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Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Nicaragua (3 of 5)
Box: 34
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
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WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name ROBERTS, JOHN: FILES
Withdrawer
CAS 7/29/2005
File Folder JER/ NICARAGUA (3)
FOIA
2005-139
Box Number
12661 34
COOKE
1000
ID Doc Type
Document Description
No of Doc Date Restrictions
Pages
19453 MEMO
NICHOLAS PLATT TO ROBERT
3
ND
B1
MCFARLANE RE ECONOMIC
Drain
SANCTIONS AGAINST NICARAGUA
(DRAFT)
08/03/2005
R
6/22/2006
DOCUMENT PENDING REVIEW IN ACCORDANCE WITH E.O. 13233
SK
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of gift.
The ARMED FORCES
INAUGUIRAL COMMITTEE
CARL HYE-KNUDSEN JR.
SPECIAL PLANS
LIEUTENANT COLONEL
TELEPHONE
USAF
(202) 433-7894
INTERNATIONAL COURT OF JUSTICE
Peace Palace, 2517 KJ The Hague. Tel. 92 44 41. Cables: Intercourt, The Hague
Telex 32323
Communiqué
unofficial
for immediate release
No. 84/39
26 November 1984
Military and Paramilitary Activities in and against
Nicaragua (Nicaragua V. United States of America)
Judgment of the Court
The following information is communicated to the press by the Registry
of the International Court of Justice:
In the Judgment delivered today 26 November 1984, the International
Court of Justice finds, by fifteen votes to one, that it has jurisdiction
to entertain the case and unanimously that the Application filed by
Nicaragua against the United States of America is admissible.
*
The complete text of the operative part of the Judgment, with the
voting figures, is as follows:
"THE COURT,
(1) (a) finds, by eleven votes to five, that it has jurisdiction
to entertain the Application filed by the Republic of Nicaragua on
9 April 1984, on the basis of Article 36, paragraphs 2 and 5, of the
Statute of the Court;
IN FAVOUR : President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Ruda,
El-Khani, de Lacharrière, Mbaye, Bedjaoui;
Judge ad hoc Colliard;
AGAINST : Judges Mosler, Oda, Ago, Schwebel and Sir Robert Jennings;
(b) finds, by fourteen votes to two, that it has jurisdiction
to entertain the Application filed by the Republic of Nicaragua on
9 April 1984, insofar as that Application relates to a dispute concerning
the interpretation or application of the Treaty of Friendship, Commerce
and Navigation between the United States of America and the Republic
of Nicaragua signed at Managua on 21 January 1956, on the basis of
Article XXIV of that Treaty;
IN
2
IN FAVOUR : President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Mosler, Oda,
and DIE Robert Jennings, ue Lacharriere,
Mbaye, Bedjaoui; Judge ad hoc Colliard;
AGAINST : Judges Ruda and Schwebel;
(c) finds, by fifteen votes to one, that it has jurisdiction
to entertain the case;
IN FAVOUR : President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Ruda, Mosler,
Oda, Ago, El-Khani, Sir Robert Jennings, de Lacharrière,
Mbaye, Bedjaoui; Judge ad hoc Colliard;
AGAINST : Judge Schwebel;
(2) finds, unanimously, that the said Application is admissible."
*
The Court was composed as follows: President Elias;
Vice-President Sette-Camara; Judges Lachs, Morozov, Nagendra Singh, Ruda,
Mosler, Oda, Ago, El-Khani, Schwebel, Sir Robert Jennings, de Lacharrière,
Mbaye, Bedjaoui; Judge ad hoc Colliard.
*
Judges Nagendra Singh, Ruda, Mosler, Oda, Ago and Sir Robert Jennings
appended separate opinions to the Judgment.
Judge Schwebel appended a dissenting opinion to the Judgment.
In these opinions the Judges concerned state and explain the positions
they adopted in regard to certain points dealt with in the Judgment. A
brief summary of these opinions may be found in the annex hereto.
*
The printed text of the Judgment and of the opinions will be available
in a few weeks' time. (Orders and enquiries should be addressed to the
Distribution and Sales Section, Office of the United Nations, 1211 Geneva 10;
the Sales Section, United Nations, New York, N.Y. 19916; or any specialized
bookshop.)
