THE HAGUE – The International Court of Justice (ICJ) holds public hearings in the case Nicaragua v. Germany

Oh. Please be seated. The sitting is open. The Court meets today to hear the second round of oral arguments of Germany on its preliminary objections in the case concerning alleged breaches of certain international obligations in respect of the occupied Palestinian territory, Nicaragua v. Germany. For reasons duly made known to me, Judge Mandali will no longer participate in these proceedings. I shall now give the floor to Professor Antonios Denakopoulos. You have the floor, sir.

Mr. President, Members of the Court, good afternoon. It has been Germany's consistent position that no dispute existed between itself and Nicaragua at the critical time of the filing of the application, that is, 1 March 2024. We heard little of substance to challenge that position yesterday. But there was some obfuscation as well as some distortion of the position of Germany, both of which it is necessary to address. I will do this in three steps. First, I will take the Court through a timeline of events, from the first step of Nicaragua towards what eventually became the case before you on 1 February 2024, to the filing of the application on 1 March. Second, I will respond on the Court's jurisprudence on the existence of a dispute, to flesh out the relevant requirements and to demonstrate how they apply in this case. Third, and finally, I will take a little time to present to you what happened during the press conference of 7 February 2024. Let me start with the timeline, which you can also see on your screens now. On 1 February 2024, the Nicaraguan government issues the press release which is to our understanding circulated to all states on the same date at 1918 Eastern Standard Time that means in the early hours of 2 February 2024 Central European time a not verbal is sent to the general info address of the permanent mission of Germany to the United Nations this is as yet undiscovered Nicaragua is fully aware that this is the case as the cover email conveying the not verbal and an attachment includes a request for confirmation of receipt of both the email and its attachment. So we are now on 2 February 2024 in Europe and this is when the email chain that you have in tab 8 of your judge's folder begins. I will not go over that again. The four states that are named in the press release begin looking for the note verbale, which the press release has foreshadowed, and start early coordination attempts. They are operating in the dark, as they do not have the note verbale. Council for Nicaragua argued yesterday that whether Germany was considering the contents of the press release or the note verbale is irrelevant. as the contents of the two were, quote, "virtually," unquote, identical. But even if this were correct, Germany had no way of knowing it before actually seeing the note verbale, which it did not see until 13 February. While the four states are looking for the note verbale, A regular government press conference takes place on 7 February 2024. I will deal with what happened in the press conference in some detail later. On 13 February, Germany finds the Notrabal, and on 14 February confirms its receipt as requested by Nicaragua. As an aside, let me just note that this does not qualify as a diplomatic exchange, as opposing counsel tried to imply yesterday. And the citation to The Gambia v. Myanmar provided in the compte rendu as authority does not actually support any such implication either, as the relevant paragraph cited referred to actual exchanges between the parties at the United Nations, not to a simple sending of a notarial. More importantly, however, it is only at this point that Germany is in a position to compare the contents of the press release and the not verbal, which are not identical, as I demonstrated on Monday. And Nicaragua knows that it is only on this date, 13 February, that Germany found the not verbal and confirmed receipt. It knows this also because it had just resent the email with a not verbal on 13 February 2024. Now, in the background, cooperation and discussion continues between the four states on this basis, the not verbal. On 29 February, The United Kingdom proposes 7 March for the next coordination meeting of the four. Germany accepts this proposal on 1 March, which, however, is the date on which Nicaragua files its application with the Court. So this is it. This is the whole timeline within which Nicaragua argues a dispute was established between itself and Germany. one month from first generic indication via press release broadcast to the world at large, and just over two weeks from the actual receipt of the note verbale. Mr. President, Members of the Court, I wish now to take this timeline and use it to compare it to the Court's careful jurisprudence, a jurisprudence that opposing counsel sought to brush to the side yesterday, arguing that it is all about substance, not form. The Court has consistently stated that the determination of the existence of a dispute is a matter of substance and not a question of form or procedure. But this does not somehow suggest that the criteria for the existence of a dispute do not matter, much less does it suggest that the formal step of sending a note verbale and then waiting is enough to establish a dispute simply because the violations alleged in that note verbale are grave. Quite the contrary. The Court has always carefully reviewed the facts against the distinct set of criteria in order to establish the existence of a dispute. This is what gives flesh to the Court's preference for substance over form. And it is this substance that we will review now. The evidence that the Court relies on for determining positive opposition, and thus the existence of a dispute, are most helpfully, if only partially, summarized in the Garbiya v. Myanmar. The Court takes into consideration any statements or documents exchanged between the parties, exchanges in multilateral settings, as well as the author of the statement or document, their intended or actual addressee, and their content. The Court also carefully considers the length and number of exchanges between the parties. as well as the specificity of the claims made, as this is evident in a number of cases. I will now discuss these aspects. First, the length of exchanges between the parties leading up to the filing of an application with the Court. In allegations of genocide, Ukraine versus Russia, the Court considered exchanges going back eight years to 2014. In Belgium versus Senegal, four years of exchanges