disputes arising under a multilater

disputes arising under a multilateral treaty, unless (1) al1parties to
the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to
jurisdiction". This reservation will be referred to for convenience as the "multilateral
treaty reservation". Of the two remaining provisos to the declaration, it has
not been suggested that proviso (a), referring to disputes the solution of
which is entrusted to other tribunals, has any relevance to the present case.
As for proviso (b), excluding jurisdiction over "disputes with regard to
matters which are essentially within the domesticjurisdiction of the United
States of America as determined by the United States of America", the
United States has informed the Court that it has determined not to invoke
this proviso, but "without prejudice to the rights of the United States under
that proviso in relation to any subsequent pleadings, proceedings, or cases
before this Court".
68. The United States points out that Nicaragua relies in its Application
on four multilateral treaties, namely the Charter of the United Nations, the
Charter of the Organization of American States, the Montevideo Conven
tion on Rights and Duties of States of 26 December 1933,and the Havana
Convention on the Rights and Duties of States in the Event of Civil Strife
of 20 February 1928. In so far as the dispute brought before the Court is
thus one "arising under" those multilateral treaties, since the United States
has not specially agreed to jurisdiction here, the Court may, it is claimed,
exercise jurisdiction only if al1 treaty parties affected by a prospective
decision of the Court are also parties to the case. The United States
explains the rationale of its multilateral treaty reservation as being that it
protects the United States and third States from the inherently prejudicial
effects of partial adjudication of complex multiparty disputes. Emphasiz
ing that the reservation speaks only of States "affected by" a decision, and
not of States having a legal right or interest in the proceedings, the United
States identifies, as States parties to the four multilateral treaties above
mentioned which would be "affected", in a legal and practical sense, by
adjudication of the claims submitted to the Court, Nicaragua's three
Central American neighbours, Honduras, Costa Rica and El Salvador.
69. The United States recognizes that the multilateral treaty reservation
applies in terms only to "disputes arising under a multilateral treaty", and
notes that Nicaragua in its Application asserts also that the United States
has "violated fundamental rules of general and customary international
law". However, it is nonetheless the submission of the United States that the Court, or (2) the United States of America specially agrees to
jurisdiction al1 the claims set forth in Nicaragua's Application are outside the juris
diction of the Court. According to the argument of the United States,
Nicaragua's claims styled as violations of general and customary interna
tional law merely restate or paraphrase its claims and allegations based
expressly on the multilateral treaties mentioned above, and Nicaragua in
its Memorial itself States that its "fundamental contention" is that the
conduct of the United States is a violation of the United Nations Charter
and the Charter of the Organization of American States. The evidence of
customary law offered by Nicaragua consists of General Assembly reso
lutions that merely reiterate or elucidate the United Nations Charter ;nor
can the Court determine the merits of Nicaragua's claims formulated
under customary and general international law without interpreting and
applying the United Nations Charter and the Organization of American
States Charter, and since the multilateral treaty reservation bars adjudi
cation of claims based on those treaties, it bars al1 Nicaragua's claims.
70. Nicaragua on the other hand contends that if the multilateral treaty
reservation is given its correct interpretation, taking into account in particular the travaux préparatoires leading to the insertion by the United
States Senate of the reservation into the draft text of the 1946 Declaration,
the reservation cannot preclude jurisdiction over any part of Nicaragua's
Application. According to Nicaragua, the record demonstrates that the
reservation is pure surplusage and does not impose any limitation on
acceptance of compulsory jurisdiction by the United States. The amendment whereby the reservation was introduced was conceived, intended and
enacted to deal with a specific situation : a multiparty suit against the
United States that included parties that had not accepted the Court's
compulsory jurisdiction. Nicaragua contends, not that the reservation is a
nullity, but that when its meaning is properly understood, it turns out to be
redundant. The United States interpretation of the reservation finds no
support, according to Nicaragua, in its legislative history, and would
establish a thoroughly unworkable standard inasmuch as it would be
necessary to ascertain in what circumstances a State not party to a case
should be deemed "affected" by the decision which is yet to be taken by the
Court. Nicaragua argues that the supposed interests of those States that the
United States alleges might be affected by a decision in this case are either
non-existent or plainly beyond the scope of any such decision, and that the
communications sent by those States to the Court fail to establish that they
would be so affected.