An analysis of the Judgment is attached for the use of the Press. It
in no way involves the responsibility of the Court. It cannot be quoted
against the text of the Judgment, of which it does not constitute an
interpretation.
*
*
*
Analvsis
- 3 -
Analysis of the Judgment
Proceedings and Submissions or the rarties (paras. 1-11)
After recapitulating the various stages in the proceedings and
setting out the submissions of the Parties (paras. 1-10), the Court
recalls that the case concerns 8 dispute between the Government of the
Republic of Nicaragua and the Government of the United States of America
arising out of military and paramilitary activities in Nicaragua and in
the waters off its coasts, responsibility for which is attributed by
Nicaragua to the United States. In the present phase, the case concerns
the Court's jurisdiction to entertain and pronounce upon this dispute, as
well as the admissibility of Nicaragua's Application referring it to the
Court (para. 11).
I. The question of the jurisdiction of the Court to entertain
the dispute (paras. 12-83)
A. The declaration of Nicaragua and Article 36, paragraph 5, of the
Statute of the Court (paras. 12-51)
To found the jurisdiction of the Court, Nicaragua relied on Article
36 of the Statute of the Court and the declarations accepting the
compulsory jurisdiction of the Court made by the United States and itself.
The relevant texts and the historical background to Nicaragua's
declaration (paras. 12-16)
Article 36, paragraph 2, of the Statute of the International Court
of Justice provides that:
"The States parties to the present Statute may at any time
declare that they recognize as compulsory ipso facto and without
special agreement, in relation to any other State accepting the
same obligation, the jurisdiction of the Court in all legal
disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established,
would constitute a breach of an international
obligation;
(d) the nature or extent of the reparation to be made
for the breach of an international obligation."
On 14 August 1946, under this provision, the United States made a
declaration containing reservations which will be described further
below (page 8). In this declaration, it stated that:
"this
- 4 -
"this declaration shall remain in force for a period of five
years and thereafter until the expiration of six months after
notice may be given to terminate this declaration."
On 6 April 1984 the Government of the United States deposited with the
Secretary-General of the United Nations a notification signed by the
Secretary of State, Mr. George Shultz (hereinafter referred to as "the
1984 notification"), referring to the declaration of 1946, and stating
that:
"the aforesaid declaration shall not apply to disputes with any
Central American State or arising out of or related to events
in Central America, any of which disputes shall be settled in
such manner as the parties to them may agree.
Notwithstanding the terms of the aforesaid declaration,
this proviso shall take effect immediately and shall remain in
force for two years, so as to foster the continuing regional
dispute settlement process which seeks a negotiated solution to
the interrelated political, economic and security problems of
Central America.'
In order to be able to rely upon the United States declaration of
1946 to found jurisdiction in the present case, Nicaragua has to show
that it is a "State accepting the same obligation" as the United States
within the meaning of Article 36, paragraph 2, of the Statute.
For this purpose, it relies on a declaration made by it on
24 September 1929 pursuant to Article 36, paragraph 2, of the Statute of
the Permanent Court of International Justice, the predecessor of the
present Court, which provided that:
"The Members of the League of Nations and the States
mentioned in the Annex to the Covenant may, either when signing
or ratifying the Protocol to which the present Statute is
adjoined, or at a later moment, declare that they recognize as
compulsory ipso facto and without special agreement, in
relation to any other Member or State accepting the same
obligation, the jurisdiction of the Court
in any of the same categories of dispute as listed in Article 36,
paragraph 2, of the Statute of the present Court.
Nicaragua relies further on Article 36, paragraph 5, of the Statute
of the present Court, which provides that:
"Declarations made under Article 36 of the Statute of the
Permanent Court of International Justice and which are still in
force shall be deemed, as between the parties to the present
Statute, to be acceptances of the compulsory jurisdiction of
the International Court of Justice for the period which they
still have to run and in accordance with their terms."
