Aerial incidence case: Us vs.

Bulgaria ICJ 1959

Facts:
On the morning of July 27th, 1955, the civil Constellation aircraft No. 4X-AKC, wearing the Israel
colours and belonging to the Israel Company El Al Israel Airlines, Ltd., making a scheduled
commercial flight between Vienna, Austria, and Lod (Lydda) in Israel, having, without previous
authorization, penetrated over Bulgarian territory, was shot down by aircraft of the Bulgarian
anti-aircraft defense forces. After catching fire, the Isreal crew, consisting of seven members,
and also the 51 passangers of various nationalities were killed.

In its Judgment, the Court first considered the First Preliminary Objection by Bulgaria.
In order to find the basis for the jurisdiction of the Court, the Government of Israel invoked the Declaration of accep
of Signature of the Statute of the Permanent Court of International Justice, and Article 36, paragraph 5, of the Statut
"Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are ski
acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to
To justify the application of the latter provision to the Bulgarian Declaration of 1921, the Government of Israel relied
Justice on December 14th, 1955, as the result of its admission to the United Nations. The Bulgarian Government den
jurisdiction of the International Court of Justice.
The Court had to determine whether Article 36, paragraph 5, is applicable to the Bulgarian Declaration. That it shou
Francisco Conference and were signatories of the Charter and of the Statute can easily be understood. But is this pr
text does not say so explicitly.
The Court observes that at the time of the adoption of the Statute a fundamental difference existed between the po
admitted to the United Nations. This difference derived from the situation which Article 36, paragraph 5, was meant
relating to the Permanent Court, which was on the point of disappearing. The question which the signatory States w
different form in the future as regards the other States.
Article 36, paragraph 5, considered in its application to States signatories of the Statute, effected a simple operation
signatory States. For the latter, such a transfer must necessarily involve two distinct operations, which might be sep
had to have been preserved with immediate effect; on the other hand, they would have had to be transferred to the
factors of the problem, there were special difficulties in resolving it in respect of acceptances by non-signatory State
obligation while modifying its subject-matter. So far as non-signatory States were concerned, the Statute, in the abs
Shortly after the entry into force of the Statute, the dissolution of the Permanent Court freed them from that obligat
longer arise so far as they were concerned; all that could be envisaged in their case was the creation of a new oblig
allow that provision to do in their case something quite different from what it did in the case of signatory States. It i
to other States, for instance, an offer to consider their acceptance of the compulsory jurisdiction of the Permanent C
kind in Article 36, paragraph 5.
To restrict the application of this provision to the signatory States is to take into account the purpose for which it wa
and, in consequence, the lapsing of acceptances of its compulsory jurisdiction were in contemplation. Rather than e
acceptance, it was sought to provide for this transitory situation by a transitional provision. The situation is entirely
long since disappeared, a State becomes party to the Statute of the new Court. To the extent that the records of the
Article 36, paragraph 5, they confirm that this paragraph was intended to deal with declarations of signatory States
However, the Government of Israel construed Article 36, paragraph 5, as covering a declaration made by a State wh
to the Statute of the International Court of Justice much later.
The Court, considering the matter from this angle also, found that Article 36, paragraph 5, could not in any event be
namely, December 14th, 1955. At that date, however, the Declaration of 1921 was no longer in force in consequenc
Declaration of the compulsory jurisdiction of the Permanent Court was devoid of object, since that Court was no long
of preserving all the declarations which were in existence at the time of the signature or entry into force of the Char
to the Statute. The provision determines, in respect of a State to which it applies, the birth of the compulsory jurisdi
made the declaration should be a party to the Statute, (2) that the declaration of that State should still be in force. S
Nations, it cannot be said that at that time that Declaration was still in force. The second condition is therefore not s
Thus the Court finds that Article 36, paragraph 5, is not applicable to the Bulgarian Declaration of 1921. This view is
preserve existing acceptances and not to restore legal force to undertakings which had expired. On the other hand,
provisions of the Statute, including Article 36. But Bulgaria's acceptance of Article 36, paragraph 5, does not constit
given only in accordance with Article 36, paragraph 2.
Article 36, paragraph 5, cannot therefore lead the Court to find that the Bulgarian Declaration of 1921 provides a ba
the Court to proceed to consideration of the other Bulgarian Preliminary Objections.
*
**
Consequently, the Court finds, by twelve votes to four, that it is without jurisdiction to adjudicate upon the dispute b
Vice-President Zafrulla Khan has appended a Declaration to the Judgment. Judges Badawi and Armand-Ugon have a

Wellington Koo and Sir Percy Spender have appended to the Judgment a statement of their Joint Dissenting Opinion.
Opinion.