were considered. In Georgia versus Russia, it was just over eight years. In the Gambia versus Myanmar, more than one year. And in the Marshall Islands cases, where the court found that the dispute had not crystallized, it was more than six months. In our case, we have only one month, the shortest month in the year, no less. And that is taking the starting point to be the 1st of February, which it really is not, as will have become clear from the timeline. The starting point is 13 February. Second, the number of exchanges between the parties. In allegations of genocide, Ukraine versus Russia, numerous exchanges were considered. In Belgium versus Senegal, there were numerous not verbal exchanged. In Georgia versus Russia, again, numerous exchanges. In the Gambia versus Myanmar, there were four statements and one not verbal. And in the Marshall Islands cases, there were two statements in the UN General Assembly. but no dispute was found to exist. In the current case, there is not a single exchange of any substance. There is the sending of a note verbale and the confirmation of its receipt, nothing more. Neither the issuance of a press release, nor the short back and forth between a journalist and the Federal Foreign Office spokesperson constitutes an exchange. Third, the specificity of the claims. In allegations of genocide, Ukraine versus Russia, the claims were very specific and they related to the alleged protection of people in the Donbas region from genocide allegedly perpetrated by Ukraine. In Belgium versus Senegal, the claims that survived scrutiny as to the existence of a dispute were wholly specific. They referred to a named individual in relation to specific provisions under the Convention against Torture. In Georgia v. Russia, the Court took great care to identify whether there was truly a claim specifying that it related to racial discrimination. In The Gambia v. Myanmar, the claims specifically related to allegations of genocide in the fact-finding mission reports. and were later also put forward by Notverbal. And in the Marshall Islands cases, no dispute was found to exist precisely because of a failure to specify the conduct of the respondents that gave rise to the alleged breach. In the current case, vague references to international law at large are meant to signify specific claims as to violations of everything, from the right to self-determination to the obligation not to recognize as lawful a situation created by a serious breach of a peremptory norm of international law, to the obligation to prosecute persons accused of grave crimes under international law. I note, as an aside, that in most of the cases above, the claims were no less grave or urgent than they are in the current case. The allegations were of torture, they were of genocide, of racial discrimination. And yet, the Court did not consider that gravity and urgency would be sufficient reasons to forego the application of the criteria for the determination of the existence of a dispute. Finally, on the author of the claims and their actual intended addressee, I can be brief. In all the cases already discussed, the numerous specific exchanges over a period of months or years came either from organs of the state, including the highest organs, or from representatives to international organizations and embassies, and they were addressed to the other state. When the addressee was unspecified or generic, the existence of a dispute was not established. In none of these cases, however, was the author a government spokesperson reserving the state's position, and the addressee a journalist asking questions at a press conference. Mr. President, members of the court, It is clear that the two parties have different ways of perceiving what happened at the regular government press conference of 7 February. You have the full transcript in tab 7 of your judges' folder. But for context, this is a regular press conference that is hosted by a German association of press correspondents and attended by the speaker of the German government, and the spokespersons of every single federal ministry. It takes place three times a week, and journalists may ask questions that span every conceivable issue within the competence of the federal government. As you can see, the regular press conference does take a long time. In this instance, more than one hour and 20 minutes. This particular press conference covered everything from EU fleet emission standards for trucks to the proposal of a levy on meat products to enhance animal welfare. The exchange at issue today lasted two minutes and 45 seconds out of a grand total of 80 or more minutes. The journalist's questions, together with the intervention from the chairperson, took up two minutes and 15 seconds. Ms. Deshawar, the spokesperson, gave two answers, which is one answer simply repeated, and which lasted 15 seconds each. These 15 seconds is what Nicaragua is basing its entire argument for positive opposition on. It is asking you to find the needed positive opposition to a claim in a few words to a journalist, and in a way that would mark a radical departure from what the Court has consistently required in terms of the formulation of a claim and the required opposition to that claim. Nicaragua has filed an application with the Court. Nicaragua is bringing this case before you. It is thus Nicaragua that needs to show how its claims are positively opposed. To demand from Germany to show that they are not would be absurd. And yet, this is essentially what Nicaragua did yesterday. But it went even further. Nicaragua invited you to infer positive opposition from its own internal assumption that, in any case, Germany would probably not change its course of action. This is not what positive opposition means, and it is a type of speculation in which the Court has not engaged. Mr. President, Members of the Court, it is evident that Nicaragua has not established that a dispute existed at the critical time of the filing of the application. This is why it has tried to obfuscate the requirements consistently applied by the Court. And this is why it also relies on subsequent conduct, which is of no avail to its case. There was no dispute between the parties on 1 March 2024. Mr. President, Members of the Court, Thank you for your kind attention. May I now ask, Mr. President, that you give the floor to Professor Christian Tams, who will continue Germany's presentation in the second round.

I thank Professor Yannakopoulos for his statement. I now invite Professor Christian Tams to take the floor. You have the floor, sir.