The Judgment recalls the circumstances in which Nicaragua made its
declaration: on 14 September 1929, as a member of the League of Nations,
it signed the Protocol of Signature of the Statute of the Permanent
Court
- 5 -
Court of International Justice1: this Protocol provided that it was
subject to ratification and that instruments of ratification were to be
sent to the Secretary-General of the League of Nations. On 24 September
1929 Nicaragua deposited with the Secretarv-General of the Lesgue
declaration under Article 36, paragraph 2, of the Statute of the
Permanent Court which reads:
[Translation from the French]
"On behalf of the Republic of Nicaragua I recognize as
compulsory unconditionally the jurisdiction of the Permanent
Court of International Justice.
Geneva, 24 September 1929.
(Signed) T.F. MEDINA."
The national authorities in Nicaragua authorized its ratification,
and, on 29 November 1939, the Ministry of Foreign Affairs of Nicaragua
sent a telegram to the Secretary-General of the League of Nations
advising it of the despatch of the instrument of ratification. The files
of the League, however, contain no record of an instrument of
ratification ever having been received and no evidence has been adduced
to show that such an instrument of ratification was ever despatched to
Geneva. After the Second World War, Nicaragua became an original Member
of the United Nations, having ratified the Charter on 6 September 1945;
on 24 October 1945 the Statute of the International Court of Justice,
which is an integral part of the Charter, came into force.
The arguments of the Parties (paras. 17-23) and the reasoning of the
Court (paras. 24-42)
This being the case, the United States contends that Nicaragua never
became a party to the Statute of the Permanent Court and that its 1929
declaration was therefore not "still in force" within the meaning of the
English text of Article 36, paragraph 5, of the Statute of the present
Court.
In the light of the arguments of the United States and the opposing
arguments of Nicaragua, the Court sought to determine whether Article 36,
paragraph 5, could have applied to Nicaragua's declaration of 1929.
The Court notes that the Nicaraguan declaration was valid at the
time when the question of the applicability of the new Statute, that of
the International Court of Justice, arose, since under the system of the
Permanent Court of International Justice a declaration was valid only on
condition that it had been made by a State which had signed the Protocol
of Signature of the Statute. It had not become binding under that
Statute
...
¹While a State admitted to membership of the United Nations
automatically becomes a party to the Statute of the International Court
of Justice, a State member of the League of Nations only became a party
to that of the Permanent Court of International Justice if it 80 desired,
and, in that case, it was required to accede to the Protocol of Signature
of the Statute of the Court.
- 6 -
Statute, since Nicaragua had not deposited its instrument of ratification
of the Protocol of Signature and it was therefore not a party to the
Statute. However, it is not disputed that the 1929 declaration could
have acquired binding force. All that Nicaragu mood
deposit its instrument of ratification, and it could have done that at
any time until the day on which the new Court came into existence. It
follows that the declaration had a certain potential effect which could
be maintained for many years. Having been made "unconditionally" and
being valid for an unlimited period, it had retained its potential effect
at the moment when Nicaragua became a party to the Statute of the new
Court.
In order to reach a conclusion on the question whether the effect of
a declaration which did not have binding force at the time of the
Permanent Court could be transposed to the International Court of Justice
through the operation of Article 36, paragraph 5, of the Statute of that
body, the Court took several considerations into account.
As regards the French phrase "pour une durée qui n'est pas encore
expirée" applying to declarations made under the former system, the Court
does not consider it to imply that "la durée non expirée" (the unexpired
period) is that of a commitment of a binding character. The deliberate
choice of the expression seems to denote an intention to widen the scope
of Article 36, paragraph 5, so as to cover declarations which have not
acquired binding force. The English phrase "still in force" does not
expressly exclude a valid declaration of unexpired duration, made by a
State not party to the Protocol of Signature of the Statute of the
Permanent Court, and therefore not of binding character.
With regard to the considerations governing the transfer of the
powers of the former Court to the new one, the Court takes the view that
the primary concern of those who drafted its Statute was to maintain the
greatest possible continuity between it and the Permanent Court and that
their aim was to ensure that the replacement of one Court by another
should not result in a step backwards in relation to the progress
accomplished towards adopting a system of compulsory jurisdiction. The
logic of a general system of devolution from the old Court to the new
resulted in the ratification of the new Statute having exactly the same
effects as those of the ratification of the Protocol of Signature of the
old Statute, i.e., in the case of Nicaragua, a transformation of a
potential commitment into an effective one. Nicaragua may therefore be
deemed to have given its consent to the transfer of its declaration to
the International Court of Justice when it signed and ratified the
Charter, thus accepting the Statute and its Article 36, paragraph 5.
