coast fishing voyage,
and sailed along the coast of Cuba about two hundred miles to the west end of the
island; the sloop there fished for twenty-five days in the territorial waters of Spain, and
the schooner extended her fishing trip a hundred
Page 175 U. S. 678
miles farther across the Yucatan Channel, and fished for eight days on the coast of
Yucatan. On her return, with her cargo of live fish, along the coast of Cuba, and when
near Havana, each was captured by one of the United States blockading squadron.
Neither fishing vessel had any arms or ammunition on board, had any knowledge of
the blockade, or even of the war, until she was stopped by a blockading vessel, made
any attempt to run the blockade, or any resistance at the time of her capture, nor was
there any evidence that she, or her crew, was likely to aid the enemy. Held that both
captures were unlawful, and without probable cause.
The cases are stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
These are two appeals from decrees of the District Court of the United States for the
Southern District of Florida condemning two fishing vessels and their cargoes as prize
of war.
Each vessel was a fishing smack, running in and out of Havana, and regularly engaged
in fishing on the coast of Cuba; sailed under the Spanish flag; was owned by a Spanish
subject of Cuban birth, living in the City of Havana; was commanded by a subject of
Spain, also residing in Havana, and her master and crew had no interest in the vessel,
but were entitled to shares, amounting in all to two-thirds, of her catch, the other third
belonging to her owner. Her cargo consisted of fresh fish, caught by her crew from the
sea, put on board as they were caught, and kept and sold alive. Until stopped by the
blockading squadron, she had no knowledge of the existence of the war or of any
blockade. She had no arms or ammunition on board, and made no attempt to run the
blockade after she knew of its existence, nor any resistance at the time of the capture.
The Paquete Habana was a sloop, 43 feet long on the keel,
Page 175 U. S. 679
and of 25 tons burden, and had a crew of three Cubans, including the master, who had
a fishing license from the Spanish government, and no other commission or license.
She left Havana March 25, 1898, sailed along the coast of Cuba to Cape San Antonio
at the western end of the island, and there fished for twenty-five days, lying between
the reefs off the cape, within the territorial waters of Spain, and then started back for
Havana, with a cargo of about 40 quintals of live fish. On April 25, 1898, about two
miles off Mariel, and eleven miles from Havana, she was captured by the United States
gunboat Castine.
The Lola was a schooner, 51 feet long on the keel, and of 35 tons burden, and had a
crew of six Cubans, including the master, and no commission or license. She left
Havana April 11, 1898, and proceeded to Campeachy Sound, off Yucatan, fished there
eight days, and started back for Havana with a cargo of about 10,000 pounds of live
fish. On April 26, 1898, near Havana, she was stopped by the United States
steamship Cincinnati, and was warned not to go into Havana, but was told that she
would be allowed to land at Bahia Honda. She then changed her course, and put for
Bahia Honda, but on the next morning, when near that port, was captured by the United
States steamship Dolphin.
Both the fishing vessels were brought by their captors into Key West. A libel for the
condemnation of each vessel and her cargo as prize of war was there filed on April 27,
1898; a claim was interposed by her master on behalf of himself and the other members
of the crew, and of her owner; evidence was taken, showing the facts above stated,
and on May 30, 1898, a final decree of condemnation and sale was entered,
"the court not being satisfied that as a matter of law, without any ordinance, treaty, or
proclamation, fishing vessels of this class are exempt from seizure."
Each vessel was thereupon sold by auction; the Paquete Habana for the sum of $490
and theLola for the sum of $800. There was no other evidence in the record of the value
of either vessel or of her cargo.
It has been suggested in behalf of the United States that
Page 175 U. S. 680
2
this Court has no jurisdiction to hear and determine these appeals because the matter
in dispute in either case does not exceed the sum or value of $2,000, and the district
judge has not certified that the adjudication involves a question of general importance.
The suggestion is founded on § 695 of the Revised Statutes, which provides that
"an appeal shall be allowed to the Supreme Court from all final decrees of any district
court in prize causes, where the matter in dispute, exclusive of costs, exceeds the sum
or value of two thousand dollars, and shall be allowed, without reference to the value
of the matter in dispute, on the certificate of the district judge that the adjudication
involves a question of general importance."
The Judiciary Acts of the United States, for a century after the organization of the
government under the Constitution, did impose pecuniary limits upon appellate
jurisdiction.
In actions at law and suits in equity the pecuniary limit of the appellate jurisdiction of
this Court from the circuit courts of the United States was for a long time fixed at $2000.
Acts of September 24, 1789, c. 20, § 22; 1 Stat. 84; March 3, 1803, c. 40; 2 Stat.
244; Gordon v. Ogden, 3 Pet. 33; Rev.Stat. §§ 691, 692. In 1875, it was raised to
$5,000. Act of February 16, 1875, c. 77, § 3; 18 Stat. 316. And in 1889 this was modified
by providing that, where the judgment or decree did not exceed the sum of $5,000, this
Court should have appellate jurisdiction upon the question of the jurisdiction of the
circuit court, and upon that question only. Act of February 25, 1889, c. 236, § 1; 25 Stat.
693; Parker v. Ormsby, 141 U. S. 81.
As to cases of admiralty and maritime jurisdiction, including prize causes, the Judiciary
Act of 1789, in § 9, vested the original jurisdiction in the district courts, without regard
to the sum or value in controversy, and in § 21 permitted an appeal from them to the
circuit courts where the matter in dispute exceeded the sum or value of $300. 1 Stat.
77, 83, c. 20; The Betsey, 3 Dall. 6, 3 U. S. 16; The Amiable Nancy, 3 Wheat.
546; Stratton v. Jarvis, 8 Pet. 4, 33 U. S. 11. By the Act of March 3, 1803, c. 40, appeals
to the circuit court were permitted from all final decrees of a district court where
Page 175 U. S. 681
the matter in dispute exceeded the sum or value of $50, and from the circuit courts to
this Court in all cases "of admiralty and maritime jurisdiction, and of prize or no prize"
in which the matter in dispute exceeded the sum or value of $2,000. 2 Stat. 244; Jenks
v. Lewis, 3 Mason 503; Stratton v. Jarvis, above cited; The Admiral, 3 Wall. 603, 70 U.
S. 612. The acts of March 3, 1863, c. 86, § 7, and June 30, 1864, c. 174, § 13, provided
that appeals from the district courts in prize causes should lie directly to this Court,
where the amount in controversy exceeded $2,000, or "on the certificate of the district
judge that the adjudication involves a question of difficulty and general importance." 12
Stat. 760; 13 Stat. 310. The provision of the act of 1803, omitting the words "and of
prize or no prize," was reenacted in § 692 of the Revised Statutes, and the provision of
the act of 1864, concerning prize causes, was substantially reenacted in § 695 of the
Revised Statutes, already quoted.
But all this has been changed by the Act of March 3, 1891, c. 517, establishing the
circuit courts of appeals and creating a new and complete scheme of appellate
jurisdiction, depending upon the nature of the different cases, rather than upon the
pecuniary amount involved. 26 Stat. 826.
By that act, as this Court has declared, the entire appellate jurisdiction from the circuit
and district courts of the United States was distributed, "according to the scheme of the
act," between this Court and the circuit courts of appeals thereby established, "by
designating the classes of cases" of which each of these courts was to have final
jurisdiction. McLish v. Roff, 141 U. S. 661, 141 U. S. 666; American Construction Co.
v. Jacksonville Railway, 148 U. S. 372, 148 U. S. 382; Carey v. Houston & Texas
Railway, 150 U. S. 170, 150 U. S. 179.
The intention of Congress, by the act of 1891, to make the nature of the case, and not
the amount in dispute, the test of the appellate jurisdiction of this Court from the district
and circuit courts clearly appears upon examination of the leading provisions of the act.
Section 4 provides that no appeal, whether by writ of error or otherwise, shall hereafter
be taken from a district court
Page 175 U. S. 682
to a circuit court, but that all appeals, by writ of error or otherwise, from the district courts
"shall only be subject to review" in this Court or in the circuit court of appeal "as is
hereinafter provided," and "the review by appeal, by writ of error, or otherwise" from the
circuit courts, "shall be had only" in this Court or in the circuit court of appeals,
"according to the provisions of this act regulating the same."
Section 5 provides that "appeals or writs of error may be taken from the district courts,
or from the existing circuit courts, direct to the Supreme Court, in the following cases:"
First.
"In any case in which the jurisdiction of the court is in issue; in such cases, the question
of jurisdiction alone shall be certified to the Supreme Court from the court below for
decision."
3
This clause includes "any case," without regard to amount, in which the jurisdiction of
the court below is in issue, and differs in this respect from the act of 1889, above cited.
Second. "From the final sentences and decrees in prize causes." This clause includes
the whole class of "the final sentences and decrees in prize causes," and omits all
provisions of former acts regarding amount in controversy, or certificate of a district
judge.
Third. "In cases of conviction of a capital or otherwise infamous crime." This clause
looks to the nature of the crime, and not to the extent of the punishment actually
imposed. A crime which might have been punished by imprisonment in a penitentiary
is an infamous crime, even if the sentence actually pronounced is of a small fine
only. Ex Parte Wilson, 114 U. S. 417,114 U. S. 426. Consequently, such a sentence for
such a crime was subject to the appellate jurisdiction of this Court, under this clause,
until this jurisdiction, so far as regards infamous crimes, was transferred to the circuit
court of appeals by the Act of January 20, 1897, c. 68. 29 Stat. 492.
Fourth. "In any case, that involves the construction or application of the Constitution of
the United States."
Fifth.
"In any case in which the constitutionality of any law of the United States, or the validity
or construction of any treaty made under its authority, is drawn in question. "
Page 175 U. S. 683
Sixth. "In any case in which the Constitution or law of a state is claimed to be in
contravention of the Constitution of the United States."
Each of these last three clauses, again, includes "any case" of the class mentioned.
They all relate to what are commonly called federal questions, and cannot reasonably
be construed to have intended that the appellate jurisdiction of this Court over such
questions should be restricted by any pecuniary limit -- especially in their connection
with the succeeding sentence of the same section:
"Nothing in this act shall affect the jurisdiction of the Supreme Court in cases appealed
from the highest court of a state, nor the construction of the statute providing for review
of such cases."
Writs of error from this Court to review the judgments of the highest court of a state
upon such questions have never been subject to any pecuniary limit. Act of September
24, 1789, c. 20, § 25; 1 Stat. 85; Buel v. Van Ness, 8 Wheat. 312; Act of February 5,
1867, c. 28, § 2; 14 Stat. 386; Rev.Stat. § 709.
By section 6 of the act of 1891, this Court is relieved of much of the appellate jurisdiction
that it had before; the appellate jurisdiction from the district and circuit courts "in all
cases other than those provided for in the preceding section of this act, unless
otherwise provided by law," is vested in the circuit court of appeals, and its decisions in
admiralty cases, as well as in cases arising under the criminal laws, and in certain other
classes of cases, are made final, except that that court may certify to this Court
questions of law, and that this Court may order up the whole case by writ of certiorari.
It is settled that the words "unless otherwise provided by law," in this section, refer only
to provisions of the same act, or of contemporaneous or subsequent acts, and do not
include provisions of earlier statutes. Lau Ow Bew v. United States,144 U. S. 47, 144
U. S. 57; Hubbard v. Soby, 146 U. S. 56; American Construction Co. v. Jacksonville
Railway, 148 U. S. 372, 148 U. S. 383.
The act of 1891 nowhere imposes a pecuniary limit upon the appellate jurisdiction,
either of this Court or of the circuit court of appeals, from a district or circuit court of the
United States. The only pecuniary limit imposed is one of
Page 175 U. S. 684
$1,000 upon the appeal to this Court of a case which has been once decided on appeal
in the circuit court of appeals, and in which the judgment of that court is not made final
by section 6 of the act.
Section 14 of the act of 1891, after specifically repealing section 691 of the Revised
Statutes and section 3 of the act of February 16, 1875, further provides that
"all acts and parts of acts relating to appeals or writs of error, inconsistent with the
provisions for review by appeals or writs of error in the preceding sections 5 and 6 of
this act, are hereby repealed."
26 Stat. 829, 830. The object of the specific repeal, as this Court has declared, was to
get rid of the pecuniary limit in the acts referred to. McLish v. Roff, 141 U. S. 661, 141
U. S. 667. And, although neither section 692 nor section 695 of the Revised Statutes is
repealed by name, yet, taking into consideration the general repealing clause, together
with the affirmative provisions of the act, the case comes within the reason of the
decision in an analogous case, in which this Court said:
"The provisions relating to the subject matter under consideration are, however, so
comprehensive, as well as so variant from those of former acts, that we think the
4
intention to substitute the one for the other is necessarily to be inferred, and must
prevail."
Fisk v. Henarie, 142 U. S. 459, 142 U. S. 468.
The decision in this Court in the recent case of United States v. Rider, 163 U. S. 132,
affords an important, if not controlling, precedent. From the beginning of this century
until the passage of the act of 1891, both in civil and in criminal cases, questions of law
upon which two judges of the circuit court were divided in opinion might be certified by
them to this Court for decision. Act of April 29, 1802, c. 31, § 6; 2 Stat. 159; June 1,
1872, c. 255, § 1; 17 Stat.196; Rev.Stat. §§ 650-652, 693, 697; Insurance Co. v.
Dunham, 11 Wall. 1, 78 U. S. 21; United States v. Sanges, 144 U. S. 310, 144 U. S.
320. But in United States v. Rider, it was adjudged by this Court that the act of 1891
had superseded and repealed the earlier acts authorizing questions of law to be
certified from the circuit court to this Court, and the grounds of that adjudication
sufficiently appear by
Page 175 U. S. 685
the statement of the effect of the act of 1891 in two passages of that opinion:
"Appellate jurisdiction was given in all criminal cases by writ of error either from this
Court or from the circuit courts of appeals, and in all civil cases by appeal or error,
without regard to the amount in controversy, except as to appeals or writs of error to or
from the circuit courts of appeals in cases not made final as specified in § 6. . . . It is
true that repeals by implication are not favored, but we cannot escape the conclusion
that, tested by its scope, its obvious purpose, and its terms, the Act of March 3, 1891,
covers the whole subject matter under consideration, and furnishes the exclusive rule
in respect of appellate jurisdiction on appeal, writ of error, or certificate."
163 U. S. 163 U.S. 138, 163 U. S. 140.
That judgment was thus rested upon two successive propositions: first, that the act of
1891 gives appellate jurisdiction, either to this Court or to the circuit court of appeals,
in all criminal cases, and in all civil cases "without regard to the amount in controversy;"
second, that the act, by its terms, its scope, and its obvious purpose, "furnishes the
exclusive rule in respect of appellate jurisdiction on appeal, writ of error, or certificate."
As was long ago said by Chief Justice Marshall,
"the spirit as well as the letter of a statute must be respected, and where the whole
context of the law demonstrates a particular intent in the legislature to effect a certain
object, some degree of implication may be called in to aid that intent."
Durousseau v. United States, 6 Cranch 307, 10 U. S. 314. And it is a well settled rule
in the construction of statutes, often affirmed and applied by this Court, that,
"even where two acts are not in express terms repugnant, yet if the latter act covers the
whole subject of the first, and embraces new provisions, plainly showing that it was
intended as a substitute for the first act, it will operate as a repeal of that act."
United States v. Tynen, 11 Wall. 88, 78 U. S. 92; King v. Cornell, 106 U. S. 395, 106 U.
S. 396; Tracy v. Tuffly, 134 U. S. 206, 134 U. S. 223; Fisk v. Henarie, 142 U. S.
459, 142 U. S. 468; District of Columbia v. Hutton, 143 U. S. 18, 143 U. S. 27; United
States v. Healey, 160 U. S. 136, 160 U. S. 147.
We are of opinion that the act of 1891, upon its face, read
Page 175 U. S. 686
in the light of settled rules of statutory construction and of the decisions of this Court,
clearly manifests the intention of Congress to cover the whole subject of the appellate
jurisdiction from the district and circuit courts of the United States, so far as regards in
what cases, as well as to what courts, appeals may be taken, and to supersede and
repeal, to this extent, all the provisions of earlier acts of Congress, including those that
imposed pecuniary limits upon such jurisdiction, and, as part of the new scheme, to
confer upon this Court jurisdiction of appeals from all final sentences and decrees in
prize causes, without regard to the amount in dispute, and without any certificate of the
district judge as to the importance of the particular case.
We are then brought to the consideration of the question whether, upon the facts
appearing in these records, the fishing smacks were subject to capture by the armed
vessels of the United States during the recent war with Spain.
By an ancient usage among civilized nations, beginning centuries ago and gradually
ripening into a rule of international law, coast fishing vessels pursuing their vocation of
catching and bringing in fresh fish have been recognized as exempt, with their cargoes
and crews, from capture as prize of war.
This doctrine, however, has been earnestly contested at the bar, and no complete
collection of the instances illustrating it is to be found, so far as we are aware, in a single
published work, although many are referred to and discussed by the writers on
5
international law, notable in 2 Ortolan, Regles Internationales et Diplomatie de la Mer
(4th ed.) lib. 3, c. 2, pp. 51-56; in 4 Calvo, Droit International (5th ed.) §§ 2367-2373; in
De Boeck, Propriete Privee Ennemie sous Pavillon Ennemi, §§ 191-196, and in Hall,
International Law (4th ed.) § 148. It is therefore worth the while to trace the history of
the rule from the earliest accessible sources through the increasing recognition of it,
with occasional setbacks, to what we may now justly consider as its final establishment
in our own country and generally throughout the civilized world.
The earliest acts of any government on the subject mentioned
Page 175 U. S. 687
in the books either emanated from, or were approved by, a King of England.
In 1403 and 1406, Henry IV issued orders to his admirals and other officers, entitled
"Concerning Safety for Fishermen -- De Securitate pro Piscatoribus." By an order of
October 26, 1403, reciting that it was made pursuant to a treaty between himself and
the King of France, and for the greater safety of the fishermen of either country, and so
that they could be, and carry on their industry, the more safely on the sea, and deal
with each other in peace, and that the French King had consented that English
fishermen should be treated likewise, it was ordained that French fishermen might,
during the then pending season for the herring fishery, safely fish for herrings and all
other fish from the harbor of Gravelines and the Island of Thanet to the mouth of the
Seine and the harbor of Hautoune. And by an order of October 5, 1406, he took into
his safe conduct and under his special protection, guardianship, and defense all and
singular the fishermen of France, Flanders, and Brittany, with their fishing vessels and
boats, everywhere on the sea, through and within his dominions, jurisdictions, and
territories, in regard to their fishery, while sailing, coming, and going, and at their
pleasure, freely and lawfully fishing, delaying, or proceeding, and returning homeward
with their catch of fish, without any molestation or hindrance whatever, and also their
fish, nets, and other property and goods soever, and it was therefore ordered that such
fishermen should not be interfered with, provided they should comport themselves well
and properly, and should not, by color of these presents, do or attempt, or presume to
do or attempt, anything that could prejudice the King, or his Kingdom of England, or his
subjects. 8 Rymer's Foedera 336, 451.
The treaty made October 2, 1521, between the Emperor Charles V and Francis I of
France, through their ambassadors, recited that a great and fierce war had arisen
between them, because of which there had been, both by land and by sea, frequent
depredations and incursions on either side, to the grave detriment and intolerable injury
of the innocent
Page 175 U. S. 688
subjects of each, and that a suitable time for the herring fishery was at hand, and, by
reason of the sea being beset by the enemy, the fishermen did not dare to go out,
whereby the subject of their industry, bestowed by heaven to allay the hunger of the
poor, would wholly fail for the year unless it were otherwise provided -- quo fit, ut
piscaturae commoditas, ad pauperum levandam famen a coelesti numine concessa,
cessare hoc anno omnino debeat, nisi aliter provideatur. And it was therefore agreed
that the subjects of each sovereign, fishing in the sea or exercising the calling of
fishermen, could and might, until the end of the next January, without incurring any
attack, depredation, molestation, trouble, or hindrance soever, safely and freely,
everywhere in the sea, take herrings and every other kind of fish, the existing war by
land and sea notwithstanding; and, further, that, during the time aforesaid, no subject
of either sovereign should commit, or attempt or presume to commit, any depredation,
force, violence, molestation, or vexation to or upon such fishermen or their vessels,
supplies, equipments, nets, and fish, or other goods soever truly appertaining to fishing.
The treaty was made at Calais, then an English possession. It recites that the
ambassadors of the two sovereigns met there at the earnest request of Henry VIII and
with his countenance and in the presence of Cardinal Wolsey, his chancellor and
representative. And towards the end of the treaty, it is agreed that the said King and
his said representative, "by whose means the treaty stands concluded, shall be
conservators of the agreements therein, as if thereto by both parties elected and
chosen." 4 Dumont, Corps Diplomatique, pt. 1, pp. 352, 353.
The herring fishery was permitted, in time of war, by French and Dutch edicts in 1536.
Bynkershoek, Quaestiones Juris Publicae, lib. 1, c. 3; 1 Emerigon des Assurances, c.
4, section 9; c. 12, section 19, section 8.
France, from remote times, set the example of alleviating the evils of war in favor of all
coast fishermen. In the compilation entitled "Us et Coutumes de la Mer," published by
Cleirac in 1661, and in the third part thereof, containing "Maritime or Admiralty
Jurisdiction -- la Jurisdiction de la
Page 175 U. S. 689
Marine ou d'Admiraute -- as well in time of peace as in time of war," article 80 is as
follows:
"The admiral may in time of war accord fishing truces -- tresves pescheresses -- to the
enemy and to his subjects, provided that the enemy will likewise accord them to
Frenchmen."
Cleirac 544. Under this article, reference is made to articles 49 and 79, respectively, of
the French ordinances concerning the admiralty in 1543 and 1584, of which it is but a
6
reproduction. 4 Pardessus, Collection de Lois Maritimes 319; 2 Ortolan, 51. And Cleirac
adds, in a note, this quotation from Froissart's Chronicles:
"Fishermen on the sea, whatever war there were in France and England, never did
harm to one another; so they are friends, and help one another at need -- Pescheurs
sur mer, quelque guerre qui soit en France et Angleterre, jamais ne se firent mal l'un a
l'autre; aincois sont amis, et s'aydent l'un a l'autre au besoin."
The same custom would seem to have prevailed in France until towards the end of the
seventeenth century. For example, in 1675, Louis XIV and the States General of
Holland, by mutual agreement, granted to Dutch and French fishermen the liberty,
undisturbed by their vessels of war, of fishing along the coasts of France, Holland, and
England. D'Hauterive et De Cussy, Traites de Commerce, pt. 1, vol. 2, p. 278. But by
the ordinances of 1681 and 1692, the practice was discontinued, because, Valin says,
of the faithless conduct of the enemies of France, who, abusing the good faith with
which she had always observed the treaties, habitually carried off her fishermen, while
their own fished in safety. 2 Valin sur l'Ordonnance de la Marine (1776) 689, 690; 2
Ortolan 52; De Boeck, § 192.