Mr. President, members of the Court, it is an honor to address you and to continue Germany's second-round presentation. I will be making three points. First, pursuing Professor Tsanakopoulos' argument just presented, I will offer a brief observation on the significance of the requirement of a dispute. Second, I will respond to Nicaragua's arguments about the temporal scope of the Court's jurisdiction under the Optional Clause. And third, I will briefly speak to Nicaragua's racial discrimination claim. Mr. President, Members of the Court, you have just heard Professor Zanakopolous set out Germany's position on why, in the present instance, there was no dispute between Nicaragua and Germany at the time when Nicaragua filed its application on the 1st of March, 2024. Underlying his approach and underlying Germany's position in this case is the firm conviction that the requirement of a dispute is important and deserves careful scrutiny. It is not, and I would emphasize the point given Nicaragua's approach yesterday, a formality. It is, in the words of the court, the primary condition for the exercise of the court's judicial function. While Professor Zanakopoulos has focused on the criteria guiding the court's assessment, there is a broader point to draw out. And this is the care and the diligence with which this court has approached the question of whether there existed a dispute at the material time. In the case between Georgia and Russia, this care led the Court to, as has been noted, "undertake a detailed review of the relevant diplomatic exchanges, documents and statements", end of quote, and to find eventually that a dispute about racial discrimination had only crystallised between the parties on 9th, between 9th and 12th August 2008, after the outbreak of the Russo-Georgian war. That finding was very important, as it limited drastically the period in which it could be said that there had been negotiations required by Article 22. In Belgium v. Senegal, the Court carefully assessed the applicant's claims and rejected those that had not been articulated with sufficient clarity. Finally, in Marshall Islands, the Court, after careful scrutiny again, found that the applicant had failed to demonstrate that, on the facts, a dispute existed between it and the respondent state at the time of filing. Stepping back from the details, these cases, and others could be added, illustrate the importance of the requirement of a dispute, which is, as has been observed, fundamentally a condition for the very existence of the Court's jurisdiction. Now, whether this fundamental condition is met needs to be assessed in each and every case. But the assessment, we submit, is particularly important in this case, because This case is particular in a number of respects, and I mention five of them. First, the documentary record on which Nicaragua bases its case is exceptionally slim, and the time between the first articulation of any claim and the filing of the application was short. Professor Tsanakopoulos has spoken to this. Second, Germany had no particular reason to anticipate a claim from Nicaragua. Neither state was or is a party to the underlying conflict, and Nicaragua had not engaged or opposed Germany in meetings before UN bodies. Third, while proceedings were eventually instituted against Germany in the short period of time preceding the filing of the application, Nicaragua was apparently considering proceedings against no less than four states. All of these four states received not verbale with a similar content. Which of these four would be sued seems to have been decided only a few days before the filing of the case, and on the basis, it seems, of reasons of convenience. My fourth point. Since the filing of the application on 1st of March 2024, Nicaragua's claims pursued in the present proceedings have been anything but static. As Germany has noted in its written preliminary objections, in the memorial, Nicaragua introduced both new substantive claims and a new jurisdictional basis. As I will discuss shortly, in the course of the present oral proceedings, Nicaragua seems to contemplate a restriction of its claims. And finally, my fifth point. Notwithstanding this potential restriction, with Nicaragua's submissions running to 10 interrelated claims and three further requests for remedies, advanced on the basis of three separate jurisdictional bases, This was, and this is, a case of enormous scope, as to which Germany, naturally, needed some reasonable time to formulate and voice a response. Mr. President, Members of the Court, the requirements of a dispute and the Court's case law assessing it are very well known. They would have been very well known to Nicaragua. For whatever reason, Nicaragua elected not to take those rules seriously and presented as a mere formality what, according to the rules of the Court, is a crucial step in assessing, and I quote again, "the very existence of the Court's jurisdiction." The President of Germany considers it of the highest importance that the Court in assessing Nicaragua's claims, follow the careful approach of its settled jurisprudence and, on that basis, dismiss Nicaragua's claims in their entirety. Mr. President, Members of the Court, with this, I move on to my second point, and that is Nicaragua's argument on temporal jurisdiction. On Monday, Germany put to you that Nicaragua's submissions 4 to 9 have their real cause not in facts and situations after 30th of April 2008, but in Germany's long-term policy vis-a-vis Israel. I took you to passages from Nicaragua's memorial, which said exactly that, and which specified how Nicaragua advanced facts from well before the critical date to assert that Germany had breached international law, from Volkswagen's shareholding in MAN to submarines contracted in the 1990s and 2000s, to the alleged decade-long aid and assistance to Israel. Yesterday, Nicaragua was emphatic that its dispute was only about facts and situations after 30th of April 2008. But in reality, its pleading affirmed Germany's position. It affirmed Germany's position because Nicaragua, of course, must accept that its memorial explicitly accuses Germany of what Council yesterday referred to as past violations, that is, violations from before the critical date. Mr. President, significantly, it is now also clear that Nicaragua considers these past violations to be of the same character as alleged later breaches. Counsel yesterday described the past breaches, and I quote, as "similar" and asserted that the Court could assess later breaches even where, and I quote again, "similar facts and situations existed in the past and might have given rise to responsibility on the basis of comparable or identical legal argument." End of quote. But, Mr. President, members of the Court, we have to ask, why are the legal arguments identical? The response is clear. Because all of Nicaragua's assertions advanced under claims 4 to 9 rely on facts of the same nature. The real cause does not lie after the critical date. Mr. President, Members of the Court, in Germany's submission, this clarification is fatal to Nicaragua's argument on the real cause of the dispute, fatal because it is simply not plausible for Nicaragua to argue that its dispute with Germany has its real cause in facts and situations after 30th of April 2008, when at the same time, it has in its memorial made this a case about Germany's long-term policy and when it recognises, as it now has, that alleged breaches from before or after the critical date fall to be assessed on the basis of similar or identical legal argument. Mr. President, Members of the Court, permit me to highlight what we perceive as the weakness of Nicaragua's case, by inviting you to reflect on a hypothetical, one closely modeled on a case with which this court is very familiar and which both parties have relied on in the first round, and this is the certain property case. Now, in the real certain property case, Liechtenstein challenged German court decisions of the 1990s. These had been rendered after the critical date, which in the real certain property case was in 1980, in February 1980. As I discussed on Monday, Liechtenstein's challenge prompted the Court to clarify that these later Court decisions had their real cause in early effects and situations, and so the case could not be pursued. Now, Mr. President, Members of the Court, assume this: assume Liechtenstein had not merely challenged German court decisions of the 1990s from after the critical date, but that in its memorial it had pointed to earlier court decisions as well, rendered, say, in the 1960s or 1970s, before the critical date, and assume further that in its memorial, Liechtenstein had expressly portrayed the earlier and