Concerning the publications of the Court referred to by the Parties
for opposite reasons, the Court notes that they have regularly placed
Nicaragua on the list of those States that have recognized the compulsory
jurisdiction of the Court by virtue of Article 36, paragraph 5, of the
Statute. The attestations furnished by these publications have been
entirely official and public, extremely numerous and have extended over a
period of nearly 40 years. The Court draws from this testimony the
conclusion that the conduct of States parties to the Statute has
confirmed the interpretation of Article 36, paragraph 5, of the Statute,
whereby the provisions of this Article cover the case of Nicaragua.
The
- 7 -
The conduct of the Parties (paras. 43-51)
Nicaragua also contends that the validity of Nicaragua's recognition
of the compulsory jurisdiction of the Court finds an
the conduct of the rarties. it argues that its conduct over 38 years
unequivocally constitutes consent to be bound by the compulsory
jurisdiction of the Court and that the conduct of the United States over
the same period unequivocally constitutes its recognition of the validity
of the declaration of Nicaragua of 1929 as an acceptance of the
compulsory jurisdiction of the Court. The United States, however,
objects that the contention of Nicaragua is inconsistent with the
Statute, and in particular that compulsory jurisdiction must be based on
the clearest manifestation of the State's intent to accept it. After
considering Nicaragua's particular circumstances and noting that
Nicaragua's situation has been wholly unique, the Court considers that,
having regard to the source and generality of statements to the effect
that Nicaragua was bound by its 1929 declaration, it is right to conclude
that the constant acquiescence of that State in those affirmations
constitute a valid mode of manifestation of its intent to recognize the
compulsory jurisdiction of the Court under Article 36, paragraph 2, of
the Statute. It further considers that the estoppel on which the
United States has relied and which would have barred Nicaragua from
instituting proceedings against it in the Court, cannot be said to apply
to it.
Finding: the Court therefore finds that the Nicaraguan declaration
of 1929 is valid and that Nicaragua accordingly was, for the purposes of
Article 36, paragraph 2, of the Statute of the Court, a "State accepting
the same obligation" as the United States at the date of filing of the
Application and could therefore rely on the United States declaration of
1946.
B. The declaration of the United States (paras. 52-76)
The notification of 1984 (paras. 52-66)
The acceptance of the jurisdiction of the Court by the United States
on which Nicaragua relies is the result of the United States declaration
of 14 August 1946. However, the United States argues that effect should
be given to the letter sent to the Secretary-General of the United
Nations on 6 April 1984 (see p. 4 above). It is clear that if this
notification were valid as against Nicaragua at the date of filing of the
Application, the Court would not have jurisdiction under Article 36 of
the Statute. After outlining the arguments of the Parties in this
connection, the Court points out that the most important question
relating to the effect of the 1984 notification is whether the United
States was free to disregard the six months' notice clause which, freely
and by its own choice, it has appended to its declaration, in spite of
the obligation it has entered into vis-à-vis other States which have made
such a declaration. The Court notes that the United States has argued
that the Nicaraguan declaration, being of undefined duration, is liable
to immediate termination, and that Nicaragua has not accepted "the same
obligation" as itself and may not rely on the time-limit proviso against
it. The Court does not consider that this argument entitles the
United States validly to derogate from the time-limit proviso included
in
- 8 -
in its 1946 declaration. In the Court's opinion, the notion of
reciprocity is concerned with the scope and substance of the commitments
entered into, including reservations, and not with the formal conditions
of their creation, duration or extinction. Reciprocity cannot be invoked
departure from the terms of a State's own declaration.
The United States cannot rely on reciprocity since the Nicaraguan
declaration contains no express restriction at all. On the contrary,
Nicaragua can invoke the six months' notice against it, not on the basis
of reciprocity, but because it is an undertaking which is an integral
part of the instrument that contains it. The 1984 notification cannot
therefore override the obligation of the United States to submit to the
jurisdiction of the Court vis-à-vis Nicaragua.