The doctrine which exempts coast fishermen, with their vessels and cargoes, from
capture as prize of war, has been familiar to the United States from the time of the War
of Independence.
On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his admiral,
informing him that the wish he had always had of alleviating, as far as he could, the
hardships of war, had directed his attention to that class of his subjects
Page 175 U. S. 690
which devoted itself to the trade of fishing, and had no other means of livelihood; that
he had thought that the example which he should give to his enemies, and which could
have no other source than the sentiments of humanity which inspired him, would
determine them to allow to fishermen the same facilities which he should consent to
grant, and that he had therefore given orders to the commanders of all his ships not to
disturb English fishermen, nor to arrest their vessels laden with fresh fish, even if not
caught by those vessels; provided they had no offensive arms, and were not proved to
have made any signals creating a suspicion of intelligence with the enemy, and the
admiral was directed to communicate the King's intentions to all officers under his
control. By a royal order in council of November 6, 1780, the former orders were
confirmed, and the capture and ransom, by a French cruiser, of The John and
Sarah, an English vessel, coming from Holland, laden with fresh fish, were pronounced
to be illegal. 2 Code des Prises (ed. 1784) 721, 901, 903.
Among the standing orders made by Sir James Marriott, Judge of the English High
Court of Admiralty, was one of April 11, 1780, by which it was
"ordered that all causes of prize of fishing boats or vessels taken from the enemy may
be consolidated in one monition, and one sentence or interlocutory, if under fifty tons
burthen, and not more than six in number."
Marriott's Formulary 4. But by the statements of his successor, and of both French and
English writers, it appears that England, as well as France, during the American
Revolutionary War, abstained from interfering with the coast fisheries. The Young
Jacob and Johanna, 1 C. Rob. 20; 2 Ortolan 53; Hall, § 148.
In the treaty of 1785 between the United States and Prussia, article 23 (which was
proposed by the American Commissioners, John Adams, Benjamin Franklin, and
Thomas Jefferson, and is said to have been drawn up by Franklin), provided that if war
should arise between the contracting parties,
"all women and children, scholars of every faculty, cultivators of the earth, artisans,
manufacturers, and fishermen,
Page 175 U. S. 691
unarmed and inhabiting unfortified towns, villages, or places, and in general all others
whose occupations are for the common subsistence and benefit of mankind, shall be
allowed to continue their respective employments, and shall not be molested in their
persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their
fields wasted by the armed force of the enemy, into whose power, by the events of war,
they may happen to fall; but if anything is necessary to be taken from them for the use
of such armed force, the same shall be paid for at a reasonable price."
8 Stat. 96; 1 Kent Com. 91, note; Wheaton, History of the Law of Nations, 306, 308.
Here was the clearest exemption from hostile molestation or seizure of the persons,
occupations, houses, and goods of unarmed fishermen inhabiting unfortified places.
The article was repeated in the later treaties between the United States and Prussia of
1799 and 1828. 8 Stat. 174, 384. And Dana, in a note to his edition of Wheaton's
International Laws, says:
"In many treaties and decrees, fishermen catching fish as an article of food are added
to the class of persons whose occupation is not to be disturbed in war."
Wheaton, International Law (8th ed.) § 345, note 168.
7
Since the United States became a nation, the only serious interruptions, so far as we
are informed, of the general recognition of the exemption of coast fishing vessels from
hostile capture, arose out of the mutual suspicions and recriminations of England and
France during the wars of the French Revolution.
In the first years of those wars, England having authorized the capture of French
fishermen, a decree of the French National Convention of October 2, 1793, directed
the executive power "to protest against this conduct, theretofore without example; to
reclaim the fishing boats seized; and, in case of refusal, to resort to reprisals." But in
July, 1796, the Committee of Public Safety ordered the release of English fishermen
seized under the former decree, "not considering them as prisoners of war." La Nostra
Segnora de la Piedad (1801) cited below; 2 De Cussy, Droit Maritime, 164, 165; 1
Masse, Droit Commercial (2d ed.) 266, 267.
Page 175 U. S. 692
On January 24, 1798, the English government by express order instructed the
commanders of its ships to seize French and Dutch fishermen with their boats. 6
Martens, Recueil des Traites (2d ed.) 505; 6 Schoell, Histoire des Traites, 119; 2
Ortolan, 53. After the promulgation of that order, Lord Stowell (then Sir William Scott)
in the High Court of Admiralty of England condemned small Dutch fishing vessels as
prize of war. In one case, the capture was in April, 1798, and the decree was made
November 13, 1798. The Young Jacob and Johanna, 1 C. Rob. 20. In another case,
the decree was made August 23, 1799. The Noydt Gedacht, 2 C. Rob. 137, note.
For the year 1800, the orders of the English and French governments and the
correspondence between them may be found in books already referred to. 6 Martens
503-512; 6 Schoell, 118-120; 2 Ortolan 53, 54. The doings for that year may be
summed up as follows: on March 27, 1800, the French government, unwilling to resort
to reprisals, reenacted the orders given by Louis XVI in 1780, above mentioned,
prohibiting any seizure by the French ships of English fishermen, unless armed or
proved to have made signals to the enemy. On May 30, 1800, the English government,
having received notice of that action of the French government, revoked its order of
January 24, 1798. But soon afterward, the English government complained that French
fishing boats had been made into fireboats at Flushing, as well as that the French
government had impressed and had sent to Brest, to serve in its flotilla, French
fishermen and their boats, even those whom the English had released on condition of
their not serving, and on January 21, 1801, summarily revoked its last order, and again
put in force its order of January 24, 1798. On February 16, 1801, Napoleon Bonaparte,
then First Consul, directed the French commissioner at London to return at once to
France, first declaring to the English government that its conduct,
"contrary to all the usages of civilized nations, and to the common law which governs
them, even in time of war, gave to the existing war a character of rage and bitterness
which destroyed even the relations usual in a loyal war, "
Page 175 U. S. 693
and "tended only to exasperate the two nations, and to put off the term of peace," and
that the French government, having always made it
"a maxim to alleviate as much as possible the evils of war, could not think, on its part,
of rendering wretched fishermen victims of a prolongation of hostilities, and would
abstain from all reprisals."
On March 16, 1801, the Addington Ministry, having come into power in England,
revoked the orders of its predecessors against the French fishermen, maintaining,
however, that "the freedom of fishing was nowise founded upon an agreement, but
upon a simple concession," that "this concession would be always subordinate to the
convenience of the moment," and that "it was never extended to the great fishery, or to
commerce in oysters or in fish." And the freedom of the coast fisheries was again
allowed on both sides. 6 Martens 514; 6 Schoell 121; 2 Ortolan, 54; Manning, Law of
Nations (Amos' ed.) 206.
Lord Stowell's judgment in The Young Jacob and Johanna, 1 C. Rob. 20, above cited,
was much relied on by the counsel for the United States, and deserves careful
consideration.
The vessel there condemned is described in the report as "a small Dutch fishing vessel
taken April, 1798, on her return from the Dogger bank to Holland," and Lord Stowell, in
delivering judgment, said:
"In former wars, it has not been usual to make captures of these small fishing vessels;
but this rule was a rule of comity only, and not of legal decision; it has prevailed from
views of mutual accommodation between neighboring countries, and from tenderness
to a poor and industrious order of people. In the present war, there has, I presume,
been sufficient reason for changing this mode of treatment, and as they are brought
before me for my judgment, they must be referred to the general principles of this Court;
they fall under the character and description of the last class of cases -- that is, of ships
constantly and exclusively employed in the enemy's trade."
And he added: "It is a further satisfaction to me in giving this judgment to observe that
the facts also bear strong marks of a false and fraudulent transaction."
8
Page 175 U. S. 694
Both the capture and the condemnation were within a year after the order of the English
government of January 24, 1798, instructing the commanders of its ships to seize
French and Dutch fishing vessels, and before any revocation of that order. Lord
Stowell's judgment shows that his decision was based upon the order of 1798, as well
as upon strong evidence of fraud. Nothing more was adjudged in the case.
But some expressions in his opinion have been given so much weight by English writers
that it may be well to examine them particularly. The opinion begins by admitting the
known custom in former wars not to capture such vessels, adding, however, "but this
was a rule of comity only, and not of legal decision." Assuming the phrase "legal
decision" to have been there used, in the sense in which courts are accustomed to use
it, as equivalent to "judicial decision," it is true that, so far as appears, there had been
no such decision on the point in England. The word "comity" was apparently used by
Lord Stowell as synonymous with courtesy or goodwill. But the period of a hundred
years which has since elapsed is amply sufficient to have enabled what originally may
have rested in custom or comity, courtesy or concession, to grow, by the general assent
of civilized nations, into a settled rule of international law. As well said by Sir James
Mackintosh:
"In the present century, a slow and silent, but very substantial, mitigation has taken
place in the practice of war, and in proportion as that mitigated practice has received
the sanction of time, it is raised from the rank of mere usage and becomes part of the
law of nations."
Discourse on the Law of Nations 38; 1 Miscellaneous Works, 360.
The French prize tribunals, both before and after Lord Stowell's decision, took a wholly
different view of the general question. In 1780, as already mentioned, an order in
council of Louis XVI had declared illegal the capture by a French cruiser of The John
and Sarah, an English vessel coming from Holland, laden with fresh fish. And on May
17, 1801, where a Portuguese fishing vessel, with her cargo of fish, having no more
crew than was needed for her management and for serving the nets, on a trip of several
days, had been captured
Page 175 U. S. 695
in April, 1801, by a French cruiser, three leagues off the coast of Portugal, the Council
of Prizes held that the capture was contrary to "the principles of humanity and the
maxims of international law," and decreed that the vessel, with the fish on board, or the
net proceeds of any that had been sold, should be restored to her master. La Nostra
Segnora de la Piedad, 25 Merlin, Jurisprudence, Prise Maritime, § 3, arts. 1, 3; S.C. 1
Pistoye et Duverdy, Prises Maritimes 331; 2 De Cussy, Droit Maritime 166.
The English government, soon afterwards, more than once unqualifiedly prohibited the
molestation of fishing vessels employed in catching and bringing to market fresh fish.
On May 23, 1806, it was
"ordered in council that all fishing vessels under Prussian and other colors, and
engaged for the purpose of catching fish and conveying them fresh to market, with their
crews, cargoes, and stores, shall not be molested on their fishing voyages and bringing
the same to market, and that no fishing vessels of this description shall hereafter be
molested. And the Right Honorable the Lords Commissioners of His Majesty's
Treasury, the Lords Commissioners of the Admiralty, and the Judge of the High Court
of Admiralty, are to give the necessary directions herein as to them may respectively
appertain."
5 C. Rob. 408. Again, in the order in council of May 2, 1810, which directed that
"all vessels which shall have cleared out from any port so far under the control of France
or her allies as that British vessels may not freely trade thereat, and which are employed
in the whale fishery, or other fishery of any description, save as hereinafter excepted,
and are returning, or destined to return either to the port from whence they cleared, or
to any other port or place at which the British flag may not freely trade, shall be captured
and condemned together with their stores and cargoes, as prize to the captors,"
there were excepted "vessels employed in catching and conveying fish fresh to market,
such vessels not being fitted or provided for the curing of fish." Edw.Adm. appx. L.
Wheaton, in his Digest of the Law of Maritime Captures and Prizes, published in 1815,
wrote:
"It has been usual
Page 175 U. S. 696
in maritime wars to exempt from capture fishing boats and their cargoes, both from
views of mutual accommodation between neighboring countries, and from tenderness
to a poor and industrious order of people. This custom, so honorable to the humanity
of civilized nations, has fallen into disuse, and it is remarkable that both France and
England mutually reproach each other with that breach of good faith which has finally
abolished it."
9
Wheaton, Captures, c. 2, § 18.
This statement clearly exhibits Wheaton's opinion that the custom had been a general
one, as well as that it ought to remain so. His assumption that it had been abolished by
the differences between France and England at the close of the last century was hardly
justified by the state of things when he wrote, and has not since been borne out.
During the wars of the French Empire, as both French and English writers agree, the
coast fisheries were left in peace. 2 Ortolan 54; De Boeck § 193; Hall § 148. De Boeck
quaintly and truly adds, "and the incidents of 1800 and of 1801 had no morrow -
- n'eurent pas de lendemain."
In the war with Mexico, in 1846, the United States recognized the exemption of coast
fishing boats from capture. In proof of this, counsel have referred to records of the Navy
Department, which this Court is clearly authorized to consult upon such a
question. Jones v. United States, 137 U. S. 202; Underhill v. Hernandez, 168 U. S.
250, 168 U. S. 253.
By those records, it appears that Commodore Conner, commanding the Home
Squadron blockading the east coast of Mexico, on May 14, 1846, wrote a letter from
the shipCumberland, off Brazos Santiago, near the southern point of Texas, to Mr.
Bancroft, the Secretary of the Navy, enclosing a copy of the commodore's "instructions
to the commanders of the vessels of the Home Squadron, showing the principles to be
observed in the blockade of the Mexican ports," one of which was that "Mexican boats
engaged in fishing on any part of the coast will be allowed to pursue their labors
unmolested," and that, on June 10, 1846, those instructions were approved by the Navy
Department, of which Mr. Bancroft was still the head, and continued to be until he was
appointed Minister to
Page 175 U. S. 697
England in September following. Although Commodore Conner's instructions and the
Department's approval thereof do not appear in any contemporary publication of the
government, they evidently became generally known at the time, or soon after, for it is
stated in several treatises on international law (beginning with Ortolan's second edition,
published in 1853) that the United States in the Mexican war permitted the coast
fishermen of the enemy to continue the free exercise of their industry. 2 Ortolan (2d
ed.) 49, note; (4th ed.) 55; 4 Calvo (5th ed.) § 2372; De Boeck § 194; Hall (4th ed.) §
148.
As qualifying the effect of those statements, the counsel for the United States relied on
a proclamation of Commodore Stockton, commanding the Pacific Squadron, dated
August 20, 1846, directing officers under his command to proceed immediately to
blockade the ports of Mazatlan and San Blas, on the west coast of Mexico, and saying
to them,
"All neutral vessels that you may find there you will allow twenty days to depart, and
you will make the blockade absolute against all vessels, except armed vessels of
neutral nations. You will capture all vessels under the Mexican flag that you may be
able to take."
Navy Reports of 1846, pp. 673, 674. But there is nothing to show that Commodore
Stockton intended, or that the government approved, the capture of coast fishing
vessels.
On the contrary, General Halleck, in the preface to his work on International Law, or
Rules Regulating the Intercourse of states in Peace and War, published in 1861, says
that he began that work during the war between the United States and Mexico "while
serving on the staff of the commander of the Pacific Squadron," and "often required to
give opinions on questions of international law growing out of the operations of the war."
Had the practice of the blockading squadron on the west coast of Mexico during that
war, in regard to fishing vessels, differed from that approved by the Navy Department
on the east coast, General Halleck could hardly have failed to mention it when stating
the prevailing doctrine upon the subject as follows:
Page 175 U. S. 698
"Fishing boats have also, as a general rule, been exempted from the effects of
hostilities. As early as 1521, while war was raging between Charles V and Francis,
ambassadors from these two sovereigns met at Calais, then English, and agreed that,
whereas the herring fishery was about to commence, the subjects of both belligerents
engaged in this pursuit should be safe and unmolested by the other party, and should
have leave to fish as in time of peace. In the war of 1800, the British and French
governments issued formal instructions exempting the fishing boats of each other's
subjects from seizure. This order was subsequently rescinded by the British
government on the alleged ground that some French fishing boats were equipped as
gunboats, and that some French fishermen who had been prisoners in England had
violated their parole not to serve, and had gone to join the French fleet at Brest. Such
excuses were evidently mere pretexts, and after some angry discussions had taken
place on the subject, the British restriction was withdrawn and the freedom of fishing
was again allowed on both sides. French writers consider this exemption as an
established principle of the modern law of war, and it has been so recognized in the
French courts, which have restored such vessels when captured by French cruisers."
Halleck (1st ed.) c. 20, § 23.
10
That edition was the only one sent out under the author's own auspices except an
abridgment, entitled "Elements of International Law and the Law of War," which he
published in 1866, as he said in the preface, to supply a suitable textbook for instruction
upon the subject, "not only in our colleges, but also in our two great national schools --
the Military and Naval Academies." In that abridgment, the statement as to fishing boats
was condensed as follows:
"Fishing boats have also, as a general rule, been exempted from the effects of
hostilities. French writers consider this exemption as an established principle of the
modern law of war, and it has been so recognized in the French courts, which have
restored such vessels when captured by French cruisers."
Halleck's Elements, c. 20, § 21.
In the treaty of peace between the United States and Mexico,
Page 175 U. S. 699
in 1848, were inserted the very words of the earlier treaties with Prussia, already
quoted, forbidding the hostile molestation or seizure in time of war of the persons,
occupations, houses, or goods of fishermen. 9 Stat. 939, 940.
Wharton's Digest of the International Law of the United States, published by authority
of Congress in 1886 and 1887, embodies General Halleck's fuller statement, above
quoted, and contains nothing else upon the subject. 3 Whart. Int.Law Dig. § 345, p.
315; 2 Halleck (Eng. eds. 1873 and 1878) p. 151.
France in the Crimean war in 1854, and in her wars with Italy in 1859 and with Germany
in 1870, by general orders, forbade her cruisers to trouble the coast fisheries or to seize
any vessel or boat engaged therein unless naval or military operations should make it
necessary. Calvo, § 2372; Hall, § 148; 2 Ortolan (4th ed.) 449; 10 Revue de Droit
Internationale (1878) 399.
Calvo says that, in the Crimean War,
"notwithstanding her alliance with France and Italy, England did not follow the same
line of conduct, and her cruisers in the Sea of Azof destroyed the fisheries, nets, fishing
implements, provisions, boats, and even the cabins of the inhabitants of the coast."
Calvo § 2372. And a Russian writer on prize law remarks that those depredations,
"having brought ruin on poor fishermen and inoffensive traders, could not but leave a
painful impression on the minds of the population, without impairing in the least the
resources of the Russian government."
Katchenovsky (Pratt's ed.) 148. But the contemporaneous reports of the English naval
officers put a different face on the matter by stating that the destruction in question was
part of a military measure, conducted with the cooperation of the French ships, and
pursuant to instructions of the English admiral
"to clear the seaboard of all fish stores, all fisheries and mills, on a scale beyond the
wants of the neighboring population, and indeed of all things destined to contribute to
the maintenance of the enemy's army in the Crimea,"
and that the property destroyed consisted of large fishing establishments and
storehouses of the Russian government, numbers of heavy launches, and enormous
quantities of nets and gear, salted fish, corn,
Page 175 U. S. 700
and other provisions intended for the supply of the Russian army. United Service
Journal of 1855, pt. 3, pp. 108-112.
Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing
vessels employed in catching and bringing to market fresh fish, no instance has been
found in which the exemption from capture of private coast fishing vessels honestly
pursuing their peaceful industry has been denied by England or by any other nation.
And the Empire of Japan (the last state admitted into the rank of civilized nations), by
an ordinance promulgated at the beginning of its war with China in August, 1894,
established prize courts and ordained that "the following enemy's vessels are exempt
from detention," including in the exemption "boats engaged in coast fisheries," as well
as "ships engaged exclusively on a voyage of scientific discovery, philanthrophy, or
religious mission." Takahashi, International Law 11, 178.
International law is part of our law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction as often as questions of right depending
upon it are duly presented for their determination. For this purpose, where there is no
treaty and no controlling executive or legislative act or judicial decision, resort must be
had to the customs and usages of civilized nations, and, as evidence of these, to the
works of jurists and commentators who by years of labor, research, and experience
have made themselves peculiarly well acquainted with the subjects of which they treat.
Such works are resorted to by judicial tribunals not for the speculations of their authors
concerning what the law ought to be, but for trustworthy evidence of what the law really
is. Hilton v. Guyot, 159 U. S. 113, 159 U. S. 163-164, 159 U. S. 214-215.
11
Wheaton places among the principal sources international law
"text writers of authority, showing what is the approved usage of nations, or the general
opinion respecting their mutual conduct, with the definitions and modifications
introduced by general consent."
As to these, he forcibly observes:
"Without wishing to exaggerate the importance of these writers or to substitute, in any
case, their authority for the principles of reason, it may be affirmed that they are
generally
Page 175 U. S. 701
impartial in their judgment. They are witnesses of the sentiments and usages of civilized
nations, and the weight of their testimony increases every time that their authority is
invoked by statesmen, and every year that passes without the rules laid down in their
works being impugned by the avowal of contrary principles."
Wheaton, International Law (8th ed.), § 15.
Chancellor Kent says:
"In the absence of higher and more authoritative sanctions, the ordinances of foreign
states, the opinions of eminent statesmen, and the writings of distinguished jurists are
regarded as of great consideration on questions not settled by conventional law. In
cases where the principal jurists agree, the presumption will be very great in favor of
the solidity of their maxims, and no civilized nation that does not arrogantly set all
ordinary law and justice at defiance will venture to disregard the uniform sense of the
established writers on international law."
1 Kent, Com. 18.
It will be convenient, in the first place, to refer to some leading French treatises on
international law, which deal with the question now before us, not as one of the law of
France only, but as one determined by the general consent of civilized nations.
"Enemy ships," say Pistoye and Duverdy, in their Treatise on Maritime Prizes,
published in 1855,
"are good prize. Not all, however, for it results from the unanimous accord of the
maritime powers that an exception should be made in favor of coast fishermen. Such
fishermen are respected by the enemy so long as they devote themselves exclusively
to fishing."
1 Pistoye et Duverdy, Tit. 6, c. 1, p. 314.
De Cussy, in his work on the Phases and Leading cases of the Maritime Law of Nations
--Phases et Causes Celebres du Droit Maritime des Nations -- published in 1856,
affirms in the clearest language the exemption from capture of fishing boats, saying, in
lib. 1, Tit. 3, § 36, that
"in time of war, the freedom of fishing is respected by belligerents; fishing boats are
considered as neutral; in law, as in principle, they are not subject either to capture or to
confiscation,"
and that in lib. 2, c. 20, he will state "several facts and several decisions
Page 175 U. S. 702
which prove that the perfect freedom and neutrality of fishing boats are not illusory." 1
De Cussy, p. 291. And in the chapter so referred to, entitled De la Liberte et de la
Neutralite Parfaite de la Peche, besides references to the edicts and decisions in
France during the French Revolution, is this general statement:
"If one consulted only positive international law -- 1e droit des gens positif -- [by which
is evidently meant international law expressed in treaties, decrees, or other public acts,
as distinguished from what may be implied from custom or usage], fishing boats would
be subject, like all other trading vessels, to the law of prize; a sort of tacit agreement
among all European nations frees them from it, and several official declarations have
confirmed this privilege in favor of 'a class of men whose hard and ill rewarded labor,
commonly performed by feeble and aged hands, is so foreign to the operations of war.'"