the later decisions as part of a long-term German jurisprudence. And this Liechtenstein, in my hypothetical case, would have further said what counsel for Nicaragua told you yesterday, that decisions from before and after the critical date raised comparable or identical legal arguments. Mr. President, this is a hypothetical, but it is one that we submit shares essential features of the dispute Nicaragua intends to bring before this Court. So let me put the question to you. and perhaps also to counsel for Nicaragua. In my hypothetical certain property case, would it have been plausible for Liechtenstein to assert that its dispute with Germany, the one it sought to bring before the Court, presented as a dispute about the long-standing jurisprudence with Court decisions from before and after the critical date that this dispute fell within the Court's temporal jurisdiction which began in 1980? On what basis could Liechtenstein, in this hypothetical certain property case, have claimed that the real cause of its dispute lay after 18th of February 1980, the relevant critical date? We submit that this Court, had it been confronted with the hypothetical certain property case that I presented to you, would have had little difficulty in finding that the claims of Liechtenstein fell outside the Court's temporal jurisdiction. And we say the same should apply to Nicaragua's claims 4 to 9 in our case. Mr. President, Nicaragua yesterday offered two comments to avoid this result. It first warned that Germany's understanding would transform the temporal limitation clause into, I quote, "a limitation without limits whatsoever." But this is mere assertion. Germany's temporal limitation falls to be interpreted in line with the longstanding jurisprudence of this court and its predecessor. Germany submitted its reservation with its optional clause in 2008. 70 years after the Permanent Court's judgment in the Phosphate Case and roughly three years after this Court's judgment in the Certain Property Case, that is, the real Certain Property Case, in which this Court had insisted on the importance of assessing whether later facts marked a departure from prior conduct or raised particular issues for the first time. On Monday, Germany asked you to apply precisely these tests to Nicaragua's claims. The temporal limitation is not a limitation without limits. Its meaning is shaped by the jurisprudence of this Court. But, Mr. President, Nicaragua yesterday went one step further. It urged you simply to ignore its earlier arguments regarding past breaches. Counsel asserted that Nicaragua, and I quote, "submits or perhaps we should say, now submits to the Court's scrutiny and jurisdiction the export authorizations for military equipment issued after 30th of April 2008, as well as the numerous events occurring after that date that Nicaragua has details in its written submissions," end of quote. Now, this is clearly not the case Nicaragua pleaded in its memorial, in which it expressly accused Germany of manifold past breaches. which it now wants to drop in order to somehow fit its claims 4 to 9 into the scope of the Court's temporal jurisdiction. But, Mr. President, Members of the Court, contrary to what Nicaragua may feel, a dispute submitted to the principal judicial organ of the United Nations is not an accordion that can be stretched and squeezed at will to suit the claimant's changing procedural objectives. To put it differently, and perhaps less musically, the preliminary objections stage is not one in which claimants can change their pleadings on the merits. The proceedings on the merits in this case, as you, Mr. President, reminded the parties in opening these hearings on Monday, were suspended on the 22nd October 2025 by an order of the court by virtue of article 79 bis paragraph 3 of the rules of court. To permit Nicaragua now to again change the scope of its claims would not only undermine the idea of the preliminary objections phase in which the proceedings on the merits are frozen, it would also affect the procedural fairness between the parties. And for that reason, Nicaragua's last minute effort to curtail its claims for reasons of procedural convenience must fail. Mr. President, Members of the Court, I move on more briefly to points made by Nicaragua in relation to its racial discrimination claim, a claim, as Professor Zaracopoulos reiterated earlier, was never even mentioned in the nota verbal or press release, but that now has become an important aspect of Nicaragua's case. I will address two aspects in particular. the construction of Article 22 and the scope of Germany's special agreement reservation. First, Article 22. Our case on Monday was that Nicaragua had manifestly failed to fulfil the preconditions for the Court's season. Yesterday, counsel for Nicaragua asserted, and I quote, that "Germany's insistence on an amicable settlement would have resulted in irreparable harm to the Palestinian people", end of quote. Council continued, and I quote again, that recourse to negotiations under CERD's interstate complaint mechanism entails lengthy procedures, end of quote. In response, Mr. President, permit me to clarify that it is not Germany's position that as a precondition to the season of the court under Article 22, an applicant must have pursued negotiations under CERD's interstate complaint mechanism. As the Court has clarified in referring to negotiations or the methods referred to in the Convention, Article 22, and I quote, "imposes alternative preconditions for the Court's jurisdiction," end of quote. However, the Court has also and repeatedly made clear, some negotiation must have been pursued. And negotiations must have been pursued after a dispute about questions of racial discrimination has crystallized in a distinct phase. Nicaragua yesterday seemed to suggest that this requirement could be dispensed with where the situation required urgent action. In response, the Court in Germany notes first of all that the Court at the provisional measures stage of this proceeding did consider questions of urgency. But what is more, the Court's case law affirms that negotiations must be pursued in settings in which applicants perceive the need to require urgent action. This is true for the cases between Ukraine and Russia, Armenia and Azerbaijan, but above all for the case of Georgia versus Russia, in which Georgia's claim failed because it had failed to seek a negotiated settlement at a time when it was party to an armed conflict waged on its territory. In light of this jurisprudence, Germany submits that it is simply not sufficient for Nicaragua to point to the situation on the ground in Gaza to assert that negotiations need not be pursued. Mr. President, Members of the Court, my second point. If Article 22 of the third is of no help to Nicaragua, can Nicaragua bring its racial discrimination claim on the basis of the optional clause? On Monday, I had taken you to Germany's optional clause declaration, which contains, as I was showing to you, a special agreement reservation. Yesterday, counsel for Nicaragua took issue with Germany's position. the Council had very little to say on the terms of the reservation. Nicaragua, in fact, had nothing to say on why CERD was not a special agreement providing for another form of dispute settlement in the terms of Germany's reservation, and why Nicaragua and Germany had not chosen it when joining the CERD regime. What we heard instead were warnings about endless loops if you gave effect to the special agreement reservation. An endless loop because, according to Nicaragua, Article 22 also accommodates a preference for special agreements, which, according to Nicaragua, means, and I quote, that parties to CERN would have been deemed to have agreed to another mode of settlement through the optional clause declarations, end of quote. Yet this misses the central point I made on Monday. Article 22 of the CERN does not speak of CERN parties. It speaks of disputants, or in French, les parties au differend. The renvoi in Article 22 of the CERN is only to other modes of settlement that have been agreed after a dispute has emerged, not to a general system that permits the unilateral submission of disputes. Or put more simply, there are no disputants about CERN in our case. Therefore, Article 22 does not refer back to the German or any other state's optional clause declaration. And as this is so, Germany encourages this Court to give effect to the terms of Germany's special agreement reservation. You can do so without fear of an endless loop. This, Mr. President, members of report brings to an end my second round presentation. I thank you for your kind attention, and I would ask you now, Mr. President, to call Mr. Samuel Wordsworth.