Nicaragua vs. USA

Facts of the Case:

In July 1979 the Government of President Somoza collapsed following an armed opposition led
by the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government installed by
FSLN began to meet armed opposition from supporters of the former Somoza Government and
ex-members of the National Guard. The US initially supportive of the new government
changed its attitude when, according to the United States, it found that Nicaragua was
providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated
United States aid to Nicaragua and in September 1981, according to Nicaragua, the United
States decided to plan and undertake activities directed against Nicaragua.
The armed opposition to the new Government was conducted mainly by (1)
Fuerza Democratica Nicaragense (FDN), which operated along the border with Honduras, and
(2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa
Rica, (see map of the region). Initial US support to these groups fighting against the Nicaraguan
Government (called contras) was covert. Later, the United States officially acknowledged its
support (for example: In 1983 budgetary legislation enacted by the United States Congress
made specific provision for funds to be used by United States intelligence agencies for
supporting directly or indirectly military or paramilitary operations in Nicaragua).
Nicaragua also alleged that the United States is effectively in control of the contras, the United
States devised their strategy and directed their tactics and that they were paid for and directly
controlled by United States personal. Nicaragua also alleged that some attacks were carried out
by United States military with the aim to overthrow the Government of Nicaragua. Attacks
against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil installations
and a naval base. Nicaragua alleged that aircrafts belonging to the United States flew over
Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate
the population.
The United States did not appear before the ICJ at the merit stages, after refusing to accept the
ICJs jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing,
however, stated that it relied on an inherent right of collective self-defence guaranteed in A. 51
of the UN Charter by providing, upon request, proportionate and appropriate assistance to
Costa Rica, Honduras and El Salvador in response to Nicaraguas alleged acts aggression
against those countries (paras. 126, 128).
Questions before the Court:
Did the United States breach its customary international law obligation not to intervene in the
affairs of another State when it trained, armed, equipped and financed the contra forces or
encouraged, supported and aided the military and paramilitary activities against Nicaragua?
Did the United States breach its customary international law obligation not to use force
against another State when it directly attacked Nicaragua in 1983 1984 and when its
activities in bullet point 1 above resulted in the use of force?
If so, can the military and paramilitary activities that the United States undertook in and
against Nicaragua be justified as collective self-defence?
Did the United States breach its customary international law obligation not to violate the
sovereignty of another State when it directed or authorized its aircrafts to fly over Nicaraguan
territory and by acts referred to in bullet point 2 above?
Did the United States breach its customary international law obligations not to violate the
sovereignty of another State, not to intervene in its affairs, not to use force against another
State and not to interrupt peaceful maritime commerce when it laid mines in the internal
waters and the territorial sea of Nicaragua?
ICJ decision: The United States violated customary international law in relation to bullet points
1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could not rely on
collective self-defence to justify its use of force against Nicaragua.
Relevant Findings of the Court:
1. The court held that the United States breached its customary international law
obligation not to use force against another State: (1) when it directly attacked