2 De Cussy 164, 165.
Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la
Mer, published in 1864, after stating the general rule that the vessels and cargoes of
subjects of the enemy are lawful prize, says:
"Nevertheless, custom admits an exception in favor of boats engaged in the coast
fishery; these boats, as well as their crews, are free from capture and exempt from all
hostilities. The coast-fishing industry is, in truth, wholly pacific, and of much less
importance in regard to the national wealth that it may produce than maritime
commerce or the great fisheries. Peaceful and wholly inoffensive, those who carry it
12
on, among whom women are often seen, may be called the harvesters of the territorial
seas, since they confine themselves to gathering in the products thereof; they are for
the most part poor families who seek in this calling hardly more than the means of
gaining their livelihood."
2 Ortolan 51. Again, after observing that there are very few solemn public treaties which
make mention of the immunity of fishing boats in time of war, he says:
"From another point of view, the custom which sanctions this immunity is not so general
that it can be considered as making an absolute international rule; but it has been so
often put in practice, and, besides, it accords so well with the rule in use in wars on
Page 175 U. S. 703
land, in regard to peasants and husbandmen, to whom coast fishermen may be likened,
that it will doubtless continue to be followed in maritime wars to come."
2 Ortolan 55.
No international jurist of the present day has a wider or more deserved reputation than
Calvo, who, though writing in French, is a citizen of the Argentine Republic employed
in its diplomatic service abroad. In the fifth edition of his great work on international law,
published in 1896, he observes, in § 2366, that the international authority of decisions
in particular cases by the prize courts of France, of England, and of the United States
is lessened by the fact that the principles on which they are based are largely derived
from the internal legislation of each country, and yet the peculiar character of maritime
wars, with other considerations, gives to prize jurisprudence a force and importance
reaching beyond the limits of the country in which it has prevailed. He therefore
proposes here to group together a number of particular cases proper to serve as
precedents for the solution of grave questions of maritime law in regard to the capture
of private property as prize of war. Immediately, in § 2367, he goes on to say:
"Notwithstanding the hardships to which maritime wars subject private property,
notwithstanding the extent of the recognized rights of belligerents, there are generally
exempted, from seizure and capture, fishing vessels."
In the next section, he adds: "This exception is perfectly justiciable -- Cette exception
est parfaitement justiciable" -- that is to say, belonging to judicial jurisdiction or
cognizance. Littre, Dist. voc. Justiciable; Hans v. Louisiana, 134 U. S. 1, 134 U. S. 15.
Calvo then quotes Ortolan's description, above cited, of the nature of the coast-fishing
industry, and proceeds to refer in detail to some of the French precedents, to the acts
of the French and English governments in the times of Louis XVI and of the French
Revolution, to the position of the United States in the war with Mexico, and of France
in later wars, and to the action of British cruisers in the Crimean war. And he concludes
his discussion of the subject, in § 2373, by affirming the exemption of the coast fishery
and pointing out the distinction in this regard between the coast fishery and
Page 175 U. S. 704
what he calls the great fishery, for cod, whales, or seals, as follows:
"The privilege of exemption from capture, which is generally acquired by fishing vessels
plying their industry near the coasts, is not extended in any country to ships employed
on the high sea in what is called the great fishery, such as that for the cod, for the whale
or the sperm whale, or for the seal or sea calf. These ships are, in effect, considered
as devoted to operations which are at once commercial and industrial -- Ces navires
sont en effect consideres comme adonnes a des operations a la fois commerciales et
industrielles."
The distinction is generally recognized. 2 Ortolan 54; De Boeck § 196; Hall, § 148. See
also The Susa, 2 C. Rob. 251; The Johan, Edw.Adm. 275, and appx. L.
The modern German books on international law, cited by the counsel for the appellants,
treat the custom by which the vessels and implements of coast fishermen are exempt
from seizure and capture as well established by the practice of nations. Heffter § 137;
2 Kalterborn § 237, p. 480; Bluntschli § 667; Perels § 37, p. 217.
De Boeck, in his work on Enemy Private Property under Enemy's Flag -- De la Propriete
Privee Ennemie sous Pavillon Ennemi -- published in 1882, and the only continental
treatise cited by the counsel for the United States, says in § 191:
"A usage very ancient, if not universal, withdraws from the right of capture enemy
vessels engaged in the coast fishery. The reason of this exception is evident; it would
have been too hard to snatch from poor fishermen the means of earning their bread. .
. . The exemption includes the boats, the fishing implements, and the cargo of fish."
Again, in § 195:
"It is to be observed that very few treatises sanction in due form this immunity of the
coast fishery. . . . There is, then, only a custom. But what is its character? Is it so fixed
and general that it can be raised to the rank of a positive and formal rule of international
law?"
13
After discussing the statements of other writers, he approves the opinion of Ortolan (as
expressed in the last sentence above quoted from his work) and says that, at bottom,
it differs by a shade only from that formulated by Calvo and by some of the German
jurists, and that
"it is more exact,
Page 175 U. S. 705
without ignoring the imperative character of the humane rule in question -- elle est plus
exacte, sans meconnaitre le caractere imperatif de la regle d'humanite dont il s'agit."
And in § 196 he defines the limits of the rule as follows:
"But the immunity of the coast fishery must be limited by the reasons which justify it.
The reasons of humanity and of harmlessness -- les raisons d'humanite et d'innocuite -
- which militate in its favor do not exist in the great fishery, such as the cod fishery;
ships engaged in that fishery devote themselves to truly commercial operations, which
employ a large number of seamen. And these same reasons cease to be applicable to
fishing vessels employed for a warlike purpose, to those which conceal arms, or which
exchange signals of intelligence with ships of war; but only those taken in the fact can
be rigorously treated; to allow seizure by way of preventive would open the door to
every abuse, and would be equivalent to a suppression of the immunity."
Two recent English text writers cited at the bar (influenced by what Lord Stowell said a
century since) hesitate to recognize that the exemption of coast fishing vessels from
capture has now become a settled rule of international law. Yet they both admit that
there is little real difference in the views, or in the practice, of England and of other
maritime nations, and that no civilized nation at the present day would molest coast
fishing vessels so long as they were peaceably pursuing their calling and there was no
danger that they or their crews might be of military use to the enemy. Hall, in § 148 of
the fourth edition of his Treatise on International Law, after briefly sketching the history
of the positions occupied by France and England at different periods, and by the United
States in the Mexican war, goes on to say:
"In the foregoing facts there is nothing to show that much real difference has existed in
the practice of the maritime countries. England does not seem to have been unwilling
to spare fishing vessels so long as they are harmless, and it does not appear that any
state has accorded them immunity under circumstances of inconvenience to itself. It is
likely that all nations would now refrain from molesting them as a general rule, and
would capture
Page 175 U. S. 706
them so soon as any danger arose that they or their crews might be of military use to
the enemy, and it is also likely that it is impossible to grant them a more distinct
exemption."
So, T. J.Lawrence, in § 206 of his Principles of International Law, says:
"The difference between the English and the French view is more apparent than real,
for no civilized belligerent would now capture the boats of fishermen plying their
avocation peaceably in the territorial waters of their own state, and no jurist would
seriously argue that their immunity must be respected if they were used for warlike
purposes, as were the smacks belonging to the northern ports of France when Great
Britain gave the order to capture them in 1800."
But there are writers of various maritime countries not yet cited too important to be
passed by without notice.
Jan Helenus Ferguson, Netherlands Minister to China, and previously in the naval and
in the colonial service of his country, in his Manual of International Law for the Use of
Navies, Colonies, and Consulates, published in 1882, writes:
"An exception to the usage of capturing enemy's private vessels at sea is the coast
fishery. . . . This principle of immunity from capture of fishing boats is generally adopted
by all maritime powers, and in actual warfare they are universally spared so long as
they remain harmless."
2 Ferguson § 212.
Ferdinand Attlmayr, captain in the Austrian Navy, in his Manual for Naval Officers,
published at Vienna in 1872 under the auspices of Admiral Tegetthoff, says:
"Regarding the capture of enemy property, an exception must be mentioned, which is
a universal custom. Fishing vessels which belong to the adjacent coast, and whose
business yields only a necessary livelihood, are, from considerations of humanity,
universally excluded from capture."
1 Attlmayr 61.
Ignacio de Megrin, First Official of the Spanish Board of Admiralty, in his Elementary
Treatise on Maritime International Law, adopted by royal order as a textbook in the
14
naval schools of Spain and published at Madrid in 1873, concludes his chapter "Of the
lawfulness of prizes" with these words:
"It remains to be added that the custom of all civilized peoples excludes from capture
and from all kind of hostility the
Page 175 U. S. 707
fishing vessels of the enemy's coasts, considering this industry as absolutely
inoffensive, and deserving, from its hardships and usefulness, of this favorable
exception. It has been thus expressed in very many international conventions, so that
it can be deemed an incontestable principle of law at least among enlightened nations."
Negrin, Tit. 3, c. 1, § 310.
Carlos Testa, captain in the Portuguese Navy and professor in the naval school at
Lisbon, in his work on Public International Law, published in French at Paris in 1886,
when discussing the general right of capturing enemy ships, says:
"Nevertheless, in this, customary law establishes an exception of immunity in favor of
coast fishing vessels. Fishing is so peaceful an industry, and is generally carried on by
so poor and so hardworking a class of men, that it is likened, in the territorial waters of
the enemy's country, to the class of husbandmen who gather the fruits of the earth for
their livelihood. The examples and practice generally followed establish this humane
and beneficent exception as an international rule, and this rule may be considered as
adopted by customary law and by all civilized nations."
Testa, pt. 3, c. 2, in 18 Bibliotheque International et Diplomatique, pp. 152, 153.
No less clearly and decisively speaks the distinguished Italian jurist, Pasquale Fiore, in
the enlarged edition of his exhaustive work on Public International Law, published at
Paris in 1885-1886, saying:
"The vessels of fishermen have been generally declared exempt from confiscation
because of the eminently peaceful object of their humble industry and of the principles
of equity and humanity. The exemption includes the vessel, the implements of fishing,
and the cargo resulting from the fishery. This usage, eminently humane, goes back to
very ancient times, and although the immunity of the fishery along the coasts may not
have been sanctioned by treaties, yet it is considered today as so definitely established
that the inviolability of vessels devoted to that fishery is proclaimed by the publicists as
a positive rule of international law, and is generally respected by the nations.
Consequently we shall lay down the following rule: (a) vessels belonging to citizens of
the enemy state, and devoted to fishing
Page 175 U. S. 708
along the coasts, cannot be subject to capture; (b) such vessels, however, will lose all
right of exemption when employed for a warlike purpose; (c) there may nevertheless
be subjected to capture vessels devoted to the great fishery in the ocean, such as those
employed in the whale fishery, or in that for seals or sea calves."
3 Fiore § 1421.
This review of the precedents and authorities on the subject appears to us abundantly
to demonstrate that, at the present day, by the general consent of the civilized nations
of the world, and independently of any express treaty or other public act, it is an
established rule of international law, founded on considerations of humanity to a poor
and industrious order of men, and of the mutual convenience of belligerent states, that
coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed
and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are
exempt from capture as prize of war.
The exemption, of course, does not apply to coast fishermen or their vessels if
employed for a warlike purpose, or in such a way as to give aid or information to the
enemy, nor when military or naval operations create a necessity to which all private
interests must give way.
Nor has the exemption been extended to ships or vessels employed on the high sea in
taking whales or seals or cod or other fish which are not brought fresh to market, but
are salted or otherwise cured and made a regular article of commerce.
This rule of international law is one which prize courts administering the law of nations
are bound to take judicial notice of, and to give effect to, in the absence of any treaty
or other public act of their own government in relation to the matter.
Calvo, in a passage already quoted, distinctly affirms that the exemption of coast fishing
vessels from capture is perfectly justiciable, or, in other words, of judicial jurisdiction or
cognizance. Calvo § 2368. Nor are judicial precedents wanting in support of the view
that this exemption, or a somewhat analogous one, should be recognized and declared
by a prize court.
Page 175 U. S. 709
15
By the practice of all civilized nations, vessels employed only for the purposes of
discovery or science are considered as exempt from the contingencies of war, and
therefore not subject to capture. It has been usual for the government sending out such
an expedition to give notice to other powers, but it is not essential. 1 Kent, Com. 91,
note; Halleck, c. 20, § 22; Calvo § 2376; Hall § 138.
In 1813, while the United States were at war with England, an American vessel on her
voyage from Italy to the United States was captured by an English ship, and brought
into Halifax, in Nova Scotia, and, with her cargo, condemned as lawful prize by the
court of vice admiralty there. But a petition for the restitution of a case of paintings and
engravings which had been presented to and were owned by the Academy of Arts in
Philadelphia was granted by Dr. Croke, the judge of that court, who said:
"The same law of nations which prescribes that all property belonging to the enemy
shall be liable to confiscation has likewise its modifications and relaxations of that rule.
The arts and sciences are admitted amongst all civilized nations as forming an
exception to the severe rights of warfare, and as entitled to favor and protection. They
are considered not as the peculium of this or of that nation, but as the property of
mankind at large, and as belonging to the common interests of the whole species."
And he added that there had been "innumerable cases of the mutual exercise of this
courtesy between nations in former wars." The Marquis de Somerueles, Stewart Adm.
(Nova Scotia) 445, 482.
In 1861, during the war of the Rebellion, a similar decision was made in the District
Court of the United States for the Eastern District of Pennsylvania in regard to two
cases of books belonging and consigned to a university in North Carolina. Judge
Cadwalader, in ordering these books to be liberated from the custody of the marshal
and restored to the agent of the university, said:
"Though this claimant, as the resident of a hostile district, would not be entitled to
restitution of the subject of a commercial adventure in books, the purpose of the
shipment in question gives to it a different
Page 175 U. S. 710
character. The United States, in prosecuting hostilities for the restoration of their
constitutional authority, are compelled incidentally to confiscate property captured at
sea, of which the proceeds would otherwise increase the wealth of that district. But the
United States are not at war with literature in that part of their territory."
He then referred to the decision in Nova Scotia, and to the French decisions upon cases
of fishing vessels, as precedents for the decree which he was about to pronounce, and
he added that, without any such precedents, he should have had no difficulty in
liberating these books.The Amelia, 4 Philadelphia 417.
In Brown v. United States, 8 Cranch 110, there are expressions of Chief Justice
Marshall which, taken by themselves, might seem inconsistent with the position above
maintained, of the duty of a prize court to take judicial notice of a rule of international
law, established by the general usage of civilized nations, as to the kind of property
subject to capture. But the actual decision in that case, and the leading reasons on
which it was based, appear to us rather to confirm our position. The principal question
there was whether personal property of a British subject, found on land in the United
States at the beginning of the last war with Great Britain, could lawfully be condemned
as enemy's property on a libel filed by the attorney of the United States, without a
positive act of Congress. The conclusion of the Court was
"that the power of confiscating enemy property is in the legislature, and that the
legislature has not yet declared its will to confiscate property which was within our
territory at the declaration of war."
8 Cranch 12 U. S. 129. In showing that the declaration of war did not, of itself, vest the
Executive with authority to order such property to be confiscated, the Chief Justice
relied on the modern usages of nations, saying:
"The universal practice of forbearing to seize and confiscate debts and credits, the
principle universally received that the right to them revives on the restoration of peace,
would seem to prove that war is not an absolute confiscation of this property, but simply
confers the right of confiscation,"
and again:
"The modern rule, then, would seem to be that tangible property
Page 175 U. S. 711
belonging to an enemy, and found in the country at the commencement of war, ought
not to be immediately confiscated, and in almost every commercial treaty, an article is
inserted stipulating for the right to withdraw such property."
8 Cranch 12 U. S. 123-125. The decision that enemy property on land, which by the
modern usage of nations is not subject to capture as prize of war, cannot be
condemned by a prize court, even by direction of the Executive, without express
16
authority from Congress appears to us to repel any inference that coast fishing vessels,
which are exempt by the general consent of civilized nations from capture and which
no act of Congress or order of the President has expressly authorized to be taken and
confiscated, must be condemned by a prize court for want of a distinct exemption in a
treaty or other public act of the government.
To this subject in more than one aspect are singularly applicable the words uttered by
Mr. Justice Strong, speaking for this Court:
"Undoubtedly no single nation can change the law of the sea. The law is of universal
obligation, and no statute of one or two nations can create obligations for the world.
Like all the laws of nations, it rests upon the common consent of civilized communities.
It is of force not because it was prescribed by any superior power, but because it has
been generally accepted as a rule of conduct. Whatever may have been its origin,
whether in the usages of navigation, or in the ordinances of maritime states, or in both,
it has become the law of the sea only by the concurrent sanction of those nations who
may be said to constitute the commercial world. Many of the usages which prevail, and
which have the force of law, doubtless originated in the positive prescriptions of some
single state, which were at first of limited effect, but which, when generally accepted,
became of universal obligation."
"This is not giving to the statutes of any nation extraterritorial effect. It is not treating
them as general maritime laws, but it is recognition of the historical fact that, by common
consent of mankind these rules have been acquiesced in as of general obligation. Of
that fact we think we may take judicial notice. Foreign municipal laws
Page 175 U. S. 712
must indeed be proved as facts, but it is not so with the law of nations."
The Scotia, 14 Wall. 170, 81 U. S. 187-188.
The position taken by the United States during the recent war with Spain was quite in
accord with the rule of international law, now generally recognized by civilized nations,
in regard to coast fishing vessels.
On April 21, 1898, the Secretary of the Navy gave instructions to Admiral Sampson,
commanding the North Atlantic Squadron, to "immediately institute a blockade of the
north coast of Cuba, extending from Cardenas on the east to Bahia Honda on the west."
Bureau of Navigation Report of 1898, appx. 175. The blockade was immediately
instituted accordingly. On April 22, the President issued a proclamation declaring that
the United States had instituted and would maintain that blockade "in pursuance of the
laws of the United States, and the law of nations applicable to such cases." 30 Stat.
1769. And by the act of Congress of April 25, 1898, c. 189, it was declared that the war
between the United States and Spain existed on that day, and had existed since and
including April 21, 30 Stat. 364.
On April 26, 1898, the President issued another proclamation which, after reciting the
existence of the war as declared by Congress, contained this further recital:
"It being desirable that such war should be conducted upon principles in harmony with
the present views of nations and sanctioned by their recent practice."
This recital was followed by specific declarations of certain rules for the conduct of the
war by sea, making no mention of fishing vessels. 30 Stat. 1770. But the proclamation
clearly manifests the general policy of the government to conduct the war in accordance
with the principles of international law sanctioned by the recent practice of nations.
On April 28, 1898 (after the capture of the two fishing vessels now in question), Admiral
Sampson telegraphed to the Secretary of the Navy as follows:
"I find that a large number of fishing schooners are attempting to get into Havana from
their fishing grounds near the Florida reefs and coasts. They are generally manned by
excellent seamen, belonging
Page 175 U. S. 713
to the maritime inscription of Spain, who have already served in the Spanish navy, and
who are liable to further service. As these trained men are naval reserves, most
valuable to the Spaniards as artillerymen, either afloat or ashore, I recommend that
they should be detained prisoners of war, and that I should be authorized to deliver
them to the commanding officer of the army at Key West."
To that communication the Secretary of the Navy, on April 30, 1898, guardedly
answered:
"Spanish fishing vessels attempting to violate blockade are subject, with crew, to
capture, and any such vessel or crew considered likely to aid enemy may be detained."
Bureau of Navigation Report of 1898, appx. 178. The admiral's dispatch assumed that
he was not authorized, without express order, to arrest coast fishermen peaceably
pursuing their calling, and the necessary implication and evident intent of the response
of the Navy Department were that Spanish coast fishing vessels and their crews should
17
not be interfered with so long as they neither attempted to violate the blockade nor were
considered likely to aid the enemy.
The Paquete Habana, as the record shows, was a fishing sloop of 25 tons burden,
sailing under the Spanish flag, running in and out of Havana, and regularly engaged in
fishing on the coast of Cuba. Her crew consisted of but three men, including the master,
and, according to a common usage in coast fisheries, had no interest in the vessel, but
were entitled to two-thirds of her catch, the other third belonging to her Spanish owner,
who, as well as the crew, resided in Havana. On her last voyage, she sailed from
Havana along the coast of Cuba, about two hundred miles, and fished for twenty-five
days off the cape at the west end of the island, within the territorial waters of Spain, and
was going back to Havana with her cargo of live fish when she was captured by one of
the blockading squadron on April 25, 1898. She had no arms or ammunition on board;
she had no knowledge of the blockade, or even of the war, until she was stopped by a
blockading vessel; she made no attempt to run the blockade, and no resistance at the
time of the capture; nor was there any evidence
Page 175 U. S. 714
whatever of likelihood that she or her crew would aid the enemy.
In the case of the Lola, the only differences in the facts were that she was a schooner
of 35 tons burden, and had a crew of six men, including the master; that, after leaving
Havana and proceeding some two hundred miles along the coast of Cuba, she went
on, about one hundred miles farther, to the coast of Yucatan, and there fished for eight
days, and that, on her return, when near Bahia Honda on the coast of Cuba, she was
captured, with her cargo of live fish, on April 27, 1898. These differences afford no
ground for distinguishing the two cases.
Each vessel was of a moderate size, such as is not unusual in coast fishing smacks,
and was regularly engaged in fishing on the coast of Cuba. The crew of each were few
in number, had no interest in the vessel, and received, in return for their toil and
enterprise, two-thirds of her catch, the other third going to her owner by way of
compensation for her use. Each vessel went out from Havana to her fishing ground and
was captured when returning along the coast of Cuba. The cargo of each consisted of
fresh fish, caught by her crew from the sea and kept alive on board. Although one of
the vessels extended her fishing trip across the Yucatan channel and fished on the
coast of Yucatan, we cannot doubt that each was engaged in the coast fishery, and not
in a commercial adventure, within the rule of international law.
The two vessels and their cargoes were condemned by the district court as prize of
war; the vessels were sold under its decrees, and it does not appear what became of
the fresh fish of which their cargoes consisted.
Upon the facts proved in either case, it is the duty of this Court, sitting as the highest
prize court of the United States and administering the law of nations, to declare and
adjudge that the capture was unlawful and without probable cause, and it is therefore,
in each case
Ordered, that the decree of the district court be reversed, and the proceeds of the sale
of the vessel, together with the proceeds of any sale of her cargo, be restored to the
claimant, with damages and costs.