71. Furthermore, Nicaragua denies that its claims based on customary
law are no more than paraphrases of its allegations of violation of the
United Nations Charter, and emphasizes that the same facts may justify
invocation of distinct causes of action. Specifically, the provisions of the
United Nations Charter relating to the use of force by States, while they
may still rank as provisions of a treaty for certain purposes, are now within
the realm of general international law and their application is not a
question exclusively of interpreting a multilateral treaty. The law relating
to the use of force is not contained wholly in the Charter, and in the
practice of States claims of State responsibility involving violence may be
and frequently are formulated without relying on the Charter. Accordingly, Nicaragua submits that the multilateral treaty reservation, even if it
has any relevance or validity, has no application to the claims of Nicaragua
based upon customary international law.
72. The multilateral treaty reservation in the United States Declaration
has some obscure aspects, which have been the subject of comment sinceits
making in 1946.There are two interpretations of the need for the presence
of the parties to the multilateral treaties concerned in the proceedings
before the Court as a condition for the validity of the acceptance of the
compulsory jurisdiction by the United States. It is not clear whether what
are "affected", according to the terms of the proviso, are the treaties
themselves or the parties to them. Similar reservations to be found in
certain other declarations of acceptance, such as those of India, El Salvador and the Philippines, refer clearly to "al1 parties" to the treaties. The
phrase "al1 parties to the treaty affected by the decision" is at the centre of
the present doubts. The United States interprets the reservation in the
present case as referring to the States parties affected by the decision of the
Court, merely mentioning the alternative interpretation, whereby it is the
treaty which is "affected", so that al1parties to the treaty would have to be
before the Court, as "an afortiori case". This latter interpretation need not
therefore be considered. The argument of the United States relates specifically to El Salvador, Honduras and Costa Rica, the neighbour States of
Nicaragua, which allegedly would be affected by the decision of the
Court.
73. It may first be noted that the multilateral treaty reservation could
not bar adjudication by the Court of al1 Nicaragua's claims, because
Nicaragua, in its Application, does not confine those claims only to violations of the four multilateral conventions referred to above (paragraph
68). On the contrary, Nicaragua invokes a number of principles of customary and general international law that, according to the Application,
have been violated by the United States. The Court cannot dismiss the
claims of Nicaragua under principles of customary and general international law, simply because such principles have been enshrined in the texts
of the conventions relied upon by Nicaragua. The fact that the abovementioned principles, recognized as such, have been codified or embodied
in multilateral conventions does not mean that they cease to exist and to
apply as principles of customary law, even as regards countries that are
parties to such conventions. Principles such as those of the non-use of
force, non-intervention, respect for the independence and territorial integrity of States, and the freedom of navigation, continue to be binding as part
of customary international law, despite the operation of provisions of
conventional law in which they have been incorporated. Therefore, since
the claim before the Court in this case is not confined to violation of the
multilateral conventional provisions invoked, it would not in any event be
barred by the multilateral treaty reservation in the United States 1946
Declaration.