Nicaragua in 1983 1984; and (2) when its activities with the contra forces resulted
in the threat or use of force (see paras 187 -201).
The Court held that:
The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary
international law.
In a controversial finding the court sub-classified the use of force as: (1) the most grave forms
of the use of force (i.e. those that constitute an armed attack) and (2) the less grave form
(i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in
another State when the acts referred to involve a threat or use of force not amounting to an
armed attack).
The United States violated the customary international law prohibition on the use of force when
it laid mines in Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports,
oil installations and a naval base (see below). The United States could justify its action on
collective self-defence, if certain criteria were met this aspect is discussed below.
The United States violated the customary international law prohibition on the use of force when
it assisted the contras by organizing or encouraging the organization of irregular forces and
armed bands for incursion into the territory of another state and participated in acts of civil
strifein another State when these acts involved the threat or use of force.
The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua
argued that the timing of the offensives against it was determined by the United States: i.e. an
offensive could not be launched until the requisite funds were available. The Court held that
it does not follow that each provision of funds by the United States was made to set in motion a
particular offensive, and that that offensive was planned by the United States. The Court held
further that while the arming and training of the contras involved the threat or use of force
against Nicaragua, the supply of funds, in it self, only amounted to an act of intervention in the
internal affairs of Nicaragua (para 227) this aspect is discussed below.
What is an armed attack?
A controversial but interesting aspect of the Courts judgement was its definition of an armed
attack. The Court held that an armed attack included:
(1) action by regular armed forces across an international border; and
(2) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State of such gravity as to amount to (inter
alia) an actual armed attack conducted by regular forces, or its (the States)
substantial involvement therein
NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on
the Definition of Aggression.
Mere frontier incidents are not considered as an armed attack unless because of its scale and
effects it would have been classified as an armed attack if it was carried out by regular forces.
Assistance to rebels in the form of provision of weapons or logistical support did not
constitute an armed attack it can be regarded as a threat or use of force, or an intervention in
the internal or external affairs of other States (see paras 195, 230).
Under Article 51 of the UN Charter and under CIL self-defence is only available against a use of
force that amounts to an armed attack (para 211).
NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal
Consequences of of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter
called the Palestine wall case) the ICJ upheld the definition of armed attack proposed in the
Nicaragua case. In the Palestinian wall case, the attacks from which Israel was claiming self
defence originated from non-State actors. However, the Court held that Article 51s inherent
right of self defence was available to one State only against another State (para 139). Judges
Higgins, Buergenthal and Kooijmans opposed this narrow view. Articles on State Responsibility,
prepared by the International Law Commission, provided significant guidance as to when acts of
non-State actors may be attributed to States. These articles, together with recent State practice
relating attacks on terrorists operating from other countries (see legal opinions surrounding the
United States attack on Afghanistan), may have widened the scope of an armed attack, and
consequently, the right of self defence, envisaged by the ICJ.
2. The Court held that the United States could not justify its military and paramilitary
activities on the basis of collective self-defence.
Customary international law allows for exceptions to the prohibition on the use of force
including the right to individual or collective self-defence (for a difference between the two
forms of self defence, click here). The United States, at an earlier stage of the proceedings, had
asserted that the Charter itself acknowledges the existence of this customary international law

right when it talks of the inherent right of a State under Article 51 of the Charter (para.193).
When a State claims that it used force in collective self-defence, the Court would look into two
aspects:
(1) whether the circumstances required for the exercise of self-defence existed and
(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the
requirements of international law (i.e. did it comply with the principles of necessity and
proportionality).
Several criteria must be met for a State to exercise the right of individual or collective selfdefence:
(1) A State must have been the victim of an armed attack;
(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether
an armed attack took place nor not is done by the state who was subjected to the attack. A
third State cannot exercise a right of collective self-defence based its (the third States) own
assessment]; and
(3) In the case of collective self-defence the victim State must request for assistance (there is
no rule permitting the exercise of collective self-defence in the absence of a request by the
State which regards itself as the victim of an armed attack).
(4) The State does not, under customary international law, have the same obligation as under
Article 51 of the UN Charter to report to the Security Council that an armed attack happened
but the absence of a report may be one of the factors indicating whether the State in question
was itself convinced that it was acting in self-defence (see below).
At this point, the Court may consider whether in customary international law there is any
requirement corresponding to that found in the treaty law of the United Nations Charter, by
which the State claiming to use the right of individual or collective self-defence must report to
an international body, empowered to determine the conformity with international law of the
measures which the State is seeking to justify on that basis. Thus Article 51 of the United
Nations Charter requires that measures taken by States in exercise of this right of self-defence
must be immediately reported to the Security Council. As the Court has observed above
(paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary
international law, may well be so unencumbered with the conditions and modalities surrounding
it in the treaty. Whatever influence the Charter may have had on customary international law in
these matters, it is clear that in customary international law it is not a condition of the
lawfulness of the use of force in self-defence that a procedure so closely dependent on the
content of a treaty commitment and of the institutions established by it, should have been
followed. On the other hand, if self-defence is advanced as a justification for measures which
would otherwise be in breach both of the principle of customary international law and of that
contained in the Charter, it is to be expected that the conditions of the Charter should
be respected. Thus for the purpose of enquiry into the customary law position, the absence of a
report may be one of the factors indicating whether the State in question was itself convinced
that it was acting in self-defence (See paras 200, 232 -236).
The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and
Honduras in determining whether an armed attack was undertaken by Nicaragua against the
three countries which in turn would necessitate self-defence (paras 230 236). The Court
referred to statements made by El Salvador, Costa Rica, Honduras and the United States before
the Security Council. None of the countries who were allegedly subject to an armed attack by
Nicaragua (1) declared themselves as a victim of an armed attack or request assistance from
the United States in self-defence at the time when the United States was allegedly acting in
collective self-defence; and (2) the United States did not claim that it was acting under Article
51 of the UN Charter and it did not report that it was so acting to the Security Council. The Court
concluded that the United States cannot justify its use of force as collective self-defence.
The criteria with regard to necessity and proportionality, that is necessary when using force in
self-defence was also not fulfilled (para 237).
3. The Court held that the United States breached its CIL obligation not to
intervene in the affairs of another State when it trained, armed, equipped and
financed the contra forces or encouraged, supported and aided the military and
paramilitary activities against Nicaragua.
The principle of non- intervention means that every State has a right to conduct its affairs
without outside interference i.e it forbids States or groups of States to intervene directly or
indirectly in internal or external affairs of other States. . This is a corollary of the principle of
sovereign equality of States.
A prohibited intervention must accordingly be one bearing on matters in which each State is

permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a
political, economic, social and cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of coercion in regard to such choices, which must
remain free ones. The element of coercion, which defines, and indeed forms the very essence
of, prohibited intervention, is particularly obvious in the case of an intervention which uses
force, either in the direct form of military action, or in the indirect form of support for subversive
or terrorist armed activities within another State (para 205).
Nicaragua stated that the activities of the United States were aimed to overthrow the
government of Nicaragua and to substantially damage the economy and weaken the political
system to coerce the Government of Nicaragua to accept various political demands of the
United States. The Court held:
first, that the United States intended, by its support of the contras, to coerce the
Government of Nicaragua in respect of matters in which each State is permitted, by the
principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly that
the intention of the contras themselves was to overthrow the present Government of
Nicaragua The Court considers that in international law, 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 the government of that State, that amounts to an intervention by the one State in
the internal affairs of the other, whether or not the political objective of the State giving such
support and assistance is equally far reaching.
The financial support, training, supply of weapons, intelligence and logistic support given by the
United States to the contras was a breach of the principle of non-interference. no such
general right of intervention, in support of an opposition within another State, exists in
contemporary international law, even if such a request for assistance is made by an opposition
group of that State (see para 246 for more).
However, in a controversial finding, the Court held that the United States did not devise the
strategy, direct the tactics of the contras or exercise control on them in manner so as to make
their acts committed in violation of international law imputable to the United States (see in this
respect Determining US responsibility for contra operations under international law 81 AMJIL
86).T he Court concluded that a number of military and paramilitary operations of the contras
were decided and planned, if not actually by 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, particularly the supply aircraft provided to the contras by the
United States but not all contra operations reflected strategy and tactics wholly devised by the
United States.
In sum, the evidence available to the Court indicates that the various forms of assistance
provided to the contras by the United States have been crucial to the pursuit of their activities,
but is insufficient to demonstrate their complete dependence on United States aid. On the other
hand, it indicates that in the initial years of United States assistance the contra force was so
dependent. However, whether the United States Government at any stage devised the strategy
and directed the tactics of the contras depends on the extent to which the United States made
use of the potential for control inherent in that dependence. The Court already indicated that it
has insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that
the contra force may be equated for legal purposes with the forces of the United StatesThe
Court has taken the view (paragraph 110 above) that United States participation, even if
preponderant or decisive, in the financing, organizing, training, supplying and equipping of the
contras, the selection of its military or paramilitary targets, and the planning of the whole of its
operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court,
for the purpose of attributing to the United States the acts committed by the contras in the
course of their military or paramilitary operations in Nicaragua. All the forms of United States
participation mentioned above, and even the general control by the respondent State over a
force with a high degree of dependency on it, would not in themselves mean, without further
evidence, that the United States directed or enforced the perpetration of the acts contrary to
human rights and humanitarian law alleged by the applicant State. Such acts could well be
committed by members of the contras without the control of the United States. For this conduct
to give rise to legal responsibility of the United States, it would in principle have to be proved
that that State had effective control of the military or paramilitary.
Interesting, however, the Court also held that providing humanitarian aid to persons or forces
in another country, whatever their political AFFILIATIONS or objectives, cannot be regarded
as unlawful intervention, or as in any other way contrary to international law (para 242).
In the event one State intervenes in the affairs of another State, the victim State has a right to

intervene in a manner that is short of an armed attack (210).