Page 175 U. S. 715
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN and MR.
JUSTICE McKENNA, dissenting:
The district court held these vessels and their cargoes liable because not "satisfied that,
as a matter of law, without any ordinance, treaty, or proclamation, fishing vessels of
this class are exempt from seizure."
This Court holds otherwise not because such exemption is to be found in any treaty,
legislation, proclamation, or instruction granting it, but on the ground that the vessels
were exempt by reason of an established rule of international law applicable to them
which it is the duty of the court to enforce.
I am unable to conclude that there is any such established international rule, or that this
Court can properly revise action which must be treated as having been taken in the
ordinary exercise of discretion in the conduct of war.
In cannot be maintained "that modern usage constitutes a rule which acts directly upon
the thing itself by its own force, and not through the sovereign power." That position
was disallowed in Brown v. United States, 8 Cranch 110, 12 U. S. 128, and Chief
Justice Marshall said:
"This usage is a guide which the sovereign follows or abandons at his will. The rule,
like other precepts of morality, of humanity, and even of wisdom, is addressed to the
judgment of the sovereign, and although it cannot be disregarded by him without
obloquy, yet it may be disregarded. The rule is in its nature flexible. It is subject to
infinite modification. It is not an immutable rule of law, but depends on political
considerations which may continually vary."
The question in that case related to the confiscation of the property of the enemy on
land within our own territory, and it was held that property so situated could not be
confiscated without an act of Congress. The Chief Justice continued:
18
"Commercial nations in the situation of the United States have always a considerable
quantity of property in the possession of their neighbors. When war breaks out, the
question what shall be done with enemy property in our country is a
Page 175 U. S. 716
question rather of policy than of law. The rule which we apply to the property of our
enemy will be applied by him to the property of our citizens. Like all other questions of
policy, it is proper for the consideration of a department which can modify it at will, not
for the consideration of a department which can pursue only the law as it is written. It
is proper for the consideration of the legislature, not of the executive or judiciary."
This case involves the capture of enemy's property on the sea, and executive action,
and if the position that the alleged rule ex proprio vigore limits the sovereign power in
war be rejected, then I understand the contention to be that by reason of the existence
of the rule, the proclamation of April 26 must be read as if it contained the exemption
in terms, or the exemption must be allowed because the capture of fishing vessels of
this class was not specifically authorized.
The preamble to the proclamation stated, it is true, that it was desirable that the war
"should be conducted upon principles in harmony with the present views of nations and
sanctioned by their recent practice," but the reference was to the intention of the
government "not to resort to privateering, but to adhere to the rules of the Declaration
of Paris," and the proclamation spoke for itself. The language of the preamble did not
carry the exemption in terms, and the real question is whether it must be allowed
because not affirmatively withheld -- or, in other words, because such captures were
not in terms directed.
These records show that the Spanish sloop Paquete Habana "was captured as a prize
of war by the U.S.S. Castine" on April 25, and "was delivered" by
the Castine's commander "to Rear Admiral Wm. T. Sampson (commanding the North
Atlantic Squadron)," and thereupon "turned over" to a prize master with instructions to
proceed to Key West.
And that the Spanish schooner Lola "was captured as a prize of war by the
U.S.S. Dolphin," April 27, and "was delivered" by the Dolphin's commander "to Rear
Admiral Wm. T. Sampson (commanding the North Atlantic Squadron)," and thereupon
"turned over" to a prize master with instructions to proceed to Key West.
Page 175 U. S. 717
That the vessels were accordingly taken to Key West and there libeled, and that the
decrees of condemnation were entered against them May 30.
It is impossible to concede that the Admiral ratified these captures in disregard of
established international law and the proclamation, or that the President, if he had been
of opinion that there was any infraction of law or proclamation, would not have
intervened prior to condemnation.
The correspondence of April 28, 30, between the Admiral and the Secretary of the
Navy, quoted from in the principal opinion, was entirely consistent with the validity of
the captures.
The question put by the Admiral related to the detention as prisoners of war of the
persons manning the fishing schooners "attempting to get into Havana."
Noncombatants are not so detained except for special reasons. Sailors on board
enemy's trading vessels are made prisoners because of their fitness for immediate use
on ships of war. Therefore the Admiral pointed out the value of these fishing seamen
to the enemy, and advised their detention. The Secretary replied that if the vessels
referred to were "attempting to violate blockade," they were subject "with crew" to
capture, and also that they might be detained if "considered likely to aid enemy." The
point was whether these crews should be made prisoners of war. Of course, they would
be liable to be if involved in the guilt of blockade running, and the Secretary agreed that
they might be on the other ground in the Admiral's discretion.
All this was in accordance with the rules and usages of international law, with which,
whether in peace or war, the naval service has always been necessarily familiar.
I come then to examine the proposition
"that at the present day, by the general consent of the civilized nations of the world and
independently of any express treaty or other public act, it is an established rule of
international law, founded on considerations of humanity to a poor and industrious order
of men, and of the mutual convenience of belligerent states, that coast fishing vessels,
with their implements and supplies,
Page 175 U. S. 718
cargoes, and crews, unarmed, and honestly pursuing their peaceful calling of catching
and bringing in of fresh fish, are exempt from capture as prize of war."
This, it is said, is a rule
19
"which prize courts, administering the law of nations, are bound to take judicial notice
of, and to give effect to, in the absence of treaty or other public act of their own
government."
At the same time, it is admitted that the alleged exemption does not apply
"to coast fishermen or their vessels if employed for a warlike purpose or in such a way
as to give aid or information to the enemy, nor when military or naval operations create
a necessity to which all private interests must give way,"
and further that the exemption has not
"been extended to ships or vessels employed on the high sea in taking whales or seals,
or cod or other fish which are not brought fresh to market, but are salted or otherwise
cured and made a regular article of commerce."
It will be perceived that the exceptions reduce the supposed rule to very narrow limits,
requiring a careful examination of the facts in order to ascertain its applicability, and the
decision appears to me to go altogether too far in respect of dealing with captures
directed or ratified by the officer in command.
But were these two vessels within the alleged exemption? They were of twenty-five and
thirty-five tons burden, respectively. They carried large tanks in which the fish taken
were kept alive. They were owned by citizens of Havana, and the owners and the
masters and crew were to be compensated by shares of the catch. One of them had
been two hundred miles from Havana, off Cape San Antonio, for twenty-five days, and
the other for eight days off the coast of Yucatan. They belonged, in short, to the class
of fishing or coasting vessels of from five to twenty tons burden, and from twenty tons
upwards, which, when licensed or enrolled as prescribed by the Revised Statutes, are
declared to be vessels of the United States, and the shares of whose men, when the
vessels are employed in fishing, are regulated by statute. They were engaged in what
were substantially commercial ventures, and the mere fact that the fish were kept alive
by contrivances
Page 175 U. S. 719
for that purpose -- a practice of considerable antiquity -- did not render them any the
less an article of trade than if they had been brought in cured.
I do not think that, under the circumstances, the considerations which have operated to
mitigate the evils of war in respect of individual harvesters of the soil can properly be
invoked on behalf of these hired vessels as being the implements of like harvesters of
the sea. Not only so as to the owners, but as to the masters and crews. The principle
which exempts the husbandman and his instruments of labor exempts the industry in
which he is engaged, and is not applicable in protection of the continuance of
transactions of such character and extent as these.
In truth, the exemption of fishing craft is essentially an act of grace, and not a matter of
right, and it is extended or denied as the exigency is believed to demand.
It is, said Sir William Scott, "a rule of comity only, and not of legal decision."
The modern view is thus expressed by Mr. Hall:
"England does not seem to have been unwilling to spare fishing vessels so long as they
are harmless, and it does not appear that any state has accorded them immunity under
circumstances of inconvenience to itself. It is likely that all nations would now refrain
from molesting them as a general rule, and would capture them so soon as any danger
arose that they or their crews might be of military use to the enemy, and it is also likely
that it is impossible to grant them a more distinct exemption."
In the Crimean war, 1854-55, none of the orders in council, in terms, either exempted
or included fishing vessels, yet the allied squadrons swept the Sea of Azof of all craft
capable of furnishing the means of transportation, and the English admiral in the Gulf
of Finland directed the destruction of all Russian coasting vessels not of sufficient value
to be detained as prizes except "boats or small craft which may be found empty at
anchor, and not trafficking."
It is difficult to conceive of a law of the sea of universal obligation to which Great Britain
has not acceded. And I
Page 175 U. S. 720
am not aware of adequate foundation for imputing to this country the adoption of any
other than the English rule.
In his lectures on International Law at the Naval Law College, the late Dr. Freeman
Snow laid it down that the exemption could not be asserted as a rule of international
law. These lectures were edited by Commodore Stockton and published under the
direction of the Secretary of the Navy in 1895, and, by that department, in a second
edition, in 1898, so that in addition to the well known merits of their author, they possess
the weight to be attributed to the official imprimatur. Neither our treaties nor settled
practice are opposed to that conclusion.
20
In view of the circumstances surrounding the breaking out of the Mexican war,
Commodore Conner, commanding the Home Squadron, on May 14, 1846, directed his
officers, in respect of blockade, not to molest "Mexican boats engaged exclusively in
fishing on any part of the coast," presumably small boats in proximity to the shore, while
on the Pacific coast, Commodore Stockton, in the succeeding August, ordered the
capture of "all vessels under the Mexican flag."
The treaties with Prussia of 1785, 1799, and 1828, and of 1848 with Mexico, in
exempting fishermen, "unarmed and inhabiting unfortified towns, villages, or places,"
did not exempt fishing vessels from seizure as prize, and these captures evidence the
convictions entertained and acted on in the late war with Spain.
In is needless to review the speculations and repetitions of the writers on international
law. Ortolan, De Boeck, and others admit that the custom relied on as consecrating the
immunity is not so general as to create an absolute international rule; Heffter, Calvo,
and others are to the contrary. Their lucubrations may be persuasive, but not
authoritative.
In my judgment, the rule is that exemption from the rigors of war is in the control of the
Executive. He is bound by no immutable rule on the subject. It is for him to apply, or to
modify, or to deny altogether such immunity as may have been usually extended.
Page 175 U. S. 721
Exemptions may be designated in advance or granted according to circumstances, but
carrying on war involves the infliction of the hardships of war, at least to the extent that
the seizure or destruction of enemy's property on sea need not be specifically
authorized in order to be accomplished.
Being of opinion that these vessels were not exempt as matter of law, I am constrained
to dissent from the opinion and judgment of the Court, and my brothers HARLAN and
McKENNA concur in this dissent.
-----
On January 29, 1900, the Court in each case, on motion of the Solicitor General in
behalf of the United States, and after argument of counsel thereon, and to secure the
carrying out of the opinion and decree of this Court according to their true meaning and
intent, ordered that the decree be so modified as to direct that the damages to be
allowed shall be compensatory only, and not punitive.
 NORTH SEA CONTINENTAL SHELF CASES
Judgment of 20 February 1969
The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf
cases.
The dispute, which was submitted to the Court on 20 February 1967, related to the
delimitation of the continental shelf between the Federal Republic of Germany and
Denmark on the one hand, and between the Federal Republic of Germany and the
Netherlands on the other. The Parties asked the Court to state the principles and rules
of international law applicable, and undertook thereafter to carry out the delimitations
on that basis.
The Court rejected the contention of Denmark and the Netherlands to the effect that
the delimitations in question had to be carried out in accordance with the principle of
equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental
Shelf, holding:
- that the Federal Republic, which had not ratified the Convention, was not legally
bound by the provisions of Article 6;
- that the equidistance principle was not a necessary consequence of the general
concept of continental shelf rights, and was not a rule of customary international law.
The Court also rejected the contentions of the Federal Republic in so far as these
sought acceptance of the principle of an apportionment of the continental shelf into just
and equitable shares. It held that each Party had an original right to those areas of the
continental shelf which constituted the natural prolongation of its land territory into and
under the sea. It was not a question of apportioning or sharing out those areas, but of
delimiting them.
The Court found that the boundary lines in question were to be drawn by agreement
between the Parties and in accordance with equitable principles, and it indicated certain
factors to be taken into consideration for that purpose. It was now for the Parties to
negotiate on the basis of such principles, as they have agreed to do.
The proceedings, relating to the delimitation as between the Parties of the areas of the
North Sea continental shelf appertaining to each of them, were instituted on 20
February 1967 by the communication to the Registry of the Court of two Special
Agreements, between Denmark and the Federal Republic and the Federal Republic
and the Netherlands respectively. By an Order of 26 April 1968, the Court joined the
proceedings in the two cases.
The Court decided the two cases in a single Judgment, which it adopted by eleven
votes to six. Amongst the Members of the Court concurring in the Judgment, Judge Sir
Muhammad Zafrulla Khan appended a declaration; and President Bustamante y Rivero
and Judges Jessup, Padilla Nervo and Ammoun appended separate opinions. In the
case of the non-concurring Judges, a declaration of his dissent was appended by Judge
Bengzon; and Vice-President Koretsky, together with Judges Tanaka, Morelli and
Lachs, and Judge ad hoc Sorensen, appended dissenting opinions.
21
In its Judgment, the Court examined in the context of the delimitations concerned the
problems relating to the legal r�gime of the continental shelf raised by the contentions
of the Parties.
The Facts and the Contentions of the Parties (paras. 1-17 of the Judgment)
The two Special Agreements had asked the Court to declare the principles and rules of
international law applicable to the delimitation as between the Parties of the areas of
the North Sea continental shelf appertaining to each of them beyond the partial
boundaries in the immediate vicinity of the coast already determined between the
Federal Republic and the Netherlands by an agreement of 1 December 1964 and
between the Federal Republic and Denmark by an agreement of 9 June 1965.The
Court was not asked actually to delimit the further boundaries involved, the Parties
undertaking in their respective Special Agreements to effect such delimitation by
agreement in pursuance of the Court's decision.
The waters of the North Sea were shallow, the whole seabed, except for the Norwegian
Trough, consisting of continental shelf at a depth of less than 200 metres. Most of it
had already been delimited between the coastal States concerned. The Federal
Republic and Denmark and the Netherlands, respectively, had, however, been unable
to agree on the prolongation of the partial boundaries referred to above, mainly because
Denmark and the Netherlands had wished this prolongation to be effected on the basis
of the equidistance principle, whereas the Federal Republic had considered that it
would unduly curtail what the Federal Republic believed should be its proper share of
continental shelf area, on the basis of proportionality to the length of its North Sea
coastline. Neither of the boundaries in question would by itself produce this effect, but
only both of them together - an element regarded by Denmark and the Netherlands as
irrelevant to what they viewed as being two separate delimitations, to be carried out
without reference to the other.
A boundary based on the equidistance principle, i.e., an "equidistance line", left to each
of the Parties concerned all those portions of the continental shelf that were nearer to
a point on its own coast than they were to any point on the coast of the other Party. In
the case of a concave or recessing coast such as that of the Federal Republic on the
North Sea, the effect of the equidistance method was to pull the line of the boundary
inwards, in the direction of the concavity. Consequently, where two equidistance lines
were drawn, they would, if the curvature were pronounced, inevitably meet at a
relatively short distance from the coast, thus "cutting off" the coastal State from the area
of the continental shelf outside. In contrast, the effect of convex or outwardly curving
coasts, such as were, to a moderate extent, those of Denmark and the Netherlands,
was to cause the equidistance lines to leave the coasts on divergent courses, thus
having a widening tendency on the area of continental shelf off that coast.
It had been contended on behalf of Denmark and the Netherlands that the whole matter
was governed by a mandatory rule of law which, reflecting the language of Article 6 of
the Geneva Convention on the Continental Shelf of 29 April 1958, was designated by
them as the "equidistance-special circumstances" rule. That rule was to the effect that
in the absence of agreement by the parties to employ another method, all continental
shelf boundaries had to be drawn by means of an equidistance line unless "special
circumstances" were recognized to exist. According to Denmark and the Netherlands,
the configuration of the German North Sea coast did not of itself constitute, for either of
the two boundary lines concerned, a special circumstance.
The Federal Republic, for its part, had contended that the correct rule, at any rate in
such circumstances as those of the North Sea, was one according to which each of the
States concerned should have a "just and equitable share" of the available continental
shelf, in proportion to the length of its sea-frontage. It had also contended that in a sea
shaped as is the North Sea, each of the States concerned was entitled to a continental
shelf area extending up to the central point of that sea, or at least extending to its
median line. Alternatively, the Federal Republic had claimed that if the equidistance
method were held to bc applicable, the configuration of the German North Sea coast
constituted a special circumstance such as to justify a departure from that method of
delimitation in this particular case.
The Apportionment Theory Rejected (paras. 18-20 of the Judgment)
The Court felt unable to accept, in the particular form it had taken, the first contention
put forward on behalf of the Federal Republic. Its task was to delimit, not to apportion
the areas concerned. The process of delimitation involved establishing the boundaries
of an area already, in principle, appertaining to the coastal State and not the
determination de novo of such an area. The doctrine of the just and equitable share
was wholly at variance with the most fundamental of all the rules of law relating to the
continental shelf, namely, that the rights of the coastal State in respect of the area of
continental shelf constituting a natural prolongation of its land territory under the sea
existed ipso facto and ab initio, by virtue of its sovereignty over the land. That right was
inherent. In order to exercise it, no special legal acts had to be performed. It followed
that the notion of apportioning an as yet undelimited area considered as a whole (which
underlay the doctrine of the just and equitable share) was inconsistent with the basic
concept of continental shelf entitlement.
Non-Applicability of Article 6 of the 1958 Continental Shelf Convention (paras. 21-36 of
the Judgment)
The Court then turned to the question whether in delimiting those areas the Federal
Republic was under a legal obligation to accept the application of the equidistance
principle. While it was probably true that no other method of delimitation had the same
combination of practical convenience and certainty of application, those factors did not
suffice of themselves to convert what was a method into a rule of law. Such a method
would have to draw its legal force from other factors than the existence of those
advantages.
The first question to be considered was whether the 1958 Geneva Convention on the
Continental Shelf was binding for all the Parties in the case. Under the formal provisions
of the Convention, it was in force for any individual State that had signed it within the
time-limit provided, only if that State had also subsequently ratified it. Denmark and the
Netherlands had both signed and ratified the Convention and were parties to it, but the
Federal Republic, although one of the signatories of the Convention, had never ratified
it, and was consequently not a party. It was admitted on behalf of Denmark and the
22
Netherlands that in the circumstances the Convention could not, as such, be binding
on the Federal Republic. But it was contended that the r�gime of Article 6 of the
Convention had become binding on the Federal Republic, because, by conduct, by
public statements and proclamations, and in other ways, the Republic had assumed
the obligations of the Convention.
It was clear that only a very definite, very consistent course of conduct on the part of a
State in the situation of the Federal Republic could justify upholding those contentions.
When a number of States drew up a convention specifically providing for a particular
method by which the intention to become bound by the r�gime of the convention was
to be manifested, it was not lightly to be presumed that a State which had not carried
out those formalities had nevertheless somehow become bound in another way.
Furthermore, had the Federal Republic ratified the Geneva Convention, it could have
entered a reservation to Article 6, by reason of the faculty to do so conferred by Article
12 of the Convention.
Only the existence of a situation of estoppel could lend substance to the contention of
Denmark and the Netherlands - i.e., if the Federal Republic were now precluded from
denying the applicability of the conventional r�gime, by reason of past conduct,
declarations, etc., which not only clearly and consistently evinced acceptance of that
r�gime, but also had caused Denmark or the Netherlands, in reliance on such conduct,
detrimentally to change position or suffer some prejudice. Of this there was no
evidence. Accordingly, Article 6 of the Geneva Convention was not, as such, applicable
to the delimitations involved in the present proceedings.
The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental
Shelf (paras. 37-59 of the Judgment)
It had been maintained by Denmark and the Netherlands that the Federal Republic was
in any event, and quite apart from the Geneva Convention, bound to accept delimitation
on an equidistance basis, since the use of that method was a rule of general or
customary international law, automatically binding on the Federal Republic.
One argument advanced by them in support of this contention, which might be termed
the a priori argument, started from the position that the rights of the coastal State to its
continental shelf areas were based on its sovereignty over the land domain, of which
the shelf area was the natural prolongation under the sea. From this notion of
appurtenance was derived the view, which the Court accepted, that the coastal State's
rights existed ipso facto and ab initio. Denmark and the Netherlands claimed that the
test of appurtenance must be "proximity": all those parts of the shelf being considered
as appurtenant to a particular coastal State which were closer to it than they were to
any point on the coast of another State. Hence, delimitation had to be effected by a
method which would leave to each one of the States concerned all those areas that
were nearest to its own coast. As only an equidistance line would do this, only such a
line could be valid, it was contended.
This view had much force; the greater part of a State's continental shelf areas would
normally in fact be nearer to its coasts than to any other. But the real issue was whether
it followed that every part of the area concerned must be placed in that way. The Court
did not consider this to follow from the notion of proximity, which was a somewhat fluid
one. More fundamental was the concept of the continental shelf as being the natural
prolongation of the land domain. Even if proximity might afford one of the tests to be
applied, and an important one in the right conditions, it might not necessarily be the
only, nor in all circumstances the most appropriate, one. Submarine areas did not
appertain to the coastal State merely because they were near it, nor did their
appurtenance depend on any certainty of delimitation as to their boundaries. What
conferred the ipso juretitle was the fact that the submarine areas concerned might be
deemed to be actually part of its territory in the sense that they were a prolongation of
its land territory under the sea. Equidistance clearly could not be identified with the
notion of natural prolongation, since the use of the equidistance method would
frequently cause areas which were the natural prolongation of the territory of one State
to be attributed to another. Hence, the notion of equidistance was not an inescapable
a priori accompaniment of basic continental shelf doctrine.
A review of the genesis of the equidistance method of delimitation confirmed the
foregoing conclusion. The "Truman Proclamation" issued by the Government of the
United States on 28 September 1945 could be regarded as a starting point of the
positive law on the subject, and the chief doctrine it enunciated, that the coastal State
had an original, natural and exclusive right to the continental shelf off its shores, had
come to prevail over all others and was now reflected in the1958 Geneva Convention.
With regard to the delimitation of boundaries between the continental shelves of
adjacent States, the Truman Proclamation had stated that such boundaries "shall be
determined by the United States and the State concerned in accordance with equitable
principles". These two concepts, of delimitation by mutual agreement and delimitation
in accordance with equitable principles, had underlain all the subsequent history of the
subject. It had been largely on the recommendation of a committee of experts that the
principle of equidistance for the delimitation of continental shelf boundaries had been
accepted by the United Nations International Law Commission in the text it had laid
before the Geneva Conference of 1958 on the Law of the Sea which had adopted the
Continental Shelf Convention. It could legitimately be assumed that the experts had
been actuated by considerations not of legal theory but of practical convenience and
cartography. Moreover, the article adopted by the Commission had given priority to
delimitation by agreement and had contained an exception in favour of "special
circumstances".