The United States multilateral treaty reservation (paras. 67-76)
The question remains to be resolved whether the United States
declaration of 1946 constitutes the necessary consent of the United
States to the jurisdiction of the Court in the present case, taking into
account the reservations which were attached to the declaration.
Specifically, the United States had invoked proviso (c) to that
declaration, which provides that the United States acceptance of the
Court's compulsory jurisdiction shall not extend to
"disputes arising under a multilateral treaty, unless (1) all
parties 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 as the "multilateral treaty
reservation".
The United States argues that Nicaragua relies in its Application on
four multilateral treaties, and that the Court, in view of the above
reservation, may exercise jurisdiction only if all treaty parties
affected by a prospective decision of the Court are also parties to the
case.
The Court notes that the States which, according to the United
States, might be affected by the future decision of the Court, have made
declarations of acceptance of the compulsory jurisdiction of the Court,
and are free, any time, to come before the Court with an application
instituting proceedings, or to resort to the incidental procedure of
intervention. These States are therefore not defenceless against any
consequences that may arise out of adjudication by the Court and they do
not need the protection of the multilateral treaty reservation (insofar
as they are not already protected by Article 59 of the Statute). The
Court considers that obviously the question of what States may be
affected is not a jurisdictional problem and that it has no choice but to
declare that the objection based on the multilateral treaty reservation
does not possess, in the circumstances of the case, an exclusively
preliminary character.
Finding: the Court finds that, despite the United States
notification of 1984, Nicaragua's Application is not excluded from the
scope of the acceptance by the United States of the compulsory
jurisdiction of the Court. The two declarations afford a basis for its
jurisdiction.
C. The
- 9 -
C. The Treaty of Friendship, Commerce and Navigation of 21 January 1956
as a basis of jurisdiction (paras. 77-83)
In its Memorial, Nicaragua also relies, as a "subsidiary basis" for
IN this case, on the Treaty of Friendship,
Commerce and Navigation which it concluded at Managua with the United
States on 21 January 1956 and which entered into force on 24 May 1958.
Article XXIV, paragraph 2, reads as follows:
"Any dispute between the Parties as to the interpretation
or application of the present Treaty, not satisfactorily
adjusted by diplomacy, shall be submitted to the International
Court of Justice, unless the Parties agree to settlement by
some other pacific means."
Nicaragua submits that this treaty has been and is being violated by
the military and paramilitary activities of the United States as
described in the Application. The United States contends that, since the
Application presents no claims of any violation of the treaty, there are
no claims properly before the Court for adjudication, and that, since no
attempt to adjust the dispute by diplomacy has been made, the
compromissory clause cannot operate. The Court finds it necessary to
satisfy itself as to jurisdiction under the treaty inasmuch as it has
found that the objection based upon the multilateral treaty reservation
in the United States declaration does not debar it from entertaining the
Application. In the view of the Court, the fact that a State has not
expressly referred, in negotiations with another States, to a particular
treaty as having been violated by the conduct of that other State, does
not debar that State from invoking a compromissory clause in that treaty.
Accordingly, the Court finds that it has jurisdiction under the 1956
Treaty to entertain the claims made by Nicaragua in its Application.
II. The question of the admissibility of Nicaragua's Application
(paras. 84-108)
The Court now turns to the question of the admissibility of
Nicaragua's Application. The United States contended that it is
inadmissible on five separate grounds, each of which, it is said, is
sufficient to establish such inadmissibility, whether considered as a
legal bar to adjudication or as "a matter requiring the exercise of
prudential discretion in the interest of the integrity of the judicial
function".
The first ground of inadmissibility (paras. 85-88) put forward by
the United States is that Nicaragua has failed to bring before the Court
parties whose presence and participation is necessary for the rights of
those parties to be protected and for the adjudication of the issues
raised in the Application. In this connection, the Court recalls that it
delivers judgments with binding force as between the Parties in
accordance with Article 59 of the Statute, and that States which consider
they may be affected by the decision are free to institute separate
proceedings or to employ the procedure of intervention. There is no
trace, either in the Statute or in the practice of international
tribunals, of an "indispensable parties" rule which would only be
conceivable in parallel to a power, which the Court does not possess, to
direct
- 10 -
direct that a third State be made a party to proceedings. None of the
States referred to can be regarded as being in a position such that its
presence would be truly indispensable to the
receedings.