I thank Professor Thams for his statement. I now call Mr. Samuel Wordsworth to the podium. You have the floor, sir.

Mr. President, members of the court, I will be responding on monetary gold to the submissions made by Professor Pele, a self-confessed monetary gold skeptic. He made two principal submissions. First, that the requirements for application of the monetary gold principle are not met because, it was argued, Nicaragua is not asking the Court to decide whether Israel's responsibility is engaged by its activities in the Gaza Strip and the occupied Palestinian territory more generally. The second point, that in any event, and this is my translation, It has already been established that the responsibility of Israel is engaged by virtue of serious and persistent violations of numerous imperative norms of international law. This is an established fact, a given. Reliance in this respect was placed on a list of reports and materials at tab 13 of Nicaragua's judges folder, as well as on the Court's past three advisory opinions concerning Israel. And these two lines of argument, it might be thought, are pulling in two different and rather contradictory directions. So far as concerns application of the monetary gold principle, there are three points calling for response. First, Nicaragua notably avoided making any reference to the formulation of the principle in East Timor and other subsequent cases, i.e. that the relevant question is whether the Court would necessarily have to rule upon the lawfulness of the absent state's conduct as a prerequisite for deciding on the claimant state's contention that the respondent state violated its obligation. As Germany noted in opening, this is the question that comes out of the reasoning in Monetary Gold. as indeed the Court itself explained in the Nauru case as part of its key reasoning distinguishing Nauru's claim against Australia from the claim of Italy in the Monetary Gold case. It is because the determination of Albania's responsibility was a prerequisite for a decision to be taken on Italy's claim that the Court found that the interests of Albania formed the very subject matter of the decision. Nicaragua avoids the use of the Court's repeated formulation because it is aware that its case does require determinations of wrongful conduct by Israel, and hence it says that this wrongful conduct can somehow be taken as a given. Second, my friend, Professor Pelley, sought to draw a distinction between the submission made by Italy in the Monetary Gold case and the submissions now made by Nicaragua. And it was said that in the current case, it is only the responsibility of Germany that is in play. That distinction was made by reference to slide one of Nicaragua's tab 10. which, however, gave an incomplete portrayal of Nicaragua's submissions. The words omitted from Nicaragua's slide, and you can see these now in red, form a key part of Nicaragua's actual case, and they concern the alleged conduct of Israel, that is, an alleged ongoing genocide. in the Gaza Strip and the question of Israel's compliance with the Geneva Conventions. The point is equally, if not more clear, from Nicaragua's other submissions. For example, its submission three, alleging complicity in genocide through provision of, and I quote, "aid including military equipment, to Israel that has been used in the commission of genocide by Israel. That's its submission number three. Now, the substantive rules of law are, of course, different to those at issue in the Monetary Gold case. but the parallel submissions are materially similar in the two cases in that both require a determination of the conduct of an absent third state as a prerequisite to the court being able to make the declaration sought. And in any event, The fundamental rule on consent that monetary gold reflects could not be bypassed by artful pleading. And one notes that in the East Timor case, Portugal made no express mention of the absent state, Indonesia, in its formal submissions. But of course, the court looked at the substance of what it was being asked to decide. That leads to the third point. It was said yesterday that Israel's conduct was only in the background, that the Court was not called upon to make any legal judgment on the conduct of Israel. That might be thought to be difficult to square with Nicaragua's actual submissions. But in any event, the argument turned on the incorrect contention that it is enough for Nicaragua to show a risk of breach by Israel, with a particular focus then being placed by Nicaragua on certain of the Court's conclusions in the Bosnian genocide case. However, as Germany has always made clear, including on Monday, the Court in Bosnian genocide made a clear distinction between, one, the substantive conditions for triggering the obligation to prevent genocide; and, two, the substantive conditions required for breach of the obligation. Nicaragua does not assist the Court when, as yesterday, it focuses only on the first of these points. because its allegation is that Germany has breached its obligation of prevention, not that the obligation of prevention has been triggered. To return very briefly to our slide of Monday, you can see in red the point concerning when the obligation is triggered, which is the point that Nicaragua seeks to emphasise. You may recall my reading it out. The key point underlined concerns what is required for breach. It makes no difference that, as identified in the preceding paragraph of the court's judgment, the obligation to prevent is identified as an obligation of conduct, not result. with emphasis being placed by the Court on the duty of due diligence. Nicaragua alleges breach. The current question concerns what the Court would have to determine to find a breach, and the Court could not have been more clear. The answer is that there must have been commission of a genocide. In the current case, the only genocide alleged is that allegedly committed by Israel, the absent party. And hence, Israel's alleged wrongdoing is as squarely engaged as that of Albania in the monetary gold case. And as the Bosnian genocide case makes crystal clear, the characterization of an obligation of prevention as comprising a duty of diligence does not, as Nicaragua suggests, including with respect to its characterization of common article 1, does not dispose of the need for the third state's wrongful conduct to have actually occurred before there can be a breach of the obligation to prevent genocide or to ensure respect under common article 1. Reference was made to the drafting work behind article 14.3 of the ILC articles of state responsibility, to the effect that not all obligations of prevention are of the same kind. This is a point that the Court had fully