The Court consequently considered that Denmark and the Netherlands inverted the
true order of things and that, far from an equidistance rule having been generated by
an antecedent principle of proximity inherent in the whole concept of continental shelf
appurtenance, the latter was rather a rationalization of the former
The Equidistance Principle Not a Rule of Customary International Law (paras. 60-82 of
the Judgment)
The question remained whether through positive law processes the equidistance
principle must now be regarded as a rule of customary international law.
23
Rejecting the contentions of Denmark and the Netherlands, the Court considered that
the principle of equidistance, as it figured in Article 6 of the Geneva Convention, had
not been proposed by the International Law Commission as an emerging rule of
customary international law. This Article could not be said to have reflected or
crystallized such a rule. This was confirmed by the fact that any State might make
reservations in respect of Article 6, unlike Articles 1, 2 and 3, on signing, ratifying or
acceding to the Convention. While certain other provisions of the Convention, although
relating to matters that lay within the field of received customary law, were also not
excluded from the faculty of reservation, they all related to rules of general maritime
law very considerably antedating the Convention which were only incidental to
continental shelf rights as such, and had been mentioned in the Convention simply to
ensure that they were not prejudiced by the exercise of continental shelf rights. Article
6, however, related directly to continental shelf rights as such, and since it was not
excluded from the faculty of reservation, it was a legitimate inference that it was not
considered to reflect emergent customary law.
It had been argued on behalf of Denmark and the Netherlands that even if at the date
of the Geneva Convention no rule of customary international law existed in favour of
the equidistance principle, such a rule had nevertheless come into being since the
Convention, partly because of its own impact, and partly on the basis of subsequent
State practice. In order for this process to occur it was necessary that Article 6 of the
Convention should, at all events potentially, be of a norm-creating character. Article 6
was so framed, however, as to put the obligation to make use of the equidistance
method after a primary obligation to effect delimitation by agreement. Furthermore, the
part played by the notion of special circumstances in relation to the principle of
equidistance, the controversies as to the exact meaning and scope of that notion, and
the faculty of making reservations to Article 6 must all raise doubts as to the potentially
norm-creating character of that Article.
Furthermore, while a very widespread and representative participation in a convention
might show that a conventional rule had become a general rule of international law, in
the present case the number of ratifications and accessions so far was hardly sufficient.
As regards the time element, although the passage of only a short period of time was
not necessarily a bar to the formation of a new rule of customary international law on
the basis of what was originally a purely conventional rule, it was indispensable that
State practice during that period, including that of States whose interests were specially
affected, should have been both extensive and virtually uniform in the sense of the
provision invoked and should have occurred in such a way as to show a general
recognition that a rule of law was involved. Some 15 cases had been cited in which the
States concerned had agreed to draw or had drawn the boundaries concerned
according to the principle of equidistance, but there was no evidence that they had so
acted because they had felt legally compelled to draw them in that way by reason of a
rule of customary law. The cases cited were inconclusive and insufficient evidence of
a settled practice.
The Court consequently concluded that the Geneva Convention was not in its origins
or inception declaratory of a mandatory rule of customary international law enjoining
the use of the equidistance principle, its subsequent effect had not been constitutive of
such a rule, and State practice up to date had equally been insufficient for the purpose.
The Principles and Rules of Law Applicable (paras. 83-101 of the Judgment)
The legal situation was that the Parties were under no obligation to apply the
equidistance principle either under the 1958 Convention or as a rule of general or
customary international law. It consequently became unnecessary for the Court to
consider whether or not the configuration of the German North Sea coast constituted a
"special circumstance". It remained for the Court, however, to indicate to the Parties
the principles and rules of law in the light of which delimitation was to be effected.
The basic principles in the matter of delimitation, deriving from the Truman
Proclamation, were that it must be the object of agreement between the States
concerned and that such agreement must be arrived at in accordance with equitable
principles. The Parties were under an obligation to enter into negotiations with a view
to arriving at an agreement and not merely to go through a formal process of negotiation
as a sort of prior condition for the automatic application of a certain method of
delimitation in the absence of agreement; they were so to conduct themselves that the
negotiations were meaningful, which would not be the case when one of them insisted
upon its own position without contemplating any modification of it. This obligation was
merely a special application of a principle underlying all international relations, which
was moreover recognized in Article 33 of the Charter of the United Nations as one of
the methods for the peaceful settlement of international disputes.
The Parties were under an obligation to act in such a way that in the particular case,
and taking all the circumstances into account, equitable principles were applied. There
was no question of the Court's decision being ex aequo et bono. It was precisely a rule
of law that called for the application of equitable principles, and in such cases as the
present ones the equidistance method could unquestionably lead to inequity. Other
methods existed and might be employed, alone or in combination, according to the
areas involved. Although the Parties intended themselves to apply the principles and
rules laid down by the Court some indication was called for of the possible ways in
which they might apply them.
For all the foregoing reasons, the Court found in each case that the use of the
equidistance method of delimitation was not obligatory as between the Parties; that no
other single method of delimitation was in all circumstances obligatory; that delimitation
was to be effected by agreement in accordance with equitable principles and taking
account of all relevant circumstances, in such a way as to leave as much as possible
to each Party all those parts of the continental shelf that constituted a natural
prolongation of its land territory, without encroachment on the natural prolongation of
the land territory of the other; and that, if such delimitation produced overlapping areas,
they were to be divided between the Parties in agreed proportions, or, failing
agreement, equally, unless they decided on a r�gime of joint jurisdiction, user, or
exploitation.
In the course of negotiations, the factors to be taken into account were to include: the
general configuration of the coasts of the Parties, as well as the presence of any special
24
or unusual features; so far as known or readily ascertainable, the physical and
geological structure and natural resources of the continental shelf areas involved, the
element of a reasonable degree of proportionality between the extent of the continental
shelf areas appertaining to each State and the length of its coast measured in the
general direction of the coastline, taking into account the effects, actual or prospective,
of any other continental shelf delimitations in the same region.
CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES
IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES OF AMERICA)
(MERITS)
Judgment of 27 June 1986
For its judgment on the merits in the case concerning military and Paramilitary Activities
in and against Nicaragua brought by Nicaragua against the United States of America,
the Court was composed as follows:
President Nagendra Singh, Vice-President de Lacharri�re; Judges Lachs, Ruda, Elias,
Oda, Ago, Sette-Camara, Schwebel, Sir Robert Jennings, Mbaye, Bedjaoui, Ni,
Evensen, Judge ad hoc Colliard
*
**
OPERATIVE PART OF THE COURT'S JUDGMENT
THE COURT
(1) By eleven votes to four,
Decides that in adjudicating the dispute brought before it by the Application filed by the
Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral
treaty reservation"contained in proviso (c) to the declaration of acceptance of
jurisdiction made under Article 36, paragraph 2, of the Statute of the Court by the
Government of the Untied States of America deposited on 26 August 1946;
IN FAVOUR: President Nagendra Singh; Vice-President de
Lacharri�re; Judges Lachs, Oda, Ago, Schwebel, Sir Robert Jennings, Mbaye,
Bedjaoui and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Ruda, Elias, Sette-Camara and Ni.
(2) By twelve votes to three,
Rejects the justification of collective self-defence maintained by the United States of
America in connection with the military and paramilitary activities in and against
Nicaragua the subject of this case;
IN FAVOUR: President Nagendra Singh; Vice-President de
Lacharri�re; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and
Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(3) By twelve votes to three,
Decides that the United States of America, by training, arming, equipping, financing AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
and supplying the contra forces or otherwise encouraging, supporting and aiding (7) By fourteen votes to one,
military and paramilitary activities in and against Nicaragua, has acted, against the Decides that, by the acts referred to in subparagraph (6) hereof the United States of
Republic of Nicaragua, in breach of its obligation under customary international law not America has acted, against the Republic of Nicaragua, in breach of its obligations under
to intervene in the affairs of another State; Article XIX of the Treaty of Friendship, Commerce and Navigation between the United
IN FAVOUR: President Nagendra Singh; Vice-President de States of America and the Republic of Nicaragua signed at Managua on 21 January
Lacharri�re; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and 1956;
IN FAVOUR: President Nagendra Singh, Vice-President de
Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings. Lacharri�re; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert
(4) By twelve votes to three, Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
Decides that the United States of America, by certain attacks on Nicaraguan territory AGAINST: Judge Schwebel.
in 1983-1984, namely attacks on Puerto Sandino on 13 September and 14 October (8) By fourteen votes to one,
1983, an attack on Corinto on 10 October 1983; an attack on Potosi Naval Base on 4/5 Decides that the United States of America, by failing to make known the existence and
January 1984, an attack on San Juan del Sur on 7 March 1984; attacks on patrol boats location of the mines laid by it, referred to in subparagraph (6) hereof, has acted in
at Puerto Sandino on 28 and 30 March 1984; and an attack on San Juan del Norte on breach of its obligations under customary international law in this respect;
9 April 1984; and further by those acts of intervention referred to in subparagraph (3) IN FAVOUR: President Nagendra Singh; Vice-President de
hereof which involve the use of force, has acted, against the Republic of Nicaragua, in Lacharri�re, Judges Lachs, Ruda, Elias, Ago, Sette Camara, Schwebel, Sir Robert
breach of its obligation under customary international law not to use force against
Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
another State;
AGAINST: Judge Oda.
IN FAVOUR: President Nagendra Singh; Vice-President de
(9) By fourteen votes to one,
Lacharri�re; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Finds that the United States of America, by producing in 1983 a manual entitled
Evensen; Judge ad hoc Colliard; "Operaciones sicol�gicas en guerra de guerrillas", and disseminating it
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
to contra forces, has encouraged the commission by them of acts contrary to general
(5) By twelve votes to three,
principles of humanitarian law; but does not find a basis for concluding that any such
Decides that the United States of America, by directing or authorizing over Rights of
acts which may have been committed are imputable to the United States of America as
Nicaraguan territory, and by the acts imputable to the United States referred to in
acts of the United States of America;
subparagraph (4) hereof, has acted, against the Republic of Nicaragua, in breach of its
IN FAVOUR: President Nagendra Singh; Vice-President de
obligation under customary international law not to violate the sovereignty of another
State; Lacharri�re; Judges Lachs, Ruda, Elias, Ago, Sette Camara, Schwebel, Sir Robert
IN FAVOUR: President Nagendra Singh; Vice-President de Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
Lacharri�re; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and AGAINST: Judge Oda.
(10) By twelve votes to three,
Evensen; Judge ad hoc Colliard;
Decides that the United States of America, by the attacks on Nicaraguan territory
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
referred to in subparagraph (4) hereof, and by declaring a general embargo on trade
(6) By twelve votes to three,
with Nicaragua on 1 May 1985, has committed acts calculated to deprive of its object
Decides that, by laying mines in the internal or territorial waters of the Republic of
and purpose the Treaty of Friendship, Commerce and Navigation between the Parties
Nicaragua during the first months of 1984, the United States of America has acted,
signed at Managua on 21 January 1956;
against the Republic of Nicaragua, in breach of its obligations under customary
IN FAVOUR: President Nagendra Singh; Vice-President de
international law not to use force against another State, not to intervene in its affairs,
not to violate its sovereignty and not to interrupt peaceful maritime commerce; Lacharri�re; Judges Lachs, Ruda, Elias, Ago, Sette Camara, Mbaye, Bedjaoui, Ni and
IN FAVOUR: President Nagendra Singh, Vice-President de Evensen; Judge ad hoc Colliard;
Lacharri�re; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(11) By twelve votes to three,
Evensen; Judge ad hoc Colliard;
25
Decides that the United States of America, by the attacks on Nicaraguan territory (16) Unanimously,
referred to in subparagraph (4) hereof, and by declaring a general embargo on trade Recalls to both Parties their obligation to seek a solution to their disputes by peaceful
with Nicaragua on 1 May 1985, has acted in breach of its obligations under Article XIX means in accordance with international law.
of the Treaty of Friendship, Commerce and Navigation between the Parties signed at SUMMARY OF THE JUDGMENT
Managua on 21 January 1956; I. Qualit�s (paras. 1 to 17)
IN FAVOUR: President Nagendra Singh; Vice-President de
II. Background to the dispute (paras. 18-25)
Lacharri�re; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and III. The non-appearance of the Respondent and Article 53 of the Statute (paras. 26-31)
Evensen; Judge ad hoc Colliard; The Court recalls that subsequent to the delivery of its Judgment of 26 November 1984
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings. on the jurisdiction of the Court and the admissibility of Nicaragua's Application, the
(12) By twelve votes to three, United States decided not to take part in the present phase of the proceedings. This
Decides that the United States of America is under a duty immediately to cease and to however does not prevent the Court from giving a decision in the case, but it has to do
refrain from all such acts as may constitute breaches of the foregoing legal obligations; so while respecting the requirements of Article 53 of the Statute, which provides for the
IN FAVOUR: President Nagendra Singh; Vice-President de situation when one of the parties does not appear. The Court's jurisdiction being
Lacharri�re; Judges Lachs, Ruda, Elias, Ago, Sette Camara, Mbaye, Bedjaoui, Ni and established, it has in accordance with Article 53 to satisfy itself that the claim of the
party appearing is well founded in fact and law. In this respect the Court recalls certain
Evensen; Judge ad hoc Colliard;
guiding principles brought out in a number of previous cases, one of which excludes
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
any possibility of a judgment automatically in favour of the party appearing. It also
(13) By twelve votes to three,
observes that it is valuable for the Court to know the views of the non-appearing party,
Decides that the United States of America is under an obligation to make reparation to
even if those views are expressed in ways not provided for in the Rules of Court. The
the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of
principle of the equality of the parties has to remain the basic principle, and the Court
obligations under customary international law enumerated above;
has to ensure that the party which declines to appear should not be permitted to profit
IN FAVOUR: President Nagendra Singh; Vice-President de
from its absence.
Lacharri�re; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and IV. Justiciability of the dispute (paras. 32-35)
Evensen; Judge ad hoc Colliard; The Court considers it appropriate to deal with a preliminary question. It has been
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings. suggested that the questions of the use of force and collective self-defence raised in
(14) By fourteen votes to one, the case fall outside the limits of the kind of questions the Court can deal with, in other
Decides that the United States of America is under an obligation to make reparation to words that they are not justiciable. However, in the first place the Parties have not
the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the argued that the present dispute is not a "legal dispute" within the meaning of Article 36,
Treaty of Friendship, Commerce and Navigation between the Parties signed at paragraph 2, of the Statute, and secondly, the Court considers that the case does not
Managua on 21 January 1956; necessarily involve it in evaluation of political or military matters, which would be to
IN FAVOUR: President Nagendra Singh; Vice-President de overstep proper judicial bounds. Consequently, it is equipped to determine these
Lacharri�re; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert problems.
V. The significance of the multilateral treaty reservation (paras. 36-56)
Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
The United States declaration of acceptance of the compulsory jurisdiction of the Court
AGAINST: Judge Schwebel.
under Article 36, paragraph 2, of the Statute contained a reservation excluding from
(15) By fourteen votes to one,
operation of the declaration
Decides that the form and amount of such reparation, failing agreement between the
"disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected
Parties, will be settled by the Court, and reserves for this purpose the subsequent
by the decision are also parties to the case before the Court, or (2) the United States
procedure in the case;
of America specially agrees to jurisdiction".
IN FAVOUR: President Nagendra Singh; Vice-President de
In its Judgment of 26 November 1984 the Court found, on the basis of Article 79,
Lacharri�re; Judges Lachs, Ruda, Elias, Oda, Ago, Sette Camara, Sir Robert paragraph 7, of the Rules of Court, that the objection to jurisdiction based on the
Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard; reservation raised "a question concerning matters of substance relating to the merits of
AGAINST: Judge Schwebel. the case" and that the objection did "not possess, in the circumstances of the case, an

26
exclusively preliminary character". Since it contained both preliminary aspects and
other aspects relating to the merits, it had to be dealt with at the stage of the merits.
In order to establish whether its jurisdiction were limited by the effect of the reservation
in question, the Court has to ascertain whether any third States, parties to the four
multilateral treaties invoked by Nicaragua, and not parties to the proceedings, would be
"affected" by the Judgment. Of these treaties, the Court considers it sufficient to
examine the position under the United Nations Charter and the Charter of the
Organization of American States.
The Court examines the impact of the multilateral treaty reservation on Nicaragua's
claim that the United States has used force in breach of the two Charters. The Court
examines in particular the case of El Salvador, for whose benefit primarily the United
States claims to be exercising the right of collective self-defence which it regards as a
justification of its own conduct towards Nicaragua, that right being endorsed by the
United Nations Charter (Art. 51) and the OAS Charter (Art. 21). The dispute is to this
extent a dispute "arising under" multilateral treaties to which the United States,
Nicaragua and El Salvador are Parties. It appears clear to the Court that El Salvador
would be "affected" by the Court's decision on the lawfulness of resort by the United
States to collective self-defence.
As to Nicaragua's claim that the United States has intervened in its affairs contrary to
the OAS Charter (Art. 18) the Court observes that it is impossible to say that a ruling
on the alleged breach of the Charter by the United States would not "affect" El Salvador.
Having thus found that El Salvador would be "affected" by the decision that the Court
would have to take on the claims of Nicaragua based on violation of the two Charters
by the United States, the Court concludes that the jurisdiction conferred on it by the
United States declaration does not permit it to entertain these claims. It makes it clear
that the effect of the reservation is confined to barring the applicability of these two
multilateral treaties as multilateral treaty law, and has no further impact on the sources
of international law which Article 38 of the Statute requires the Court to apply, including
customary international law.
VI. Establishment of the facts: evidence and methods employed by the Court (paras.
57-74)
The Court has had to determine the facts relevant to the dispute. The difficulty of its
task derived from the marked disagreement between the Parties, the non-appearance
of the Respondent, the secrecy surrounding certain conduct, and the fact that the
conflict is continuing. On this last point, the Court takes the view, in accordance with
the general principles as to the judicial process, that the facts to be taken into account
should be those occurring up to the close of the oral proceedings on the merits of the
case (end of September 1985).
With regard to the production of evidence, the Court indicates how the requirements of
its Statute - in particular Article 53 - and the Rules of Court have to be met in the case,
on the basis that the Court has freedom in estimating the value of the various elements
of evidence. It has not seen fit to order an enquiry under Article 50 of the Statute. With
regard to certain documentary material (press articles and various books), the Court
has treated these with caution. It regards than not as evidence capable of proving facts,
27
but as material which can nevertheless contribute to corroborating the existence of a
fact and be taken into account to show whether certain facts are matters of public
knowledge. With regard tostatements by representatives of States, sometimes at the
highest level, the Court takes the view that such statements are of particular probative
value when they acknowledge facts or conduct unfavourable to the State represented
by the person who made them. With regard to the evidence of witnesses presented by
Nicaragua - five witnesses gave oral evidence and another a written affidavit-one
consequence of the absence of the Respondent was that the evidence of the witnesses
was not tested by cross-examination. The Court has not treated as evidence any part
of the testimony which was a mere expression of opinion as to the probability or
otherwise of the existence of a fact not directly known to the witness. With regard in
particular to affidavits and sworn statements made by members of a Government, the
Court considers that it can certainly retain such parts of this evidence as may be
regarded as contrary to the interests or contentions of the State to which the witness
has allegiance; for the rest such evidence has to be treated with great reserve.
The Court is also aware of a publication of the United States State Department entitled
"Revolution Beyond Our Borders, Sandinista Intervention in Central America" which
was not submitted to the Court in any form or manner contemplated by the Statute and
Rules of Court. The Court considers that, in view of the special circumstances of this
case, it may, within limits, make use of information in that publication.
VII. The facts imputable to the United States (paras. 75 to 125)
1. The Court examines the allegations of Nicaragua that the mining of Nicaraguan ports
or waters was carried out by United States military personnel or persons of the
nationality of Latin American countries in the pay of the United States. After examining
the facts, the Court finds it established that, on a date in late 1983 or early 1984, the
President of the United States authorized a United States Government agency to lay
mines in Nicaraguan ports, that in early 1984 mines were laid in or close to the ports of
El Bluff, Corinto and Puerto Sandino, either in Nicaraguan internal waters or in its
territorial sea or both, by persons in the pay and acting on the instructions of that
agency, under the supervision and with the logistic support of United States agents;
that neither before the laying of the mines, nor subsequently, did the United States
Government issue any public and official warning to international shipping of the
existence and location of the mines; and that personal and material injury was caused
by the explosion of the mines, which also created risks causing a rise in marine
insurance rates.
2. Nicaragua attributes to the direct action of United States personnel, or persons in its
pay, operations against oil installations, a naval base, etc.,listed in paragraph 81 of the
Judgment. The Court finds all these incidents, except three, to be established. Although
it is not proved that any United States military personnel took a direct part in the
operations, United States agents participated in the planning, direction and support.
The imputability to the United States of these attacks appears therefore to the Court to
be established.
3. Nicaragua complains of infringement of its air space by United States military aircraft.
After indicating the evidence available, the Court finds that the only violations of
Nicaraguan air space imputable to the United States on the basis of the evidence are
high altitude reconnaissance flights and low altitude flights on 7 to 11 November 1984
causing "sonic booms".
With regard to joint military manoeuvres with Honduras carried out by the United States
on Honduran territory near the Honduras/Nicaragua frontier, the Court considers that
they may be treated as public knowledge and thus sufficiently established.
4. The Court then examines the genesis, development and activities of the contra
force, and the role of the United States in relation to it. According to Nicaragua, the
United States "conceived, created and organized a mercenary army, the contra force".
On the basis of the available information, the Court is not able to satisfy itself that the
Respondent State "created" the contra force in Nicaragua, but holds it established that
it largely financed, trained, equipped, armed and organized the FDN, one element of
the force.
It is claimed by Nicaragua that the United States Government devised the strategy and
directed the tactics of the contra force, and provided direct combat support for its
military operations. In the light of the evidence and material available to it, the Court is
not satisfied that all the operations launched by the contra force, at every stage of the
conflict, reflected strategy and tactics solely devised by the United States. It therefore
cannot uphold the contention of Nicaragua on this point. The Court however finds it
clear that a number of operations were decided and planned, if not actually by the
United States advisers, then at least in close collaboration with them, and on the basis
of the intelligence and logistic support which the United States was able to offer. It is
also established in the Court's view that the support of the United States for the
activities of the contrastook various forms over the years, such as logistic support the
supply of information on the location and movements of the Sandinista troops, the use
of sophisticated methods of communication, etc. The evidence does not however
warrant a finding that the United States gave direct combat support, if that is taken to
mean direct intervention by United States combat forces.