The second ground of inadmissibility (paras. 89-90) relied on by the
United States is that Nicaragua is, in effect, requesting that the Court
in this case determines the existence of a threat to peace, a matter
falling essentially within the competence of the Security Council because
it is connected with Nicaragua's complaint involving the use of force.
The Court examines this ground of inadmissibility at the same time as the
third ground (paras. 91-98) based on the position of the Court within the
United Nations system, including the impact of proceedings before the
Court on the exercise of the inherent right of individual or collective
self-defence under Article 51 of the Charter. The Court is of the
opinion that the fact that a matter is before the Security Council should
not prevent it from being dealt with by the Court and that both
proceedings could be pursued pari passu. The Council has functions of a
political nature assigned to it, whereas the Court exercises purely
judicial functions. Both organs can therefore perform their separate but
complementary functions with respect to the same events. In the present
case, the complaint of Nicaragua is not about an ongoing war of armed
conflict between it and the United States, but about a situation
demanding the peaceful settlement of disputes, a matter which is covered
by Chapter VI of the Charter. Hence, it is properly brought before the
principal judicial organ of the United Nations for peaceful settlement.
This is not a case which can only be dealt with by the Security Council
in accordance with the provisions of Chapter VII of the Charter.
With reference to Article 51 of the Charter, the Court notes that
the fact that the inherent right of self-defence is referred to in the
Charter as a "right" is indicative of a legal dimension, and finds that
if, in the present proceedings, it became necessary for the Court to
judge in this respect between the Parties, it cannot be debarred from
doing so by the existence of a procedure requiring that the matter be
reported to the Security Council.
A fourth ground of inadmissibility (paras. 99-101) put forward by
the United States is the inability of the judicial function to deal with
situations involving ongoing armed conflict, since the resort to force
during an ongoing armed conflict lacks the attributes necessary for the
application of the judicial process, namely a pattern of legally relevant
facts discernible by the means available to the adjudicating tribunal.
The Court observes that any judgment on the merits is limited to
upholding such submissions of the Parties as has been supported by
sufficient proof of relevant facts and that ultimately it is the litigant
who bears the burden of proof.
The fifth ground of inadmissibility (paras. 102-108) put forward by
the United States is based on the non-exhaustion of the established
processes for the resolution of the conflicts occurring in Central
America. It contends that the Nicaraguan Application is incompatible
with the Contadora process to which Nicaragua is a party.
The ...
- 11 -
The Court recalls its earlier decisions that there is nothing to
compel it to decline to take cognizance of one aspect of a dispute merely
because that dispute has other aspects (United States Diplomatic and
1
pasa.
30),
will
the fact that negotiations are being actively pursued during the
proceedings is not, legally, any obstacle to the exercise by the Court of
its judicial function (Aegean Sea Continental Shelf case,
I.C.J. Reports 1978, P. 12, para. 29). The Court is unable to accept
either that there is any requirement of prior exhaustion of regional
negotiating processes as a precondition to seising the Court; or that
the existence of the Contadora process constitutes in this case an
obstacle to the examination by the Court of Nicaragua's Application.
The Court is therefore unable to declare the Application
inadmissible on any of the grounds the United States has advanced.
Findings (paras. 109-111)
Status of the provisional measures (para. 112)
The Court states that its Order of 10 May 1984 and the provisional
measures indicated therein remain operative until the delivery of the
final judgment in the case.