on board and, in fact, referred to in the Bosnian genocide case when identifying what was required for a breach of Article 1 and for complicity in genocide. So this point could add nothing so far as concerns Nicaragua's three genocide claims. Reliance was then placed on the court's finding in the Tehran hostages case concerning Iran's failure to take appropriate steps. And from this, it was said that there was, I quote, "an autonomous obligation independent of the concretization of the violation of the obligation, which is the object of prevention, whether this concerns international humanitarian law, the prohibition of genocide, racial discrimination, or the right of the people of Palestine to self-determination. And that, with respect, represented a notably large and brave leap in legal reasoning. Three short points. First, The position so far as concerns what is required for a breach of the obligation to prevent genocide is as established by the court's consistent jurisprudence concerning the Genocide Convention. Second, the position so far as concerns other obligations of prevention may depend on issues of specific wording. and the court heard on Monday our submissions on common article 1 of the Geneva Conventions. Germany's reasoning, just as the court's reasoning in the Bosnian genocide case, does not turn on a blind adherence to article 14.3 of the ILC articles on state responsibility, but on an interpretation of the relevant wording of common article 1 and an appreciation of what must be required for there to be a breach. If state A has in fact complied with its obligations under the Geneva Conventions, how can state B have failed to ensure that compliance? Third, the Tehran hostages case concerned the obligation under the Vienna Convention on Diplomatic Relations to take all appropriate steps to protect the premises of the mission against any intrusion or damage. That is an obligation of a completely different nature to common article 1, not least because it is not concerned with ensuring compliance by another state of that other state's international legal obligations. And if the hostages case had been considered relevant to prevention or complicity in genocide, or indeed more broadly, no doubt the court would have referred to it in the Bosnian genocide case. But of course, it did not. Ultimately, Nicaragua has not sought to challenge Germany's point that Nicaragua's application and memorial are replete with assertions that Israel is in breach of multiple and fundamental norms of international law. Instead, Nicaragua seeks to turn this into a positive. It's more strongly answered answer, sorry, more strongly argued answer to monetary gold, which is the argument that Israel's breaches can be taken as a given. The juridical underpinning of this argument is the decision of the tribunal, and certainly a very distinguished tribunal, in Larsen and Hawaiian Kingdom. The dispute concerned alleged breach by Hawaii of its treaty of amity with the USA through the alleged unlawful imposition of US municipal law in Hawaii. Following its consideration of the monetary gold line of cases, with East Timor and Nauru being regarded as particularly pertinent, the Tribunal stated, "The Tribunal cannot rule on the lawfulness of the conduct of the Respondent in the present case if the decision would entail or require as a necessary foundation for the decision between the parties an evaluation of the lawfulness of the conduct of the United States of America or indeed the conduct of any other state which is not a party to the proceedings before the tribunal. You can see that is obviously borrowing the formulation from the East Timor case, picked up, of course, by this Court in Guyana and Venezuela and in many other cases. The Tribunal notes, for the sake of completeness, that there may well be exceptions to the monetary gold principle. For example, if the legal finding against an absent third party could be taken as given, For example, by reason of an authoritative decision of the Security Council on the point, the principle may well not apply. It is also possible that the principle does not apply where the finding involving an absent third party is merely a finding of fact, not entailing or requiring any legal assessment or qualification of that party's conduct or legal position. That is not our case, I note in passing, and Nicaragua has not suggested otherwise. The tribunal continued, "In the present case, however, the parties did not seek to rely on any possible exception, so of course the tribunal did not dig any deeper into this possibility." It was perhaps overstating matters to characterise this as the tribunal saying very clearly that monetary gold does not apply when the legal findings against a third party could be taken as a given. The statement is qualified, and the only example given of where the principle may well not apply is an authoritative decision of the Security Council on the point. And one notes the careful use of the words "authoritative decision". And stepping back, it must be asked whether reliance on anything other than an authoritative decision of the Security Council on the relevant point to establish a given could be consistent with fulfilment of the Court's judicial function. Certainly, the Human Rights Council and other materials at tab 13 of Nicaragua's judges folder could not, consistent with the Court's judicial function, be taken to establish as a given that Israel has engaged in a genocide or committed serious breaches of the Fourth Geneva Convention or the other alleged wrongful conduct of Israel that is alleged. the Court might accord weight to such materials as evidence of alleged conduct, but that is quite different from what is now being suggested. To quote the Court's words from the Bosnian genocide case, where it had been presented with abundant UN reports and other materials, the Court must itself make its own determinations of the facts which are relevant to the law which the applicant claims the respondent has breached. And one asks, how could it be otherwise? As the court also noted, it had the assistance of judgments on criminality, on relevant conduct from the ICTY, which were of highly persuasive value. But Nicaragua cannot point to anything remotely equivalent here. And one wonders also how carefully thought through this part of Nicaragua's case is. From the submissions of yesterday, it appeared that Nicaragua's case has now shrunk back to where it stood in the application and request for provisional measures of March 2024. That is, with the real focus being on alleged genocide and breach of international humanitarian law in the conduct of Israel in Gaza since 7 October 2023. How, consistent with its judicial function, could the Court