While an armed attack would give rise to an entitlement to collective self-defence, a use of
force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1
above). produce any entitlement to take collective countermeasures involving the use of force.
The acts of which Nicaragua is accused, even assuming them to have been established and
imputable to that State, could only have justified proportionate counter-measures on the part of
the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica.
They 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. The United States breached its customary international law obligation not to
violate the sovereignty of another State when it directed or authorized its aircrafts
to fly over Nicaraguan territory and when it laid mines in the internal waters of
Nicaragua and its territorial sea.
The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of
the territorial sea or internal waters of Nicaragua by persons in the pay or acting ion the
instructions of the United States and acting under its supervision with its logistical support.
The United States did not issue any warning on the location or existence of mines and this
resulted in injuries and increases in maritime insurance rates.
The court found that the United States also carried out high-altitude reconnaissance flights over
Nicaraguan territory and certain low-altitude flights, complained of as causing sonic booms.
The basic concept of State sovereignty in customary international law is found in Article 2(1) of
the UN Charter. State sovereignty extends to a States internal waters, its territorial sea and the
air space above its territory. The United States violated customary international law when it laid
mines in the territorial sea and internal waters of Nicaragua and when it carried out
unauthorised overflights over Nicaraguan airspace by aircrafts that belong to or was under the
control of the United States.

CASE CONCERNING EAST TIMOR

(PORTUGAL v. AUSTRALIA)
Judgment of 30 June 1995
In its Judgment on the case concerning East Timor (Portugal v. Australia), the Court, by 14 votes to 2, found that it c
Parties under Article 36, paragraph 2, of its Statute to adjudicate upon the dispute referred to it by the Application o
Those who voted in favour were: President Bedjaoui: Vice President Schwebel; Judges Oda, Sir Robert Jennings, Guil
Vereshchetin; Judge ad hoc Sir Ninian Stephen.
Against: Judge Weeramantry; Judge ad hoc Skubiszewski.
Judges Oda, Shahabuddeen, Ranjeva, and Vereshchetin appended separate opinions to the Judgment of the Court.
Judge Weeramantry and Judge ad hoc Skubiszewski appended dissenting opinions to the Judgment of the Court.
__________
Summary of the Judgment
Procedural history (paras. 1-10)
In its Judgment the Court recalls that on 22 February 1991 Portugal instituted proceedings against Australia concern
Application Australia had, by its conduct, "failed to observe -- the obligation to respect the duties and powers of [Po
Timor to self-determination and the related rights". In consequence, according to the Application, Australia had "inc
As the basis for the jurisdiction of the Court, the Application refers to the declarations by which the two States have
Statute. In its Counter-Memorial, Australia raised questions concerning the jurisdiction of the Court and the admissib
Parties agreed that these questions were inextricably linked to the merits and that they should therefore be heard a
completed in July 1993, hearings were held between 30 January and 16 February 1995. The Judgment then sets out
proceedings.
Historical background (paras. 11-18)
The Court then gives a short description of the history of the involvement of Portugal and Indonesia in the Territory
concerning the question of East Timor. It further describes the negotiations between Australia and Indonesia leading
between the Indonesian Province of East Timor and Northern Australia".
Summary of the contentions of the Parties (paras. 19-20)
The Court then summarizes the contentions of both Parties.
Australia's objection that there exists in reality no dispute between the Parties (paras. 21-22)
The Court goes on to consider Australia's objection that there is in reality no dispute between itself and Portugal. Au
question of the lawfulness of Australia's conduct, and that the true respondent is Indonesia, not Australia. Australia
Portugal and Australia have accepted the compulsory jurisdiction of the Court under Article 36, paragraph 2, of its S
The Court finds in this respect that for the purpose of verifying the existence of a legal dispute in the present case,