74. The Court would observe, further, that al1 three States have made
declarations of acceptance of the compulsoryjurisdiction of the Court, and
are free, at any time, to come before the Court, on the basis of Article 36,
paragraph 2, with an application instituting proceedings against Nicara
gua - a State which is also bound by the compulsory jurisdiction of the
Court by an unconditional declaration without limit of duration -, if they
should find that they m

Kết quả (Việt) 1:

disputes arising under a multilateral treaty, unless (1) al1parties tothe treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees tojurisdiction". This reservation will be referred to for convenience as the "multilateraltreaty reservation". Of the two remaining provisos to the declaration, it hasnot been suggested that proviso (a), referring to disputes the solution ofwhich is entrusted to other tribunals, has any relevance to the present case.As for proviso (b), excluding jurisdiction over "disputes with regard tomatters which are essentially within the domesticjurisdiction of the UnitedStates of America as determined by the United States of America", theUnited States has informed the Court that it has determined not to invokethis proviso, but "without prejudice to the rights of the United States underthat proviso in relation to any subsequent pleadings, proceedings, or casesbefore this Court".68. The United States points out that Nicaragua relies in its Applicationon four multilateral treaties, namely the Charter of the United Nations, theCharter of the Organization of American States, the Montevideo Convention on Rights and Duties of States of 26 December 1933,and the HavanaConvention on the Rights and Duties of States in the Event of Civil Strifeof 20 February 1928. In so far as the dispute brought before the Court isdo đó một "phát sinh dưới" những hiệp ước đa phương, kể từ khi Hoa Kỳđã không đặc biệt đồng ý để thẩm quyền ở đây, tòa án có thể, đó là yêu cầu,tập thể dục thẩm quyền chỉ nếu al1 Hiệp ước bên ảnh hưởng bởi một tiềm năngquyết định của tòa án là bên đến vụ án. Hoa Kỳgiải thích lý do của nó tại Hiệp ước đa phương là rằng nóbảo vệ Hoa Kỳ và thứ ba kỳ từ vốn đã gây phương hạiảnh hưởng của một phần hoạt động xét xử các tranh chấp phức tạp đa đảng. Emphasizing phòng nói chỉ của kỳ "ảnh hưởng bởi" một quyết định, vàkhông phải là có một quyền pháp lý hoặc quan tâm đến các thủ tục tố tụng, Hoa KỳKỳ xác định, như bên kỳ bốn hiệp ước đa phương trênđề cập đến mà sẽ được "ảnh hưởng", trong một ý nghĩa pháp lý và thiết thực, bởixét xử của các khiếu nại nộp cho tòa án, Nicaragua của baTrung Mỹ hàng xóm, Honduras, Costa Rica và El Salvador.69. Hoa Kỳ nhận ra rằng tại Hiệp ước đa phươngáp dụng trong điều kiện chỉ cho "tranh chấp phát sinh theo Hiệp ước đa phương", vàghi chú rằng Nicaragua trong ứng dụng của nó khẳng định cũng mà Hoa Kỳđã "vi phạm các quy tắc cơ bản của quốc tế nói chung và phong tụcpháp luật". Tuy nhiên, đó là dù sao trình Hoa Kỳ nói rằng tòa án, hoặc (2) Hoa Kỳ đặc biệt đồng ýthẩm quyền al1 tuyên bố đưa ra trong ứng dụng của Nicaragua là bên ngoài các jurisdiction of the Court. According to the argument of the United States,Nicaragua's claims styled as violations of general and customary international law merely restate or paraphrase its claims and allegations basedexpressly on the multilateral treaties mentioned above, and Nicaragua inits Memorial itself States that its "fundamental contention" is that theconduct of the United States is a violation of the United Nations Charterand the Charter of the Organization of American States. The evidence ofcustomary law offered by Nicaragua consists of General Assembly resolutions that merely reiterate or elucidate the United Nations Charter ;norcan the Court determine the merits of Nicaragua's claims formulatedunder customary and general international law without interpreting andapplying the United Nations Charter and the Organization of AmericanStates Charter, and since the multilateral treaty reservation bars adjudication of claims based on those treaties, it bars al1 Nicaragua's claims.70. Nicaragua on the other hand contends that if the multilateral treatyreservation is given its correct interpretation, taking into account in particular the travaux préparatoires leading to the insertion by the UnitedStates Senate of the reservation into the draft text of the 1946 Declaration,the reservation cannot preclude jurisdiction over any part of Nicaragua'sApplication. According to Nicaragua, the record demonstrates that thereservation is pure surplusage and does not impose any limitation onacceptance of compulsory jurisdiction by the United States. The amendment whereby the reservation was introduced was conceived, intended andenacted to deal with a specific situation : a multiparty suit against theUnited States that included parties that had not accepted the Court'scompulsory jurisdiction. Nicaragua contends, not that the reservation is anullity, but that when its meaning is properly understood, it turns out to beredundant. The