take such serious matters as a given? Court decides contentious cases by reference to its specific determinations of fact and law. And yet, that is the approach that Nicaragua now asks you to abandon in express terms, which I note also appear inconsistent with the way the matter was argued in its written statement. Now you are just to rely on a fait acquis. to make one obvious point. So far as concerns Israel's defence of the claim brought by South Africa, it could readily be said that issues were being predetermined against Israel before it had had a fair hearing. This would appear to be the inevitable effect of what Nicaragua now seeks. In the Court's judgment on the current preliminary objections, which will no doubt be made in relatively short order and long before an assessment of the merits of the South Africa and Israel case, the Court would, on Nicaragua's argument, be saying that the monetary gold principle is not an obstacle to exercise of jurisdiction because it can be taken as a given that Israel has committed a genocide, has committed multiple serious breaches of IHL, has engaged in apartheid and other very serious unlawful conduct. Against that backdrop, how, one wonders, on Nicaragua's case, could Israel get and be seen to get a fair hearing? Professor Pelley placed some weight on the court's provisional measures orders in the South Africa case and considerable weight on the court's three advisory opinions concerning Israel. As to the former, there was a suggestion of not understanding why we say a finding of risk of plausibility of rights serve finding of risk or plausibility of rights served a different purpose in a different case the answer of course is that in its 2024 orders in the South Africa case the court was concerned only with the matters relevant to provisional measures in that case and not with the current claims which require the court to determine that Israel has committed a genocide has not complied with its obligations under the Fourth Geneva Convention, as well as other obligations incumbent on Israel which do not form part of the South Africa case. As to the three advisory opinions, the first and indisputable point is that none speak to the question of whether there has been a genocide or breach of international humanitarian law or breaches of CERD or other rules of international law through the conduct of Israel in Gaza since 7 October 2023. So as we said in opening, at very best, these could be only of very partial assistance. Professor Pele made three points. First, that the court itself and other international courts and tribunals habitually referred to or rely on the court's advisory opinions, while Germany itself has stated that it respects the 2024 opinion. Second, that the Court has made clear in the three advisory opinions that it had sufficient information before it to answer the relevant requests, and the Court's opinion on the main features of Israel's practices and policies were sufficient for Nicaragua's purposes in the current case. And third, that the authority of the three opinions had been universally recognised, including by Germany. As to the first argument, of course the Court refers back to its own jurisprudence where appropriate, including to advisory opinions. So, to take the first example footnoted by Professor Pelley, in the Ukraine and Russia case concerning financing of terrorism, The court was considering what was required for good faith negotiations, and in that context, it referred back to various cases, including one of the advisory opinions of the PCIJ. One asks, so what? The question is not whether the court or other international courts and tribunals rely on the court's advisory opinions. Of course they do. But rather, the question is, to what end? They are not and could not be relied on to bypass case-specific determinations of fact and law in a contentious case such as whether Israel has been engaged in a genocide in Gaza. The one case that Professor Pele focused on was the decision of the ITLOS Chamber in Mauritius and Maldives, which very notably, in considering and rejecting a monetary gold argument, considered the dispute involving the UK as to sovereignty over the Chagos Archipelago to have been resolved in Mauritius's favour by the Court in its 2019 advisory opinion. As I noted in opening, this is a controversial decision. And indeed, one distinguished commentator has characterised the Chamber's approach as quite simply absurd, emphasising that the Chamber should have been doing its own work. It is difficult to disagree. As to the other judgments referred to, these concerned respectively the status of Western Sahara and the way that human rights protections apply in armed conflict. None comes close to reliance on an advisory opinion to establish as a given that a third state is engaged in, for example, commission of an ongoing genocide and/or breaches of IHL. As to the second argument, it is very difficult indeed to see how the legal characterizations made in the three advisory opinions could be sufficient to show, as was claimed, that Israel's responsibility is recognized almost universally with respect to genocide and diverse violations of IHL and other fundamental rules of international law. And even if it were otherwise, and it is not, Nicaragua's position fails to take into account Germany's point as to the different processes that the Court follows in its advisory as opposed to its contentious jurisdiction, as indeed the Court itself has taken care to emphasize in the 2025 UNRWA advisory opinion. Finally, as to the generally recognized authority of the three opinions, Their evident authority and importance can change nothing as to what matters they actually cover and in what detail. Germany's recognition of the opinions likewise cannot bring about such a change. It is anyway irrelevant for the unchallenged reason that we put forward on Monday. The monetary gold principle is concerned with the consent of the absent third state, not the views of the parties that are before the court. Indeed, the monetary gold case is an apt illustration of that, given that Italy, no doubt, considered that it had a good claim against Albania for delivery of the gold at issue. Mr. President, members of the Court, that concludes my presentation. Germany regrets that, apparently due to Nicaragua's prior counsel overrunning yesterday, Professor Pelley was unable to complete his submissions, with the potentially prejudicial result that Germany is deprived of the opportunity to respond. I thank you very much for your attention and ask you to hand the floor to the Honourable Agent for Germany.

I thank Mr. Wadsworth for his statement. I now invite the Agent of Germany to take the floor. You have the floor, Madam.