The Court has to determine whether the relationship of the contras to the United States
Government was such that it would be right to equate thecontras, for legal purposes,
with an organ of the United States Government, or as acting on behalf of that
Government. The Court considers that the evidence available to it is insufficient to
demonstrate the total dependence of the contras on United States aid. A partial
dependency, the exact extent of which the Court cannot establish, may be inferred from
the fact that the leaders were selected by the United States, and from other factors
such as the organisation, training and equipping of the force, planning of operations,
the choosing of targets and the operational support provided. There is no clear
evidence that the United States actually exercised such a degree of control as to justify
treating the contras as acting on its behalf.
5. Having reached the above conclusion, the Court takes the view that
the contras remain responsible for their acts, in particular the alleged violations by them
of humanitarian law. For the United States to be legally responsible, it would have to
be proved that that State had effective control of the operations in the course of which
the alleged violations were committed.
28
6. Nicaragua has complained of certain measures of an economic nature taken against
it by the Government of the United States, which it regards as an indirect form of
intervention in its internal affairs. Economic aid was suspended in January 1981, and
terminated in April 1981; the United States acted to oppose or block loans to Nicaragua
by international financial bodies; the sugar import quota from Nicaragua was reduced
by 90 percent in September 1983; and a total trade embargo on Nicaragua was
declared by an executive order of the President of the United States on 1 May 1985.
VIII. The conduct of Nicaragua (paras. 126-171)
The Court has to ascertain, so far as possible, whether the activities of the United
States complained of, claimed to have been the exercise of collective self-defence, may
be justified by certain facts attributable to Nicaragua.
1. The United States has contended that Nicaragua was actively supporting armed
groups operating in certain of the neighbouring countries,particularly in El Salvador,
and specifically in the form of the supply of arms, an accusation which Nicaragua has
repudiated. The Court first examines the activity of Nicaragua with regard to El
Salvador.
Having examined various evidence, and taking account of a number of concordant
indications, many of which were provided by Nicaragua itself, from which the Court can
reasonably infer the provision of a certain amount of aid from Nicaraguan territory, the
Court concludes that support for the armed opposition in El Salvador from Nicaraguan
territory was a fact up to the early months of 1981. Subsequently, evidence of military
aid from or through Nicaragua remains very weak, despite the deployment by the
United States in the region of extensive technical monitoring resources. The Court
cannot however conclude that no transport of or traffic in arms existed. It merely takes
note that the allegations of arms traffic are not solidly established, and has not been
able to satisfy itself that any continuing flow on a significant scale took place after the
early months of 1981.
Even supposing it were established that military aid was reaching the armed opposition
in El Salvador from the territory of Nicaragua, it skill remains to be proved that such aid
is imputable to the authorities of Nicaragua, which has not sought to conceal the
possibility of weapons crossing its territory, but denies that this is the result of any
deliberate official policy on its part. Having regard to the circumstances characterizing
this part of Central America, the Court considers that it is scarcely possible for
Nicaragua's responsibility for arms traffic on its territory to be automatically assumed.
The Court considers it more consistent with the probabilities to recognize that an activity
of that nature, if on a limited scale, may very well be pursued unknown to the territorial
government. In any event the evidence is insufficient to satisfy the Court that the
Government of Nicaragua was responsible for any flow of arms at either period.
2. The United States has also accused Nicaragua of being responsible for cross-border
military attacks on Honduras and Costa Rica. While not as fully informed on the
question as it would wish to be, the Court considers as established the fact that certain
trans-border military incursions are imputable to the Government of Nicaragua.
3. The Judgment recalls certain events which occurred at the time of the fall of President
Somoza, since reliance has been placed on them by the United States to contend that
the present Government of Nicaragua is in violation of certain alleged assurances given
by its immediate predecessor. The Judgment refers in particular to the "Plan to secure
peace" sent on 12 July 1979 by the "Junta of the Government of National
Reconstruction" of Nicaragua to the Secretary-General of the OAS, mentioning, inter
alia, its "firm intention to establish full observance of human rights in our country" and
"to call the first free elections our country has known in this century". The United States
considers that it has a special responsibility regarding the implementation of these
commitments.
IX. The applicable law: customary international law (paras. 172-182)
The Court has reached the conclusion (section V, in fine) that it has to apply the
multilateral treaty reservation in the United States declaration, the consequential
exclusion of multilateral treaties being without prejudice either to other treaties or other
sources of law enumerated in Article 38 of the Statute. In order to determine the law
actually to be applied to the dispute, it has to ascertain the consequences of the
exclusion of the applicability of the multilateral treaties for the definition of the content
of the customary international law which remains applicable.
The Court, which has already commented briefly on this subject in the jurisdiction phase
(I.C.J. Reports 1984, pp. 424 and 425, para. 73), develops its initial remarks. It does
not consider that it can be claimed, as the United States does, that all the customary
rules which may be invoked have a content exactly identical to that of the rules
contained in the treaties which cannot be applied by virtue of the United States
reservation. Even if a treaty norm and a customary norm relevant to the present dispute
were to have exactly the same content, this would not be a reason for the Court to take
the view that the operation of the treaty process must necessarily deprive the customary
norm of its separate applicability. Consequently, the Court is in no way bound to uphold
customary rules only in so far as they differ from the treaty rules which it is prevented
by the United States reservation from applying.
In response to an argument of the United States, the Court considers that the
divergence between the content of the customary norms and that of the treaty law
norms is not such that a judgment confined to the field of customary international law
would not be susceptible of compliance or execution by the parties.
X. The content of the applicable law (paras. 183 to 225)
1. Introduction: general observations (paras. 183-186)
The Court has next to consider what are the rules of customary law applicable to the
present dispute. For this purpose it has to consider whether a customary rule exists in
the opinio juris of States,and satisfy itself that it is confirmed by practice.
2. The prohibition of the use of force, and the right of self-defence (paras. 187 to 201)
The Court finds that both Parties take the view that the principles as to the use of force
incorporated in the United Nations Charter correspond, in essentials, to those found in
customary international law. They therefore accept a treaty-law obligation to refrain in
their international relations from the threat or use of force against the territorial integrity
or political independence of any State, or in any other manner inconsistent with the
purposes of the United Nations (Art. 2, para. 4, of the Charter). The Court has however
to be satisfied that there exists in customary law an opinio juris as to the binding
29
character of such abstention. It considers that this opinio juris may be deduced
from, inter alia, the attitude of the Parties and of States towards certain General
Assembly resolutions, and particularly resolution 2625 (XXV) entitled "Declaration on
Principles of International Law concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations". Consent to such
resolutions is one of the forms of expression of an opinio juris with regard to the
principle of non-use of force, regarded as a principle of customary international law,
independently of the provisions, especially those of an institutional kind, to which it is
subject on the treaty-law plane of the Charter.
The general rule prohibiting force established in customary law allows for certain
exceptions. The exception of the right of individual or collective self-defence is also, in
the view of States, established in customary law, as is apparent for example from the
terms of Article 51 of the United Nations Charter, which refers to an "inherent right",
and from the declaration in resolution 2625 (XXV). The Parties, who consider the
existence of this right to be established as a matter of customary international law,
agree in holding that whether the response to an attack is lawful depends on the
observance of the criteria of the necessity and the proportionality of the measures taken
in self-defence.
Whether self-defence be individual or collective, it can only be exercised in response
to an "armed attack". In the view of the Court, this is to be understood as meaning not
merely action by regular armed forces across an international border, but also the
sending by a State of armed bands on to the territory of another State, if such an
operation, because of its scale and effects, would have been classified as an armed
attack had it been carried out by regular armed forces. The Court quotes the definition
of aggression annexed to General Assembly resolution 3314 (XXIX) as expressing
customary law in this respect.
The Court does not believe that the concept of "armed attack" includes assistance to
rebels in the form of the provision of weapons or logistical or other support.
Furthermore, the Court finds that in customary international law, whether of a general
kind or that particular to the inter-American legal system, there is no rule permitting the
exercise of collective self-defence in the absence of a request by the State which is a
victim of the alleged attack, this being additional to the requirement that the State in
question should have declared itself to have been attacked.
3. The principle of non-intervention (paras. 202 to 209)
The principle of non-intervention involves the right of every sovereign State to conduct
its affairs without outside interference. Expressions of anopinio juris of States regarding
the existence of this principle are numerous. The Court notes that this principle, stated
in its own jurisprudence, has been reflected in numerous declarations and resolutions
adopted by international organizations and conferences in which the United States and
Nicaragua have participated. The text thereof testifies to the acceptance by the United
States and Nicaragua of a customary principle which has universal application. As to
the content of the principle in customary law, the Court defines the constitutive elements
which appear relevant in this case: a prohibited intervention must be one bearing on
matters in which each State is permitted, by the principle of State sovereignty, to decide
freely (for example the choice of a political, economic, social and cultural system, and
formulation of foreign policy). Intervention is wrongful when it uses, in regard to such
choices, methods of coercion, particularly force, either in the direct form of military
action or in the indirect form of support for subversive activities in another State.
With regard to the practice of States, the Court notes that there have been in recent
years a number of instances of foreign intervention in one State for the benefit of forces
opposed to the government of that State. It concludes that the practice of States does
not justify the view that any general right of intervention in support of an opposition
within another State exists in contemporary international law; and this is in fact not
asserted either by the United States or by Nicaragua.
4. Collective counter-measures in response to conduct not amounting to armed
attack (paras. 210 and 211)
The Court then considers the question whether, if one State acts towards another in
breach of the principle of non-intervention, a third State may lawfully take action by way
of counter-measures which would amount to an intervention in the first State's internal
affairs. This would be analogous to the right of self-defence in the case of armed attack,
but the act giving rise to the reaction would be less grave, not amounting to armed
attack. In the view of the Court, under international law in force today, States do not
have a right of "collective" armed response to acts which do not constitute an "armed
attack".
5. State sovereignty (paras. 212 to 214)
Turning to the principle of respect for State sovereignty, the Court recalls that the
concept of sovereignty, both in treaty-law and in customary international law, extends
to the internal waters and territorial sea of every State and to the airspace above its
territory. It notes that the laying of mines necessarily affects the sovereignty of the
coastal State, and that if the right of access to ports is hindered by the laying of mines
by another State, what is infringed is the freedom of communications and of maritime
commerce.
6. Humanitarian law (paras. 215 to 220)
The Court observes that the laying of mines in the waters of another State without any
warning or notification is not only an unlawful act but also a breach of the principles of
humanitarian law underlying the Hague Convention No. VIII of 1907. This consideration
leads the Court on to examination of the international humanitarian law applicable to
the dispute. Nicaragua has not expressly invoked the provisions of international
humanitarian law as such, but has complained of acts committed on its territory which
would appear to be breaches thereof. In its submissions it has accused the United
States of having killed, wounded and kidnapped citizens of Nicaragua. Since the
evidence available is insufficient for the purpose of attributing to the United States the
acts committed by the contras, the Court rejects this submission.
The question however remains of the law applicable to the acts of the United States in
relation to the activities of the contrast Although Nicaragua has refrained from referring
to the four Geneva Conventions of 12 August 1949, to which Nicaragua and the United
States are parties, the Court considers that the rules stated in Article 3, which is
common to the four Conventions, applying to armed conflicts of a non-international
30
character, should be applied. The United States is under an obligation to "respect" the
Conventions and even to "ensure respect" for them, and thus not to encourage persons
or groups engaged in the conflict in Nicaragua to act in violation of the provisions of
Article 3. This obligation derives from the general principles of humanitarian law to
which the Conventions merely give specific expression.
7. The 1956 treaty (paras. 221 to 225)
In its Judgment of 26 November 1984, the Court concluded that it had jurisdiction to
entertain claims concerning the existence of a dispute between the United States and
Nicaragua as to the interpretation or application of a number of articles of the treaty of
Friendship, Commerce and Navigation signed at Managua on 21 January 1956. It has
to determine the meaning of the various relevant provisions, and in particular of Article
XXI, paragraphs I (c) and I (d), by which the parties reserved the power to derogate
from the other provisions.
XI. Application of the law to the facts (paras. 226 to 282)
Having set out the facts of the case and the rules of international law which appear to
be in issue as a result of those facts, the Court has now to appraise the facts in relation
to the legal rules applicable, and determine whether there are present any
circumstances excluding the unlawfulness of particular acts.
1. The prohibition of the use of force and the right of self-defence (paras. 227 to 238)
Appraising the facts first in the light of the principle of the non-use of force, the Court
considers that the laying of mines in early 1984 and certain attacks on Nicaraguan
ports, oil installations and naval bases, imputable to the United States constitute
infringements of this principle, unless justified by circumstances which exclude their
unlawfulness. It also considers that the United States has committed a prima facie
violation of the principle by arming and training the contras, unless this can be justified
as an exercise of the right of self-defence.
On the other hand, it does not consider that military manoeuvres held by the United
States near the Nicaraguan borders, or the supply of funds to the contras, amounts to
a use of force.
The Court has to consider whether the acts which it regards as breaches of the principle
may be justified by the exercise of the right of collective self-defence, and has therefore
to establish whether the circumstances required are present. For this, it would first have
to find that Nicaragua engaged in an armed attack against El Salvador, Honduras or
Costa Rica, since only such an attack could justify reliance on the right of self-defence.
As regards El Salvador, the Court considers that in customary international law the
provision of arms to the opposition in another State does not constitute an armed attack
on that State. As regards Honduras and Costa Rica, the Court states that, in the
absence of sufficient information as to the transborder incursions into the territory of
those two States from Nicaragua, it is difficult to decide whether they amount, singly or
collectively, to an armed attack by Nicaragua. The Court finds that neither these
incursions nor the alleged supply of arms may be relied on as justifying the exercise of
the right of collective self-defence.
Secondly, in order to determine whether the United States was justified in exercising
self-defence, the Court has to ascertain whether the circumstances required for the
exercise of this right of collective self-defence were present, and therefore considers
whether the States in question believed that they were the victims of an armed attack
by Nicaragua, and requested the assistance of the United States in the exercise of
collective self-defence. The Court has seen no evidence that the conduct of those
States was consistent with such a situation.
Finally, appraising the United States activity in relation to the criteria of necessity and
proportionality, the Court cannot find that the activities in question were undertaken in
the light of necessity, and finds that some of them cannot be regarded as satisfying the
criterion of proportionality.
Since the plea of collective self-defence advanced by the United States cannot be
upheld, it follows that the United States has violated the principle prohibiting recourse
to the threat or use of force by the acts referred to in the first paragraph of this section.
2. The principle of non-intervention (paras. 239 to 245)
The Court finds it clearly established that the United States intended, by its support of
the contras, to coerce Nicaragua in respect of matters in which each State is permitted
to decide freely, and that the intention of the contras themselves was to overthrow the
present Government of Nicaragua. It considers that if one State, with a view to the
coercion of another State, supports and assists armed bands in that State whose
purpose is to overthrow its government, that amounts to an intervention in its internal
affairs, whatever the political objective of the State giving support. It therefore finds that
the support given by the United States to the military and paramilitary activities of
the contras in Nicaragua, by financial support, training, supply of weapons, intelligence
and logistic support, constitutes a clear breach of the principle of non-intervention.
Humanitarian aid on the other hand cannot be regarded as unlawful intervention. With
effect from 1 October 1984, the United States Congress has restricted the use of funds
to "humanitarian assistance" to the contrast The Court recalls that if the provision of
"humanitarian assistance" is to escape condemnation as an intervention in the internal
affairs of another State, it must be limited to the purposes hallowed in the practice of
the Red Cross, and above all be given without discrimination.
With regard to the form of indirect intervention which Nicaragua sees in the taking of
certain action of an economic nature against it by the United States, the Court is unable
to regard such action in the present case as a breach of the customary law principle of
non-intervention.
3. Collective counter-measures in response to conduct not amounting to armed
attack (paras. 246 to 249)
Having found that intervention in the internal affairs of another State does not produce
an entitlement to take collective counter-measures involving the use of force, the Court
finds that the acts of which Nicaragua is accused, even assuming them to have been
established and imputable to that State, could not justify counter-measures taken by a
third State, the United States, and particularly could not justify intervention involving the
use of force.
4. State sovereignty (paras. 250 to 253)
The Court finds that the assistance to the contras, the direct attacks on Nicaraguan
ports, oil installations, etc., the mining operations in Nicaraguan ports, and the acts of
31
intervention involving the use of force referred to in the Judgment, which are already a
breach of the principle of non-use of force, are also an infringement of the principle of
respect for territorial sovereignty. This principle is also directly infringed by the
unauthorized overflight of Nicaraguan territory. These acts cannot be justified by the
activities in El Salvador attributed to Nicaragua; assuming that such activities did in fact
occur, they do not bring into effect any right belonging to the United States. The Court
also concludes that, in the context of the present proceedings, the laying of mines in or
near Nicaraguan ports constitutes an infringement, to Nicaragua's detriment, of the
freedom of communications and of maritime commerce.
5. Humanitarian law (paras. 254 to 256)
The Court has found the United States responsible for the failure to give notice of the
mining of Nicaraguan ports.
It has also found that, under general principles of humanitarian law, the United States
was bound to refrain from encouragement of persons or groups engaged in the conflict
in Nicaragua to commit violations of common Article 3 of the four Geneva Conventions
of 12 August 1949. The manual on "Psychological Operations in Guerrilla Warfare", for
the publication and dissemination of which the United States is responsible, advises
certain acts which cannot but be regarded as contrary to that article.
6. Other grounds mentioned in justification of the acts of the United States (paras. 257
to 269)
The United States has linked its support to the contras with alleged breaches by the
Government of Nicaragua of certain solemn commitments to the Nicaraguan people,
the United States and the OAS. The Court considers whether there is anything in the
conduct of Nicaragua which might legally warrant counter-measures by the United
States in response to the alleged violations. With reference to the "Plan to secure
peace" put forward by the Junta of the Government of National Reconstruction
(12 July 1979), the Court is unable to find anything in the documents and
communications transmitting the plan from which it can be inferred that any legal
undertaking was intended to exist. The Court cannot contemplate the creation of a new
rule opening up a right of intervention by one State against another on the ground that
the latter has opted for some particular ideology or political system. Furthermore the
Respondent has not advanced a legal argument based on an alleged new principle of
"ideological intervention".
With regard more specifically to alleged violations of human rights relied on by the
United States, the Court considers that the use of force by the United States could not
be the appropriate method to monitor or ensure respect for such rights, normally
provided for in the applicable conventions. With regard to the alleged militarization of
Nicaragua, also referred to by the United States to justify its activities, the Court
observes that in international law there are no rules, other than such rules as may be
accepted by the State concerned, by treaty or otherwise, whereby the level of
armaments of a sovereign State can be limited, and this principle is valid for all States
without exception.
7. The 1956 Treaty (paras. 270 to 282)
The Court turns to the claims of Nicaragua based on the Treaty of Friendship,
Commerce and Navigation of 1956, and the claim that the United States has deprived
the Treaty of its object and purpose and emptied it of real content. The Court cannot
however entertain these claims unless the conduct complained of is not "measures . . .
necessary to protect the essential security interests" of the United States, since Article
XXI of the Treaty provides that the Treaty shall not preclude the application of such
measures. With regard to the question what activities of the United States might have
been such as to deprive the Treaty of its object and purpose, the Court makes a
distinction. It is unable to regard all the acts complained of in that light, but considers
that there are certain activities which undermine the whole spirit of the agreement.
These are the mining of Nicaraguan ports, the direct attacks on ports, oil installations,
etc., and the general trade embargo.
The Court also upholds the contention that the mining of the ports is in manifest
contradiction with the freedom of navigation and commerce guaranteed by Article XIX
of the Treaty. It also concludes that the trade embargo proclaimed on 1 May 1985 is
contrary to that article.
The Court therefore finds that the United States is prima facie in breach of an obligation
not to deprive the 1956 Treaty of its object and purpose(pacta sunt servanda), and has
committed acts in contradiction with the terms of the Treaty. The Court has however to
consider whether the exception in Article XXI concerning "measures . . . necessary to
protect the essential security interests" of a Party may be invoked to justify the acts
complained of. After examining the available material, particularly the Executive Order
of President Reagan of 1 May 1985, the Court finds that the mining of Nicaraguan ports,
and the direct attacks on ports and oil installations, and the general trade embargo of
1 May 1985, cannot be justified as necessary to protect the essential security interests
of the United States.
XII. The claim for reparation (paras. 283 to 285)
The Court is requested to adjudge and declare that compensation is due to Nicaragua,
the quantum thereof to be fixed subsequently, and to award to Nicaragua the sum of
370.2 million US dollars as an interim award. After satisfying itself that it has jurisdiction
to order reparation, the Court considers appropriate the request of Nicaragua for the
nature and amount of the reparation to be determined in a subsequent phase of the
proceedings. It also considers that there is no provision in the Statute of the Court either
specifically empowering it or debarring it from making an interim award of the kind
requested. In a cases in which one Party is not appearing, the Court should refrain from
any unnecessary act which might prove an obstacle to a negotiated settlement. The
Court therefore does not consider that it can accede at this stage to this request by
Nicaragua.
XIII. The provisional measures (paras. 286 to 289)
After recalling certain passages in its Order of 10 May 1984, the Court concludes that
it is incumbent on each Party not to direct its conduct solely by reference to what it
believes to be its rights. Particularly is this so in a situation of armed conflict where no
reparation can efface the results of conduct which the Court may rule to have been
contrary to international law
32
XIV. Peaceful settlement of disputes; the Contadora process (paras. 290 to 291)
In the present case the Court has already taken note of the Contadora process, and of
the fact that it had been endorsed by the United Nations Security Council and General
Assembly, as well as by Nicaragua and the United States. It recalls to both Parties to
the present case the need to co-operate with the Contadora efforts in seeking a
definitive and lasting peace in Central America, in accordance with the principle of
customary international law that prescribes the peaceful settlement of international
disputes, also endorsed by Article 33 of the United Nations Charter.
__________
SUMMARY OF THE OPINIONS APPENDED TO
THE JUDGMENT OF THE COURT
Separate Opinion of Judge Nagendra Singh,
President
The operative part of paragraph 292 (16) of the Judgment adopted unanimously by the
Court which enjoins parties to seek a peaceful solution of their disputes in accordance
with international law really rests on the due observance of two basic principles: namely
that of non-use of force in inter-State relations and that of non-intervention in the affairs
of other States. This in the President's view is the main thrust of the Judgment of the
Court rendered with utmost sincerity to serve the best interests of the community.