United States interpretation of the reservation finds nosupport, according to Nicaragua, in its legislative history, and wouldestablish a thoroughly unworkable standard inasmuch as it would benecessary to ascertain in what circumstances a State not party to a caseshould be deemed "affected" by the decision which is yet to be taken by theCourt. Nicaragua argues that the supposed interests of those States that theUnited States alleges might be affected by a decision in this case are eithernon-existent or plainly beyond the scope of any such decision, and that thecommunications sent by those States to the Court fail to establish that theywould be so affected.71. Furthermore, Nicaragua denies that its claims based on customarylaw are no more than paraphrases of its allegations of violation of theUnited Nations Charter, and emphasizes that the same facts may justifyinvocation of distinct causes of action. Specifically, the provisions of theUnited Nations Charter relating to the use of force by States, while theymay still rank as provisions of a treaty for certain purposes, are now withinthe realm of general international law and their application is not aquestion exclusively of interpreting a multilateral treaty. The law relatingto the use of force is not contained wholly in the Charter, and in thepractice of States claims of State responsibility involving violence may beand frequently are formulated without relying on the Charter. Accordingly, Nicaragua submits that the multilateral treaty reservation, even if ithas any relevance or validity, has no application to the claims of Nicaraguabased upon customary international law.72. The multilateral treaty reservation in the United States Declarationhas some obscure aspects, which have been the subject of comment sinceitsmaking in 1946.There are two interpretations of the need for the presenceof the parties to the multilateral treaties concerned in the proceedingsbefore the Court as a condition for the validity of the acceptance of thecompulsory jurisdiction by the United States. It is not clear whether whatare "affected", according to the terms of the proviso, are the treatiesthemselves or the parties to them. Similar reservations to be found incertain other declarations of acceptance, such as those of India, El Salvador and the Philippines, refer clearly to "al1 parties" to the treaties. Thephrase "al1 parties to the treaty affected by the decision" is at the centre of
the present doubts. The United States interprets the reservation in the
present case as referring to the States parties affected by the decision of the
Court, merely mentioning the alternative interpretation, whereby it is the
treaty which is "affected", so that al1parties to the treaty would have to be
before the Court, as "an afortiori case". This latter interpretation need not
therefore be considered. The argument of the United States relates specifically to El Salvador, Honduras and Costa Rica, the neighbour States of
Nicaragua, which allegedly would be affected by the decision of the
Court.
73. It may first be noted that the multilateral treaty reservation could
not bar adjudication by the Court of al1 Nicaragua's claims, because
Nicaragua, in its Application, does not confine those claims only to violations of the four multilateral conventions referred to above (paragraph
68). On the contrary, Nicaragua invokes a number of principles of customary and general international law that, according to the Application,
have been violated by the United States. The Court cannot dismiss the
claims of Nicaragua under principles of customary and general international law, simply because such principles have been enshrined in the texts
of the conventions relied upon by Nicaragua. The fact that the abovementioned principles, recognized as such, have been codified or embodied
in multilateral conventions does not mean that they cease to exist and to
apply as principles of customary law, even as regards countries that are
parties to such conventions. Principles such as those of the non-use of
force, non-intervention, respect for the independence and territorial integrity of States, and the freedom of navigation, continue to be binding as part
of customary international law, despite the operation of provisions of
conventional law in which they have been incorporated. Therefore, since
the claim before the Court in this case is not confined to violation of the
multilateral conventional provisions invoked, it would not in any event be
barred by the multilateral treaty reservation in the United States 1946
Declaration.
74. The Court would observe, further, that al1 three States have made
declarations of acceptance of the compulsoryjurisdiction of the Court, and
are free, at any time, to come before the Court, on the basis of Article 36,
paragraph 2, with an application instituting proceedings against Nicara
gua - a State which is also bound by the compulsory jurisdiction of the
Court by an unconditional declaration without limit of duration -, if they
should find that they m