Mr. President, Members of the Court, In my closing statement, allow me to make four short observations in response to points that have been raised by the representatives of Nicaragua yesterday. I will then continue to read the final submissions of the Federal Republic of Germany. Firstly, it is entirely inappropriate to frame the raising of preliminary objections, as the Nicaraguan agent did yesterday, as an attempt by Germany to avoid at all costs that its actions be judged by this Court. As countless states in previous proceedings have done, Germany has made use of this procedural right. The objections concern serious questions regarding the admissibility and jurisdiction with respect to this case. They are based on the law and the jurisprudence of this Court. They constitute the only subject matter of the current stage of proceedings. In its oral argument yesterday, Nicaragua, however, has once again used these preliminary proceedings to formulate substantive allegations. Germany would address these points in detail if we were in the merits phase, but we are not. Secondly, this is the first case in the history of this Court and its predecessor in which neither the applicant, Nicaragua, nor the respondent, Germany, is a party to the conflict at the heart of this case. Germany respectfully submits that in such cases, it is crucial to uphold the principle of consent the very foundation on which the jurisdiction of this Court rests. Yesterday, Nicaragua asked you to look beyond the legalese and to disregard what it described as procedural delay. What Germany asks for, however, is simply that the Court continue its sound administration of justice and that it applies the settled standards. This constant practice, developed over decades, has earned the Court the trust of the international community. This brings me to my third observation. Germany is committed both to the existence and security of the State of Israel, as well as to the full realization of the Palestinian people's right to self-determination. Nicaragua, however, try to portray us as one-sided. The opposite is true. Germany supports, not just with words, but with many deeds, the implementation of UN Security Council Resolution 2803 and the comprehensive plan to end the conflict in Gaza. The German government continuously urges all parties to adhere to their commitments under the plan, including the disarmament of Hamas as well as the facilitation of unimpeded access and sustained distribution of humanitarian assistance at scale into and throughout Gaza. The German government actively engages in all efforts to end the conflict and in supporting a negotiated two-state solution through diplomatic means available to it. Nicaragua attempted to frame the German Foreign Minister's many visits to Israel as Business as usual. To the contrary, the German government used these visits to convey critical messages and argue for a better humanitarian situation in Gaza. The foreign minister also visited the Palestinian territories, attended the UN High-Level International Conference for the Peaceful Settlement of the Question of Palestine and the Implementation of the Two-State Solution in September 2025, and met at several occasions with President Abbas, Prime Minister Mustafa, and Foreign Minister Shaheen. Let me also clarify that our substantive financial support to the Palestinians is not an abstract number to boast about, as the Nicaraguan agent put it. That was an astonishing and regrettable characterization. The right of the Palestinian people to self-determination is of great importance to Germany, and the funding from Germany enables practical steps towards its realization. It makes a real and immediate difference on the ground. We support, for example, the Stabilization Response Mechanism with UNDP, which played a key role in facilitating the local elections in April 2026, particularly in Deir Abala in Gaza. In the West Bank, we support the Palestinian Civil Defense, the Palestinian Police, digitalization of public services, and the Palestinian economy through job creation activities. Through the World Health Organization, the Palestinian Red Crescent, and the ICRC, we directly and indirectly support health systems run by the Palestinian Authority. Fourthly, Nicaragua wants to make the Court believe that Germany ignores the Court's order of 30th of April 2024. Let me assure you again that Germany fully respects the Court's order of 30th of April 2004. Nicaragua's agent assumes that the Court's order for Germany equals an absolute obligation not to supply weapons to Israel under any circumstances. In fact, however, The Court reminded Germany of its, and I quote, "international obligations relating to the transfer of arms to parties to an armed conflict in order to avoid the risk that such arms might be used to violate conventions" end of quote, "of international law." This is precisely the standard that the German government applies when authorizing export licenses for specific goods under specific circumstances. Mr. President, Members of the Court, Germany's counsel have explained why every claim of Nicaragua faces one or more preliminary objections. At the time of the filing of the application, there was no dispute between Nicaragua and Germany regarding any of the claims. The majority of Nicaragua's claims are excluded from the Court's jurisdiction under Germany's optional clause declaration of 2008 and Article 22, respectively. And entertaining Nicaragua's claims would require the Court to adjudicate upon the lawfulness of Israel's conduct in the absence of its consent or participation. Mr. President, Members of the Court, in accordance with Article 60, paragraph 2 of the Rules of the Court, I now turn to the reading of the final submissions of the Federal Republic of Germany. For the reasons set out in its preliminary objections and presented by its counsel during these oral hearings, Germany respectfully requests the Court not to entertain any of Nicaragua's 13 claims as set out in para. 484 of its Memorial. In particular, Germany respectfully asks the Court to adjudge and declare that: As to submissions 1 to 3, the Court lacks jurisdiction for the reasons set out in Germany's first preliminary objection. In the alternative, the claims are inadmissible for the reasons set out in Germany's third preliminary objection. As to submissions 4 to 9, the Court lacks jurisdiction for the reasons set out in Germany's first and second preliminary objections. In the alternative, the claims are inadmissible for the reasons set out in Germany's third preliminary the Court lacks jurisdiction for the reasons set out in Germany's first preliminary objection.

Mr. President, Members of the Court, I thank you for your kind attention. I should also like to thank the Registrar and the members of the Registry, the interpreters and the Court reporters. I should also like to thank the members of the Nicaraguan delegation for the quality of our exchange of views over the course of our hearings. Mr. President, members of the Court, this brings the presentation of the Federal Republic of Germany to a close. I thank you.

Thank the agent of Germany, whose statement brings to an end today's sitting. The Court takes note of the final submissions which you have just read on behalf of your government. The Court will reconvene tomorrow, Thursday, 10 September 2026, at 4:30 p.m. to hear Nicaragua's second round of oral argument. At the end of that sitting, Nicaragua will present its Final submissions. The sitting is closed.