In fact, the cardinal principle of non-use of force in international relations has been the
pivotal point of a time-honoured legal philosophy that has evolved particularly after the
two world wars of the current century. The Charter provisions as well as the Latin
American Treaty System have not only developed the concept but strengthened it to
the extent that it would stand on its own, even if the Charter and the Treaty basis were
held inapplicable in this case. The obvious explanation is that the original customary
aspect which has evolved with the treaty law development has come now to stay and
survive as the existing modern concept of international law, whether customary,
because of its origins, or "a general principle of international law recognized by civilized
nations". The contribution of the Court has been to emphasize the principle of non-use
of force as one belonging to the realm of jus cogens and hence as the very cornerstone
of the human effort to promote peace in a world torn by strife. Force begets force and
aggravates conflicts, embitters relations and endangers peaceful resolution of the
dispute.
There is also the key doctrine of non-intervention in the affairs of States which is equally
vital for the peace and progress of humanity being essentially needed to promote the
healthy existence of the community. The principle of non-intervention is to be treated
as a sanctified absolute rule of law.
States must observe both these principles namely that of non-use of force and that of
non-intervention in the best interests of peace and order in the community. The Court
has rightly held them both as principles of customary international law although
sanctified by treaty law, but applicable in this case in the former customary
manifestation having been reinvigorated by being further strengthened by the express
consent of States particularly the Parties in dispute here. This must indeed have all the
weight that law could ever commend in any case.
The decision of the Court is in the result of a collegiate exercise reached after prolonged
deliberation and a full exchange of views of no less than fifteen Judges who, working
according to the Statute and Rules of the Court, have examined the legal arguments
and all the evidence before it. In this, as in all other cases, every care has been taken
to strictly observe the procedures prescribed and the decision is upheld by a clear
majority. What is more, the binding character of the Judgment under the Statute (Art.
59) is made sacrosanct by a provision of the UN Charter (Art. 94): all Members of the
United Nations have undertaken an obligation to comply with the Court's decisions
addressed to them and to always respect the validity of the Judgment.
__________
Separate Opinion of Judge Lachs
Judge Lachs begins by drawing attention to the requirements of the Statute in respect
of the personal qualities and diversity of origin that must characterize Members of the
Court, and deprecates any aspersion upon their independence.
On the substance of the Judgment he would have preferred more attention to be given
to foreign assistance to the opposition forces in El Salvador, and different formulae to
have been used in various places.
Judge Lachs returns to some aspects of jurisdiction, considering that insufficient weight
had previously been given to the forty years that had elapsed before any public
objection had been raised against the validity of Nicaragua's acceptance of the Court's
jurisdiction. When that validity had been privately questioned in connection with a case
in the mid-1950s, action should have been taken by the United Nations: Nicaragua
should have been asked to complete any necessary formalities and, if it failed to do so,
would have been removed from the list of States subject to the compulsory jurisdiction
of the Court. The United Nations having taken no action, it was legitimate to view the
imperfection as cured by acquiescence over a very long period. The jurisdiction of the
Court based on the FCN Treaty of 1956 gave no cause for doubt.
Judge Lachs also deals with the question of the justiciability of the case: the close
relationship between legal and political disputes, as between law and politics.
International law today covers such wide areas of international relations that only very
few domains - for instance, the problem of disarmament, or others, specifically
excluded by States - are not justiciable. He specifically instances the case
concerning United States Diplomatic and Consular Staff in Tehran.
Referring to the Court's refusal to grant a hearing to El Salvador at the jurisdictional
stage, Judge Lachs states that he has come to view it as a judicial error which does
not, however, justify any unrelated conclusions.
The broad confrontation between the Parties should, in Judge Lachs's view, be settled
within the framework of the Contadora Plan, in co-operation with all States of the region.
The area, torn by conflicts, suffering from under-development for a long time, requires
a new approach based on equal consideration of the interests of all concerned in the
spirit of good-neighbourly relations.
__________
Separate Opinion of Judge Ruda
33
The separate Opinion of Judge Ruda deals with four subjects. In the first place, Judge
Ruda does not accept the reservation expressed by the United States in the letter dated
18 January 1985 "in respect of any decision by the Court regarding Nicaragua's claims".
In Judge Ruda's view, pursuant to Article 94, paragraph I, of the Charter of the United
Nations, the Member States of the United Nations have formally accepted the obligation
to comply with the Court's decisions.
The second part of the Opinion refers to the Vandenberg Amendment. Judge Ruda
voted against the application of the Amendment, for the reasons stated in the separate
Opinion which he submitted in 1984.
In the third part, Judge Ruda deals with the question of self-defence. He explains that
his conclusions are the same as those reached by the Court, but in his view it is not
necessary to enter into all the factual details, because assistance to rebels is
not per se a pretext for self-defence from the legal point of view.
The fourth part is devoted to the reasons why Judge Ruda, despite having voted in
1984 against the Treaty of Friendship, Commerce and Navigation as a basis of the
Court's jurisdiction, believes he is bound to vote on the substantive issues submitted to
the Court on this subject.
__________
Separate Opinion of Judge Elias
Judge Elias considers that, following the Court's Judgment in the jurisdictional phase,
the multilateral treaty reservation attached to the United States declaration accepting
jurisdiction under the Optional Clause was left in abeyance and had no further
relevance unless El Salvador, Honduras or Costa Rica intervened in the phase on
merits and reparation. For the Court to have applied it was therefore incorrect and
tantamount to invoking a power to revise its decision on jurisdiction and admissibility
on behalf of non-parties to the case.
__________
Separate Opinion of Judge Ago
While subscribing to the Judgment as a whole and approving in particular the position
adopted by the Court concerning the United States' multilateral treaty reservation,
Judge Ago remains hesitant about certain points. For example, he feels that the Court
made a somewhat too hasty finding as to the quasi-identity of substance between
customary international law and the law enshrined in certain major multilateral treaties
of universal character, and was also somewhat too ready to see the endorsement of
certain principles by UN and OAS resolutions as proof of the presence of those
principles in the opinio juris of members of the international community. Judge Ago also
feels obliged to draw attention to what he views as some partially contradictory aspects
of the Court's assessment of the factual and legal situation. He further considers that
some passages of the Judgment show a paucity of legal reasoning to support the
Court's conclusions as to the imputability of certain acts to the Respondent qua acts
giving rise to international responsibility, and would have preferred to see the Court
include a more explicit confirmation of its case-law on this subject.
__________
Separate Opinion of Judge Sette-Camara
Judge Sette-Camara fully concurs with the Judgment because he firmly believes that
"the non-use of force as well as non-intervention - the latter as a corollary of equality of
States and self-determination - are not only cardinal principles of customary
international law but could in addition be recognized as peremptory rules of customary
international law which impose obligations on all States". His separate opinion deals
only with subparagraph (1) of the operative part, against which he has voted. He
maintains that the multilateral treaty reservation, appended to the United States 1946
Declaration of Acceptance of the Jurisdiction of the Court according to Article 36,
paragraph 2, of the Statute, cannot be applied to the present case, since none of the
decisions taken in the operative part can in any way "affect" third States, and in
particular El Salvador. The case is between Nicaragua and the United States and the
binding force of the Court's decision is confined to these two Parties. Judge Sette-
Camara recognizes the right of any State making Declarations of Acceptance to append
to them whatever reservations it deems fit. However, he contends that the Court is free,
and indeed bound, to interpret those reservations. He regrets that the application of the
multilateral treaty reservation debarred the Court from resting the Judgment on the
provisions of the Charter of the United Nations and the Charter of the Organization of
American States, and forced it to resort only to principles of customary international law
and the bilateral Treaty of Friendship, Commerce and Navigation of 1956. He submits
that the law applied by the Judgment would be clearer and more precise if the Court
had resorted to the specific provisions of the relevant multilateral convention
__________
Separate Opinion of Judge Ni
Judge Ni's primary concern, as expressed in his separate opinion, is with respect to the
"multilateral treaty reservation" invoked by the United States. In his view, any
acceptance of its applicability entailed (1) the exclusion of the Court from exercising
jurisdiction in so far as Nicaragua's claims were based on the multilateral treaties in
question, and (2) the preclusion, if the case was on other grounds still in the Court for
adjudication of the merits, of the application of such multilateral treaties. In the instant
case, however, the United States, while invoking the multilateral treaty reservation to
challenge the exercise of jurisdiction by the Court, had in the meantime persistently
claimed that the multilateral treaties, which constitute the very basis of its reservation,
should alone be applied to the case in dispute. That claim amounted in effect to a
negation of its own reservation and, taking into account all the relevant circumstances,
ought to have been considered as a waiver of the multilateral treaty reservation. Such
being the case, Judge Ni differed from the majority of the Court in that he considered
that the rules contained in multilateral treaties, as well as customary international law,
should, where appropriate, have been applied to the case.
__________
Dissenting Opinion of Judge Oda
Judge Oda agrees with the Court's recognition of the applicability of the multilateral
treaty proviso attached to the United States' 1946 declaration but considers that, having
thus decided that the dispute had arisen under a multilateral treaty, it should have
ceased to entertain the application of Nicaragua on the basis of that declaration. The
34
Court had been wrong to interpret the exclusion of the dispute by that proviso as merely
placing restrictions upon the sources of law to which it was entitled to refer.
Judge Oda further believes that, to the extent that the Nicaraguan claims presupposed
the Court's jurisdiction under declarations made pursuant to Article 36 (2) of the Statute,
which refers to "legal disputes", they should have been declared non-justiciable, since
the dispute was not "legal" within the meaning and intention of that clause or, even if it
were, it was not one that the Court could properly entertain: as a political dispute, it was
more suitable for resolution by other organs and procedures. Moreover, the facts the
Court could elicit by examining the evidence in the absence of the Respondent fell far
short of what was needed to show a complete picture.
Judge Oda thus considers that, in so far as the Court could properly entertain the case,
it could do so on the basis of Article 36 (1) of the Statute, where the term "all matters
specially provided for in . . . treaties . . . in force" gave no such grounds for questioning
the "legal" nature of the dispute. The Court could therefore legitimately examine any
breach of the concrete terms of the 1956 Treaty of Friendship, Commerce and
Navigation. In Judge Oda's view, the mining of the Nicaraguan ports had constituted
such a breach, for which the United States had incurred responsibility.
Judge Oda emphasizes that his negative votes on many counts of the Judgment must
not be interpreted as implying that he is opposed to the rules of law concerning the use
of force or intervention, of whose violation the United States has been accused, but are
merely a logical consequence of his convictions on the subject of jurisdiction under
Article 36 (2) of the Statute.
Finally, Judge Oda regrets that the Court has been needlessly precipitate in giving its
views on collective self-defence in its first Judgment to broach that subject.
__________
Dissenting Opinion of Judge Schwebel
Judge Schwebel dissented from the Court's Judgment on factual and legal grounds.
He agreed with the Court in its holdings against the United States for its failure to make
known the existence and location of mines laid by it and its causing the publication of
a manual advocating acts in violation of the law of war. But Judge Schwebel concluded
that the United States essentially acted lawfully in exerting armed pressures against
Nicaragua, both directly and through its support of the contras, because Nicaragua's
prior and sustained support of armed insurgency in El Salvador was tantamount to an
armed attack upon El Salvador against which the United States could react in collective
self-defence in El Salvador's support.
Judge Schwebel found that, since 1979, Nicaragua had assisted and persisted in
providing large-scale, vital assistance to the insurgents in El Salvador. The delictual
acts of Nicaragua had not been confined to providing the Salvadoran rebels with large
quantities of arms, munitions and supplies, which of themselves arguably might be seen
as not tantamount to armed attack. Nicaragua had also joined with the Salvadoran
rebels in the organization, planning and training for their acts of insurgency, and had
provided them with command-and-control facilities, bases, communications and
sanctuary which enabled the leadership of the Salvadoran rebels to operate from
Nicaraguan territory. That scale of assistance, in Judge Schwebel's view, was legally
tantamount to an armed attack. Not only was El Salvador entitled to defend itself
against that armed attack, it had called upon the United States to assist it in the exercise
of collective self-defence. The United States was entitled to do so, through measures
overt or covert. Those measures could be exerted not only in El Salvador but against
Nicaragua on its own territory.
In Judge Schwebel's view, the Court's conclusion that the Nicaraguan Government was
not "responsible for any flow of arms" to the Salvadoran insurgents was not sustained
by "judicial or judicious" considerations. The Court had "excluded, discounted and
excused the unanswerable evidence of Nicaragua's major and maintained intervention
in the Salvadoran insurgency". Nicaragua's intervention in El Salvador in support of the
Salvadoran insurgents was, Judge Schwebel held, admitted by the President of
Nicaragua, affirmed by Nicaragua's leading witness in the case, and confirmed by a
"cornucopia of corroboration".
Even if, contrary to his view, Nicaragua's actions in support of the Salvadoran
insurgency were not viewed as tantamount to an armed attack, Judge Schwebel
concluded that they undeniably constituted unlawful intervention. But the Court,
"remarkably enough", while finding the United States responsible for intervention in
Nicaragua, failed to recognize Nicaragua's prior and continuing intervention in El
Salvador.
For United States measures in collective self-defence to be lawful, they must be
necessary and proportionate. In Judge Schwebel's view, it was doubtful whether the
question of necessity in this case was justiciable, because the facts were so
indeterminate, depending as they did on whether measures not involving the use of
force could succeed in terminating Nicaragua's intervention in El Salvador. But it could
reasonably be held that the necessity of those measures was indicated by "persistent
Nicaraguan failure to cease armed subversion of El Salvador".
Judge Schwebel held that "the actions of the United States are strikingly proportionate.
The Salvadoran rebels, vitally supported by Nicaragua, conduct a rebellion in El
Salvador; in collective self-defence, the United States symmetrically supports rebels
who conduct a rebellion in Nicaragua. The rebels in El Salvador pervasively attack
economic targets of importance in El Salvador; the United States selectively attacks
economic targets of military importance" in Nicaragua.
Judge Schwebel maintained that, in contemporary international law, the State which
first intervenes with the use of force in another State - as by substantial involvement in
the sending of irregulars onto its territory - is, prima facie, the aggressor. Nicaragua's
status as prima facie aggressor can only be confirmed upon examination of the facts.
"Moreover", Judge Schwebel concluded, "Nicaragua has compounded its delictual
behaviour by pressing false testimony on the Court in a deliberate effort to conceal it.
Accordingly, on both grounds, Nicaragua does not come before the Court with clean
hands. Judgment in its favour thus unwarranted, and would be unwarranted even if it
should be concluded - as it should not be - that the responsive actions of the United
States were unnecessary or disproportionate."
__________
Dissenting Opinion of Judge Sir Robert Jennings
35
Judge Sir Robert Jennings agreed with the Court that the United States multilateral
treaty reservation is valid and must be respected. He was unable to accept the Court's
decision that it could, nevertheless, exercise jurisdiction over the case by applying
customary law in lieu of the relevant multilateral treaties. Accordingly, whilst able to vote
in favour of certain of the Court's findings, he felt compelled to vote against its decisions
on the use of force, on intervention, and on the question of self-defence, because in his
view the Court was lacking jurisdiction to decide those matters.
CASE CONCERNING RIGHT OF PASSAGE OVER
INDIAN TERRITORY (MERITS)
Judgment of 12 April 1960
The case concerning Right of Passage over Indian Territory (Portugal v. India) was
referred to the Court by an Application filed on 22 December 1955. In that Application,
the Government of Portugal stated that its territory in the Indian Peninsula included two
enclaves surrounded by the Territory of India, Dadra and Nagar-Aveli. It was in respect
of the communications between those enclaves and the coastal district of Daman, and
between each other, that the question arose of a right of passage in favour of Portugal
through Indian territory and of a correlative obligation binding upon India. The
Application stated that in July 1954 the Government of India prevented Portugal from
exercising that right of passage and that Portugal was thus placed in a position in which
it became impossible for it to exercise its rights of sovereignty over the enclaves.
Following upon the Application, the Court was seised of six preliminary objections
raised by the Government of India. By a Judgment given on 26 November 1957, the
Court rejected the first four objections and joined the fifth and sixth objections to the
Merits.
In its Judgment, the Court:
(a) rejected the Fifth Preliminary Objection by 13 votes to 2;
(b) rejected the Sixth Preliminary Objection by 11 votes to 4;
(c) found, by 11 votes to 4, that Portugal had in 1954 a right of passage over intervening
Indian territory between the enclaves of Dadra and Nagar-Aveli and the coastal district
of Daman and between these enclaves, to the extent necessary for the exercise of
Portuguese sovereignty over the enclaves and subject to the regulation and control of
India, in respect of private persons, civil of officials and goods in general;
(d) found, by 8 votes to 7, that Portugal did not have in 1954 such a right of passage in
respect of armed forces, armed police and arms and ammunition;
(e) found, by 9 votes to 6, that India had not acted contrary to its obligations resulting
from Portugal's right of passage in respect of private persons, civil officials and goods
in general.
The President and Judges Basdevant, Badawi, Kojevnikov and Spiropoulos appended
Declarations to the Judgment of the Court. Judge Wellington Koo appended a Separate
Opinion. Judges Winiarski and Badawi appended a Joint Dissenting Opinion. Judges
Armand-Ugon, Moreno Quintana and Sir Percy Spender, and Judges ad hoc Chagla
and Fernandes, appended Dissenting Opinions.
* on the plane of international law, and had on occasion expressly said so. The fifth
**
In its Judgment the Court referred to the Submissions filed by Portugal which in the first
place requested the Court to adjudge and declare that a right of passage was
possessed by Portugal and must be respected by India; this right was invoked by
Portugal only to the extent necessary for the exercise of its sovereignty over the
enclaves, and it was not contended that passage was accompanied by any immunity
and made clear that such passage remained subject to the regulation and control of
India, which must be exercised in good faith, India being under an obligation not to
prevent the transit necessary for the exercise of Portuguese sovereignty. The Court
then considered the date with reference to which it must ascertain whether the right
invoked existed or did not exist. The question as to the existence of a right of passage
having been put to the Court in respect of the dispute which had arisen with regard to
obstacles placed by India in the way of passage, it was the eve of the creation of those
obstacles that must be selected as the standpoint from which to certain whether or not
such a right existed; the selection of that date would leave open the arguments of India
regarding the subsequent lapse of the right of passage.
Portugal next asked the Court to adjudge and declare that India had not complied with
the obligations incumbent upon it by virtue of the right of passage. But the Court pointed
out that it had not been asked, either in the Application or in the final Submissions of
the Parties, to decide whether or not India's attitude towards those who had instigated
the over-throw of Portuguese authority at Dadra and Nagar-Aveli in July and August
1954 constituted a breach of the obligation, said to be binding upon it under general
international law, to adopt suitable measures to prevent the incursion of subversive
elements into the territory of another State.
Turning then to the future, the Submissions of Portugal requested the Court to decide
that India must end the measures by which it opposed the exercise of the right of
passage or, if the Court should be of opinion that there should be a temporary
suspension of the right, to hold that that suspension should end as soon as the course
of events disclosed that the justification for the suspension had disappeared. Portugal
had previously invited the Court to hold that the arguments of India concerning its right
to adopt an attitude of neutrality, the application of the United Nations Charter and the
existence in the enclaves of a local government were without foundation. The Court,
however, considered that it was no part of its judicial function to declare in the operative
part of its Judgment that any of those arguments was or was not well founded.
* the Maratha ruler in 1783 and 1785, as having conferred on Portugal sovereignty over
**
Before proceeding to the consideration of the Merits, the Court had to ascertain whether
it had jurisdiction to do so, a jurisdiction which India had expressly contested.
In its Fifth Preliminary Objection the Government of India relied upon the reservation in
its Declaration of 28 February 1940 accepting the jurisdiction of the Court, which
excluded from that jurisdiction disputes with regard to questions which by international
law fall exclusively within the jurisdiction of India. The Court pointed out that in the
course of the proceedings both Parties had taken their stand on grounds which were
36
objection could not therefore be upheld.
The Sixth Preliminary Objection likewise related to a limitation in the Declaration of
28 February 1940. India, which had accepted the jurisdiction of the Court "over all
disputes arising after February 5th, 1930, with regard to situations or facts subsequent
to the same date", contended that the dispute did not satisfy either of these two
conditions. As to the first condition, the Court pointed out that the dispute could not
have arisen until all its constituent elements had come into existence; among these
were the obstacles which India was alleged to have placed in the way of exercise of
passage by Portugal in 1954; even if only that part of the dispute relating to the
Portuguese claim to a right of passage were to be considered, certain incidents had
occurred before 1954, but they had not led the Parties to adopt clearly-defined legal
positions as against each other; accordingly, there was no justification for saying that
the dispute arose before 1954. As to the second condition, the Permanent Court of
International Justice had in 1938 drawn a distinction between the situations or facts
which constituted the source of the rights claimed by one of the Parties, and the
situations or facts which were the source of the dispute. Only the latter were to be taken
into account for the purpose of applying the Declaration. The dispute submitted to the
Court was one with regard to the situation of the enclaves, which had given rise to
Portugal's claim to a right of passage and, at the same time, with regard to the facts of
1954 which Portugal advanced as infringements of that right; it was from all of this that
the dispute arose, and this whole, whatever may have been the earlier origin of one of
its parts, came into existence only after 5 February 1930. The Court had not been asked
for any finding whatsoever with regard to the past prior to that date; it was therefore of
opinion that the sixth objection should not be upheld and, consequently, that it had
jurisdiction.
*
**
On the merits, India had contended in the first place that the right of passage claimed
by Portugal was too vague and contradictory to enable the Court to pass judgment
upon it by the application of the legal rules enumerated in Article 38 (1) of the Statute.
There was no doubt that the day-to-day exercise of the right might give rise to delicate
questions of application but that was not, in the view of the Court, sufficient ground for
holding that the right was not susceptible of judicial determination.
Portugal had relied on the Treaty of Poona of 1779 and on sanads (decrees) issued by
the enclaves with the right of passage to them; India had objected that what was alleged
to be the Treaty of 1779 was not validly entered into and never became in law a treaty
binding upon the Marathas. The Court, however, found that the Marathas did not at any
time cast any doubt upon the validity or binding character of the Treaty. India had further
contended that the Treaty and the two sanads did not operate to transfer sovereignty
over the assigned villages to Portugal but only conferred, with respect to the villages, a
revenue grant. The Court was unable to conclude from an examination of the various
texts of the Treaty of 1779 that the language employed therein was intended to transfer
sovereignty; the expressions used in the two sanads, on the other hand, established
that what was granted to the Portuguese was only a revenue tenure called
a jagir or saranjam, and not a single instance had been brought to the notice of the
Court in which such a grant had been construed as amounting to a cession of
sovereignty. There could, therefore, be no question of any enclave or of any right of
passage for the purpose of exercising sovereignty over enclaves.