than Portugal and Australia. Portugal has, rightly or wrongly, formulated complaints of fact and law against Australia
Australia's objection that the Court is required to determine the rights and obligations of Indonesia (paras. 23-35)
The Court then considers Australia's principal objection, to the effect that Portugal's Application would require the C
jurisdiction conferred upon the Court by the Parties' declarations under Article 36, paragraph 2, of the Statute would
lawfulness of Indonesia's entry into and continuing presence in East Timor, on the validity of the 1989 Treaty betwee
Treaty, even if the Court did not have to determine its validity. In support of its argument, it refers to the Court's Jud
agrees that if its Application required the Court to decide any of these questions, the Court could not entertain it. Th
questions in order to resolve the dispute referred to it.
Portugal contends first that its Application is concerned exclusively with the objective conduct of Australia, which co
Indonesia, and that this question is perfectly separable from any question relating to the lawfulness of the conduct o
Having carefully considered the argument advanced by Portugal which seeks to separate Australia's behaviour from
assessed without first entering into the question why it is that Indonesia could not lawfully have concluded the 1989
Court's decision would necessarily be a determination whether, having regard to the circumstances in which Indone
enter into treaties on behalf of East Timor relating to the resources of its continental shelf. The Court could not make
The Court rejects Portugal's additional argument that the rights which Australia allegedly breached were rights erga
regardless of whether or not another State had conducted itself in a similarly unlawful manner.
In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charte
principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudenc
However, the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are tw
rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of th
The Court goes on to consider another argument of Portugal which, the Court observes, rests on the premise that th
as imposing an obligation on States not to recognize any authority on the part of Indonesia over East Timor and, wh
resolutions would constitute "givens" on the content of which the Court would not have to decide de novo.
The Court takes note of the fact that, for the two Parties, the Territory of East Timor remains a non-self governing te
to Portugal as the "administering Power" in a number of the above-mentioned resolutions is not at issue between th
of resolutions of the General Assembly and the Security Council refer to Portugal as the administering Power of East
with Portugal as regards the continental shelf of East Timor. Without prejudice to the question whether the resolutio
cannot be regarded as "givens" which constitute a sufficient basis for determining the dispute between the Parties.
It follows from this that the Court would necessarily have to rule upon the lawfulness of Indonesia's conduct as a pre
respect Portugal's status as administering Power, East Timor's status as a non-self governing territory and the right
wealth and natural resources. Indonesia's rights and obligations would thus constitute the very subject matter of su
directly counter to the "well-established principle of international law embodied in the Court's Statute, namely, that
Removed from Rome in 1943, I.C.J. Reports 1954, p. 32).
Conclusions (paras. 36-37)
The Court accordingly finds that it is not required to consider Australia's other objections and that it cannot rule on P
those claims and of the rules of international law which they bring into play.
The Court recalls in any event that it has taken note in the Judgment that, for the two Parties, the Territory of East T
determination.
THE EL SALVADOR V. HONDURAS CASE

I. FACTS (A BRIEF OVERVIEW)

1 Material
1 Before 1821, Central America was a colony of Spain under Spanish
administration
2 1821 - independence was achieved by the Federal Republic of Central
America
3 1839 - the Federal Republic of Central America broke up, with Honduras
and El Salvador becoming independent states
4 land, island and maritime dispute between Honduras and El Salvador
erupts in 1969 Soccer war
5 a series of unsuccessful or partially successful dispute resolution efforts
1 1972 agreement - 13 unresolved disputes
2 1980 Peace Treaty - 6 unresolved disputes
3 the JTC effort fails
6 thereafter, El Salvador and Honduras reached a "Special Agreement" for
the ICJ to resolve the remaining 6 disputed areas/boundaries
7
2 Legal - the ICJ agreed to hear the case in a 5-judge ICJ Chamber
3

II. ISSUES
1

Specific
1 How are the 6 territorial disputes to be resolved?
2 How is the uti possidetis principle to be applied here in the absence of
persuasive documentary evidence?
3
General
1 What is the nature of the uti possidetis principle?
2 How is the uti possidetis principle to be applied in the absence of
persuasive documentary evidence?

III. HOLDING
1 The ICJ applied the uti possidetis principle to the 6 disputes
IV. SALIENT PRINCIPLES
1 "The principle of uti possidetis is concerned as much with title to territory as with
the location of boundaries" (that is, the principle can be applied to general
territorial questions, not simply those of boundaries per se)
2
3 "certainly a key aspect of the principle is the denial of the possibility of terra
nullius" (that is, once a colony becomes an independent state, the new state's
territory cannot be acquired by another state through occupation of "no-man's
land")
4
5 "uti possidetis is essentially a retrospective principle, INVESTING as
international boundaries administrative limits intended originally for quite
different purposes" (implicit here: the approach to territorial disputes draws upon
old demarcations, divisions NOT intended to serve as future state boundaries)
6
7 Lacking "persuasive documentary evidence of the location of the boundary at
the time the states gained their independence" the Court:
8
1 attached weigh to a geographical feature
2
3 invoked "equity infra legem" (the IL "general principle" of "fairness") -the Court adopted a boundary originally proposed in 1869
4
5 considered the conduct of the parties in the period following
independence (how the new states acted then suggested how they then
viewed the territorial situation)
6
1 "possession backed by the exercise of sovereignty may be taken as
evidence confirming uti possidetis juris title"
2 practically the only way in which the uti possidetis juris could find
formal expression so as to be judicially recognized and determined"
3