The Court found that the situation underwent a change with the advent of the British as
sovereign of that part of the country in place of the Marathas: Portuguese sovereignty
over the villages had been recognized by the British in fact and by implication and had
subsequently been tacitly recognized by India. As a consequence the villages had
acquired the character of Portuguese enclaves within Indian territory and there had
developed between the Portuguese and the territorial sovereign with regard to passage
to the enclaves a practice upon which Portugal relied for the purpose of establishing
the right of passage claimed by it. It had been objected on behalf of India that no local
custom could be established between only two States, but the Court found it difficult to
see why the number of States between which a local custom might be established on
the basis of long practice must necessarily be larger than two.
It was common ground between the Parties that during the British and post-British
periods the passage of private persons and civil officials had not been subject to any
restrictions beyond routine control. Merchandise other than arms and ammunition had
also passed freely subject only, at certain times, to customs regulations and such
regulation and control as were necessitated by considerations of security or revenue.
The Court therefore concluded that, with regard to private persons, civil officials and
goods in general there had existed a constant and uniform practice allowing free
passage between Daman and the enclaves, it was, in view of all the circumstances of
the case, satisfied that that practice had been accepted as law by the Parties and had
given rise to a right and a correlative obligation.
As regards armed forces, armed police and arms and ammunition, the position was
different.
It appeared that, during the British and post-British periods, Portuguese armed forces
and armed police had not passed between Daman and the enclaves as of right, and
that after 1878 such passage could only take place with previous authorization by the
British and later by India, accorded either under a reciprocal arrangement already
agreed to, or in individual cases: it had been argued that that permission was always
granted, but there was nothing in the record to show that grant of permission was
incumbent on the British or on India as an obligation.
A treaty of 26 December 1878 between Great Britain and Portugal had laid down that
the armed forces of the two Governments should not enter the Indian dominions of the
other, except in specified cases or in consequence of a formal request made by the
party desiring such entry. Subsequent correspondence showed that this provision was
applicable to passage between Daman and the enclaves: it had been argued on behalf
of Portugal that on twenty-three occasions armed forces crossed British territory
between Daman and the enclaves without obtaining permission, but in 1890, the
Government of Bombay had forwarded a complaint to the effect that armed men in the
37
service of the Portuguese Government were in the habit of passing without formal
request through a portion of British territory en route from Daman to Nagar-Aveli which
would appear to constitute a breach of the Treaty; on 22 December, the Governor-
General of Portuguese India had replied: "Portuguese troops never cross British
territory without previous permission", and the Secretary-General of the Government of
Portuguese India stated on 1 May 1891: "On the part of this Government injunctions
will be given for the strictest observance of . . . the Treaty". The requirement of a formal
request before passage of armed forces could take place had been repeated in an
agreement of 1913. With regard to armed police, the Treaty of 1878 and the Agreement
of 1913 had regulated passage on the basis of reciprocity, and an agreement of 1920
had provided that armed police below a certain rank should not enter the territory of the
other party without consent previously obtained; finally, an agreement of 1940
concerning passage of Portuguese armed police over the road from Daman to Nagar-
Aveli had provided that, if the party did not exceed ten in number, intimation of its
passage should be given to the British authorities within twenty-four hours, but that, in
other cases, "the existing practice should be followed and concurrence of the British
authorities should be obtained by prior notice as heretofore."
As regards arms and ammunition, the Treaty of 1878 and rules framed under the Indian
Arms Act of 1878 prohibited the importation of arms, ammunition or military stores from
Portuguese India and its export to Portuguese India without a special licence.
Subsequent practice showed that this provision applied to transit between Daman and
the enclaves.
The finding of the Court that the practice established between the Parties had required
for the passage of armed forces, armed police and arms and ammunition the
permission of the British or Indian authorities rendered it unnecessary for the Court to
determine whether or not, in the absence of the practice that actually prevailed, general
international custom or general principles of law recognized by civilized nations, which
had also been invoked by Portugal, could have been relied upon by Portugal in support
of its claim to a right of passage in respect of these categories. The Court was dealing
with a concrete case having special features: historically the case went back to a period
when, and related to a region in which, the relations between neighbouring States were
not regulated by precisely formulated rules but were governed largely by practice:
finding a practice clearly established between two States, which was accepted by the
Parties as governing the relations between them, the Court must attribute decisive
effect to that practice. The Court was, therefore, of the view that no right of passage in
favour of Portugal involving a correlative obligation on India had been established in
respect of armed forces, armed police and arms and ammunition.
Having found that Portugal had, in 1954, a right of passage in respect of private
persons, civil officials and goods in general, the Court lastly proceeded to consider
whether India had acted contrary to its obligation resulting from Portugal's right of
passage in respect of any of these categories. Portugal had not contended that India
had acted contrary to that obligation before July 1954, but it complained that passage
was thereafter denied to Portuguese nationals of European origin, to native Indian
Portuguese in the employ of the Portuguese Government and to a delegation that the
Governor of Daman proposed, in July 1954, to send to Nagar-Aveli and Dadra. The
Court found that the events which had occurred in Dadra on 21-22 July 1954 and which
had resulted in the overthrow of Portuguese authority in that enclave had created
tension in the surrounding Indian district, having regard to that tension, the Court was
of the view that India's refusal of passage was covered by its power of regulation and
control of the right of passage of Portugal.
For these reasons, the Court reached the findings indicated above.
FISHERIES JURISDICTION CASE
(UNITED KINGDOM v. ICELAND)
(JURISDICTION OF THE COURT)
Judgment of 2 February 1973
In its Judgment on the question of its jurisdiction in the case concerning Fisheries
Jurisdiction (United Kingdom v. Iceland), the Court found by 14 votes to 1 that it had
jurisdiction to entertain the Application filed by the United Kingdom on 14 April 1972
and to deal with the merits of the dispute.
The Court was composed as follows: President Sir Muhammad Zafrulla Khan, Vice-
President Ammoun and Judges Sir Gerald Fitzmaurice, Padilla Nervo, Forster, Gros,
Bengzon, Petr�n, Lachs, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov and
Jim�nez de Ar�chaga.
The President of the Court appended a declaration to the Judgment. Judge Sir Gerald
Fitzmaurice appended a separate opinion, and Judge Padilla Nervo a dissenting
opinion.
* thus falls exactly within the terms of the compromissory clause.
**
R�sum� of the Proceedings (paras. 1-12 of the Judgment)
In its Judgment the Court recalls that on 14 April 1972 the Government of the United
Kingdom instituted proceedings against Iceland in respect of a dispute concerning the
proposed extension by the Icelandic Government of its exclusive fisheries jurisdiction
to a distance of 50 nautical miles from the baselines around its coasts. By a letter of 29
May 1972 the Minister for Foreign Affairs of Iceland informed the Court that his
Government was not willing to confer jurisdiction on it and would not appoint an Agent.
By Orders of 17 and 18 August 1972 the Court indicated certain interim measures of
protection at the request of the United Kingdom and decided that the first written
pleadings should be addressed to the question of its jurisdiction to deal with the case.
The Government of the United Kingdom filed a Memorial, and the Court heard oral
argument on its behalf at a public hearing on 5 January 1973. The Government of
Iceland has filed no pleadings and was not represented at the hearing.
It is, the Court observes, to be regretted that the Government of Iceland has failed to
appear to plead the objections to the Court's jurisdiction which it is understood to
entertain. Nevertheless the Court, in accordance with its Statute and its settled
38
jurisprudence, must examine the question on its own initiative, a duty reinforced by
Article 53 of the Statute, whereby, whenever one of the parties does not appear, the
Court must satisfy itself that it has jurisdiction before finding on the merits. Although the
Government of Iceland has not set out the facts and law on which its objection is based,
or adduced any evidence, the Court proceeds to consider those objections which might,
in its view, be raised against its jurisdiction. In so doing, it avoids not only all expressions
of opinion on matters of substance, but also any pronouncement which might prejudge
or appear to prejudge any eventual decision on the merits.
Compromissory clause of the 1961 Exchange of Notes (paras. 13-23 of the Judgment)
To found the Court's jurisdiction, the Government of the United Kingdom relies on an
Exchange of Notes which took place between it and the Government of Iceland on 11
March 1961, following an earlier dispute over fisheries. By that Exchange of Notes the
United Kingdom undertook to recognise an exclusive Icelandic fishery zone up to a limit
of 12 miles and to withdraw its fishing vessels from that zone over a period of 3 years.
The Exchange of Notes featured a compromissory clause in the following terms:
"The Icelandic Government will continue to work for the implementation of the Althing
Resolution of May 5, 1959, regarding the extension of fisheries jurisdiction around
Iceland, but shall give to the United Kingdom Government six months' notice of such
extension, and, in case of a dispute in relation to such extension, the matter shall, at
the request of either party, be referred to the International Court of Justice."
The Court observes that there is no doubt as to the fulfilment by the Government of the
United Kingdom of its part of this agreement or as to the fact that the Government of
Iceland, in 1971, gave the notice provided for in the event of a further extension of its
fisheries jurisdiction. Nor is there any doubt that a dispute has arisen, that it has been
submitted to the Court by the United Kingdom and that, on the face of it, the dispute
Although, strictly speaking, the text of this clause is sufficiently clear for there to be no
need to investigate the preparatory work, the Court reviews the history of the
negotiations which led to the Exchange of Notes, finding confirmation therein of the
parties' intention to provide the United Kingdom, in exchange for its recognition of the
12-mile limit and the withdrawal of its vessels, with a genuine assurance which
constituted a sine qua non for the whole agreement, namely the right to challenge
before the Court the validity of any further extension of Icelandic fisheries jurisdiction
beyond the 12-mile limit.
It is thus apparent that the Court has jurisdiction.
Validity and duration of the 1961 Exchange of Notes (paras. 24-45 of the Judgment)
The Court next considers whether, as has been contended the agreement embodied
in the 1961 Exchange of Notes either was initially void or has since ceased to operate.
In the above-mentioned letter of 29 May 1972 the Minister for Foreign Affairs of Iceland
said that the 1961 Exchange of Notes had taken place at a time when the British Royal
Navy had been using force to oppose the 12-mile fishery limit. The Court, however,
notes that the agreement appears to have been freely negotiated on the basis of perfect
equality and freedom of decision on both sides.
In the same letter the Minister for Foreign Affairs of Iceland expressed the view that "an Company, by the conduct of various organs of the Spanish State. The Spanish
undertaking for judicial settlement cannot be considered to be of a permanent nature" Government raised four Preliminary Objections.
and the Government of Iceland had indeed, in an aide-m�moire of 31 August 1971, The Court rejected the first Preliminary Objection by 12 votes to 4, and the second by
10 votes to 6. It joined the third Objection to the merits by 9 votes to 7 and the fourth
asserted that the object and purpose of the provision for recourse to judicial settlement
by 10 votes to 6.
had been fully achieved. The Court notes that the compromissory clause contains no
President Sir Percy Spender and Judges Spiropoulos, Koretsky and Jessup appended
express provision regarding duration. In fact, the right of the United Kingdom to
Declarations to the Judgment.
challenge before the Court any claim by Iceland to extend its fisheries zone was subject
Vice-President Wellington Koo and Judges Tanaka and Bustamante y Rivero
to the assertion of such a claim and would last so long as Iceland might seek to
appended Separate Opinions.
implement the 1959 Althing resolution.
Judge Morelli and Judge ad hoc Armand-Ugon appended Dissenting Opinions.
In a statement to the Althing (the Parliament of Iceland) on 9 November 1971, the Prime
*
Minister of Iceland alluded to changes regarding "legal opinion on fisheries jurisdiction".
**
His argument appeared to be that as the compromissory clause was the price that
First Preliminary Objection
Iceland had paid at the time for the recognition by the United Kingdom of the 12-mile
In its Judgment, the Court recalled that Belgium had on 23 September 1958 filed with
limit, the present general recognition of such a limit constituted a change of legal
the Court an earlier Application against Spain in respect of the same facts, and Spain
circumstances that relieved Iceland of its commitment. The Court observes that, on the
had then raised three Preliminary Objections. On 23 March 1961 the Applicant, availing
contrary, since Iceland has received benefits from those parts of the agreement already
itself of the right conferred upon it by Article 69, paragraph 2, of the Rules of Court, had
executed, it behoves it to comply with its side of the bargain.
informed the Court that it was not going on with the proceedings; notification having
The letter and statement just mentioned also drew attention to "the changed
been received from the Respondent that it had no objection, the Court had removed
circumstances resulting from the ever-increasing exploitation of the fishery resources
the case from its List (10 April 1961). In its first Preliminary Objection, the Respondent
in the seas surrounding Iceland". It is, notes the Court, admitted in international law that
contended that this discontinuance precluded the Applicant from bringing the present
if a fundamental change of the circumstances which induced parties to accept a treaty
proceedings and advanced five arguments in support of its contention.
radically transforms the extent of the obligations undertaken, this may, under certain
The Court accepted the first argument, to the effect that discontinuance is a purely
conditions, afford the party affected a ground for invoking the termination or suspension
procedural act the real significance of which must be sought in the attendant
of the treaty. It would appear that in the present case there is a serious difference of
circumstances.
views between the Parties as to whether there have been any fundamental changes in
On the other hand, the Court was unable to accept the second argument namely that
fishing techniques in the waters around Iceland. Such changes would, however, be
a discontinuance must always be taken as signifying a renunciation of any further right
relevant only for any eventual decision on the merits. It cannot be said that the change
of action unless the right to start new proceedings is expressly reserved. As the
of circumstances alleged by Iceland has modified the scope of the jurisdictional
Applicant's notice of discontinuance contained no motivation and was very clearly
obligation agreed to in the 1961 Exchange of Notes. Moreover, any question as to the
confined to the proceedings instituted by the first Application, the Court considered that
jurisdiction of the Court, deriving from an alleged lapse of the obligation through
the onus of establishing that the discontinuance meant something more than a decision
changed circumstances, is for the Court to decide, by virtue of Article 36, paragraph 6,
to terminate those proceedings was placed upon the Respondent.
of its Statute.
The Respondent, as its third argument, asserted that there had been an understanding
between the Parties; it recalled that the representatives of the private Belgian interests
CASE CONCERNING THE BARCELONA TRACTION,
concerned had made an approach with a view to opening negotiations and that the
LIGHT AND POWER COMPANY, LIMITED
representatives of the Spanish interests had laid down as a prior condition the final
(PRELIMINARY OBJECTIONS)
withdrawal of the claim. According to the Respondent what was meant by this was that
Judgment of 24 July 1964 the discontinuance would put an end to any further right of action, but the Applicant
denied that anything more was intended than the termination of the then current
Proceedings in the case concerning the Barcelona Traction, Light and Power proceedings. The Court was unable to find at the governmental level any evidence of
Company, Limited (Belgium v. Spain) were instituted by an Application of 19 June 1962 any such understanding as was alleged by the Respondent; it seemed that the problem
in which the Belgian Government sought reparation for damage claimed to have been had been deliberately avoided lest the foundation of the interchanges be shattered. Nor
caused to Belgian nationals, shareholders in the Canadian Barcelona Traction had the Respondent, on whom lay the onus of making its position clear, expressed any
condition when it indicated that it did not object to the discontinuance.
39
The Respondent Government then advanced a fourth argument, having the character
of a plea of estoppel, to the effect that, independently of the existence of any
understanding, the Applicant had by its conduct misled the Respondent about the
import of the discontinuance, but for which the Respondent would not have agreed to
it, and would not thereby have suffered prejudice. The Court did not consider that the
alleged misleading Belgian misrepresentations had been established and could not see
what the Respondent stood to lose by agreeing to negotiate on the basis of a simple
discontinuance; if it had not agreed to the discontinuance, the previous proceedings
would simply have continued, whereas negotiations offered a possibility of finally
settling the dispute. Moreover, if the negotiations were not successful and the case
started again, it would still be possible once more to put forward the previous
Preliminary Objections. Certainly the Applicant had framed its second Application with
a foreknowledge of the probable nature of the Respondent's reply and taking it into
account but, if the original proceedings had continued, the Applicant could likewise
always have modified its submissions.
The final argument was of a different order. The Respondent alleged that the present
proceedings were contrary to the spirit of the Hispano-Belgian Treaty of Conciliation,
Judicial Settlement and Arbitration of 19 July 1927 which, according to the Applicant,
conferred competence on the Court. The preliminary stages provided for by the Treaty
having already been gone through in connection with the original proceedings, the
Treaty could not be invoked a second time to seise the Court of the same complaints.
The Court considered that the Treaty processes could not be regarded as exhausted
so long as the right to bring new proceedings otherwise existed and until the case had
been prosecuted to judgment.
For these reasons, the Court rejected the first Preliminary Objection.
Second Preliminary Objection
To found the jurisdiction of the Court the Applicant relied on the combined effect of
Article 17 (4) of the 1927 Treaty between Belgium and Spain, according to which if the
other methods of settlement provided for in that Treaty failed either party could bring
any dispute of a legal nature before the Permanent Court of International Justice, and
Article 37 of the Statute of the International Court of Justice, which reads as follows:
"Whenever a treaty or convention in force provides for reference of a matter . . . to the
Permanent Court of International Justice, the matter shall, as between the parties to
the present Statute, be referred to the International Court of Justice."
As the principal aspect of its objection, the Respondent maintained that although the
1927 Treaty might still be in force, Article 17 (4) had lapsed in April 1946 on the
dissolution of the Permanent Court to which that article referred. No substitution of the
present for the former Court had been effected in that article before the dissolution,
Spain not being then a party to the Statute; in consequence, the 1927 Treaty had
ceased to contain any valid jurisdictional clause when Spain was admitted to the United
Nations and became ipso facto a party to the Statute (December 1955). In other words
Article 37 applied only between States which had become parties to the Statute
previous to the dissolution of the Permanent Court, and that dissolution had brought
about the extinction of jurisdictional clauses providing for recourse to the Permanent
40
Court unless they had previously been transformed by the operation of Article 37 into
clauses providing for recourse to the present Court.
The Court found that this line of reasoning had first been advanced by the Respondent
after the decision given by the Court on 26 May 1959 in the case concerning the Aerial
Incident of 27 July 1955 (Israel v. Bulgaria). But that case had been concerned with a
unilateral declaration in acceptance of the compulsory jurisdiction of the Permanent
Court and not with a treaty. It thus had reference not to Article 37 but to Article 36,
paragraph 5, of the Statute.
As regards Article 37, the Court recalled that in 1945 its drafters had intended to
preserve as many jurisdictional clauses as possible from becoming inoperative by
reason of the prospective dissolution of the Permanent Court. It was thus difficult to
suppose that they would willingly have contemplated that the nullification of the
jurisdictional clauses whose continuation it was desired to preserve would be brought
about by the very event the effects of which Article 37 was intended to parry.
Only three conditions were actually stated in Article 37. They were that there should be
a treaty in force; that it should contain a provision for the reference of a matter to the
Permanent Court; and that the dispute should be between States parties to the Statute.
In the present case the conclusion must be that the 1927 Treaty being in force and
containing a provision for reference to the Permanent Court, and the parties to the
dispute being parties to the Statute, the matter was one to be referred to the
International Court of Justice, which was the competent forum.
It was objected that this view led to a situation in which the jurisdictional clause
concerned was inoperative and then after a gap of years became operative again, and
it was asked whether in those circumstances any true consent could have been given
by the Respondent to the Court's jurisdiction. The Court observed that the notion of
rights and obligations that are in abeyance but not extinguished was common; States
becoming parties to the Statute after the dissolution of the Permanent Court must be
taken to have known that one of the results of their admission would be the reactivation
by reason of Article 37 of certain jurisdictional clauses. The contrary position maintained
by the Respondent would create discrimination between States according as to
whether they became parties to the Statute before or after the dissolution of the
Permanent Court.
As regards Article 17 (4) more particularly, the Court considered that it was an integral
part of the 1927 Treaty. It would be difficult to assert that the basic obligation to submit
to compulsory adjudication provided for in the Treaty was exclusively dependent on the
existence of a particular forum. If it happened that the forum went out of existence, the
obligation became inoperative but remained substantively in existence and could be
rendered operative once more if a new tribunal was supplied by the automatic operation
of some other instrument. Article 37 of the Statute had precisely that effect. Accordingly,
"International Court of Justice" must now be read for "Permanent Court of International
Justice".
As a subsidiary plea, the Respondent contended that if Article 37 of the Statute
operated to reactivate Article 17 (4) of the Treaty in December 1955, what came into
existence at that date was a new obligation between the Parties; and that just as the
original applied only to disputes arising after the Treaty date, so the new obligation
could apply only to disputes arising after December 1955. The dispute was accordingly
not covered since it had arisen previous to December 1955. In the opinion of the Court,
when the obligation to submit to compulsory adjudication was revived as to its
operation, it could only function in accordance with the Treaty providing for it and it
continued to relate to any disputes arising after the Treaty date.
For these reasons the Court rejected the second Preliminary Objection both in its
principal and in its subsidiary aspects.
Third and Fourth Preliminary Objections
The Respondent's third and fourth Preliminary Objections involved the question of
whether the claim was admissible. The Applicant had submitted alternative pleas that
these objections, unless rejected by the Court, should be joined to the merits.
By its third Preliminary Objection the Respondent denied the legal capacity of the
Applicant to protect the Belgian interests on behalf of which it had submitted its claim.
The acts complained of had taken place not in relation to any Belgian natural or juristic
person but in relation to the Barcelona Traction Company, a juristic entity registered in
Canada, the Belgian interests concerned being in the nature of shareholding interests
in that company. The Respondent contended that international law does not recognize,
in respect of injury caused by a State to the foreign company, any diplomatic protection
of shareholders exercised by a State other than the national State of the company. The
Applicant contested this view.
The Court found that the question of the jus standi of a government to protect the
interests of shareholders raised an antecedent question of what was the juridical
situation in respect of shareholding interests, as recognized by international law. The
Applicant thus necessarily invoked rights which, so it contended, were conferred on it
in respect of its nationals by the rules of international law concerning the treatment of
foreigners. Hence a finding by the Court that it had no jus standi would be tantamount
to a finding that those rights did not exist and that the claim was not well-founded in
substance.
The third Objection had certain aspects which were of a preliminary character, but
involved a number of closely interwoven strands of mixed law, fact and status to a
degree such that the Court could not pronounce upon it at the present stage in full
confidence that it was in possession of all the elements that might have a bearing on
its decisions. The proceedings on the merits would thus place the Court in a better
position to adjudicate with a full knowledge of the facts.
The foregoing considerations applied a fortiori to the fourth Preliminary Objection,
wherein the Respondent alleged failure to exhaust local remedies. This allegation was
in fact inextricably interwoven with the issues of denial of justice which constituted the
major part of the merits of the case.
Accordingly, the Court joined the third and fourth Preliminary Objections to the merits.

41