Operative provisions of the Court's Judgment
"THE COURT,
(1) (a) finds, by eleven votes to five, that it has
jurisdiction to entertain the Application filed by the Republic of
Nicaragua on 9 April 1984, on the basis of Article 36,
paragraphs 2 and 5, of the Statute of the Court;
IN FAVOUR: President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Ruda, E1-Khani,
de Lacharrière, Mbaye, Bedjaoui; Judge ad hoc Colliard;
AGAINST: Judges Mosler, Oda, Ago, Schwebel and
Sir Robert Jennings;
(b) finds, by fourteen votes to two, that it has
jurisdiction to entertain the Application filed by the Republic of
Nicaragua on 9 April 1984, insofar as that Application relates to
a dispute concerning the interpretation or application of the
Treaty of Friendship, Commerce and Navigation between the
United States of America and the Republic of Nicaragua signed at
Managua on 21 January 1956, on the basis of Article XXIV of that
Treaty;
IN FAVOUR: President Elias; Vice-President Sette-Camara;
Judges Lachs, Morozov, Nagendra Singh, Mosler, Oda,
Ago, E1-Khani, Sir Robert Jennings, de Lacharrière,
Mbaye, Bedjaoui; Judge ad hoc Colliard;
AGAINST: Judges Ruda and Schwebel;
(c) finds
- 12 -
(c) finds, by fifteen votes to one, that it has
jurisdiction to entertain the case;
IN FAVOUR: President Flise: Vice-President Sotto-Camere:
Judges Lachs, Morozov, Nagendra Singh, Ruda, Mosler,
Oda, Ago, E1-Khani, Sir Robert Jennings, de Lacharrière,
Mbaye, Bedjaoui; Judge ad hoc Colliard;
AGAINST: Judge Schwebel;
(2) finds, unanimously, that the said Application is
admissible."
Annex to press communiqué 84/39
Summary of Opinions appended to the
Judgment U1 the Court
Separate Opinion by Judge Nagendra Singh
While Judge Nagendra Singh has voted for the jurisdiction of the Court on
both counts, namely under the Optional Clause of Article 36, paragraphs 2
and 5, of the Statute of the Court, as well as under Article 36,
paragraph 1, of the Statute on the basis of Article XXIV, paragraph 2, of
the Treaty of Friendship, Commerce and Navigation of 21 January 1956, he
has felt all along in those proceedings that the jurisdiction of the Court
resting upon the latter, namely the Treaty, provides a clearer and a firmer
ground than the Jurisdiction based on the Optional Clause of Article 36 (2)
and (5) of the Statute. The difficulties which confront the Court in
relation to the imperfect acceptance of the jurisdiction by Nicaragua and the
unwilling response from the United States, as revealed by its declaration of
6 April 1984 intended to bar the Court's jurisdiction in relation to
any dispute with the Central American States for a period of two years.
In addition there is also the question of reciprocity in relation to six
months' notice of termination stipulated in the United States declaration
of 14 August 1946. On the other hand, the Treaty of 1956 does provide
a clear jurisdictional base, although the field of the jurisdiction is
restricted to disputes concerning the interpretation and application of
that Treaty. However, the said jurisdiction is not subject to the
multilateral treaty reservation of the United States, which is applicable
to the Court's jurisdiction under the Optional Clause of Article 36(2)
of the Statute. Another helpful feature of the jurisdiction based on
the Treaty of 1956 is that it would help to specify and legally
channelise the issues of the dispute. The Parties will have to come to
the Court under the Treaty, invoking legal principles and adopting legal
procedures which would helpfully place legal limits to the presentation
of this sprawling dispute, which could otherwise take a non-legal
character, thus raising the problem of sorting out what is justiciable
as opposed to non-justiciable matters being brought before the Court.
He concludes, therefore, that the jurisdiction of the Court as based on
the Treaty is clear, convincing and reliable. Nicaragua will now have
to spell out clearly and specifically the violations of the Treaty
involving its interpretation and application when the Court proceeds to
consider the merits of the case.
Separate
- 2 -
Separate Opinion by Judge Ruda
The
finding that it had jurisdiction to entertain the Application, on the
basis of Article 36, paragraphs 2 and 5, of the Statute of the Court,
concerns three points: the Treaty of Friendship, Commerce and
Navigation of 1956 as a basis of the Court's jurisdiction, the
reservation contained in proviso (c) of the United States declaration
of 1946, and the conduct of States as a basis for the Court's
jurisdiction.
In regard to the first point, Judge Ruda maintains that the
Parties have not fulfilled the conditions set forth in Article XXIV
of the Treaty, which therefore cannot serve as a basis for the
jurisdiction of the Court.
In regard to the second point, he considers that the reservation
contained in proviso (c) of the declaration is not applicable in the
present instance because there is not only a dispute between the
United States and Nicaragua but also a separate dispute between, on
the one hand, Honduras, El Salvador and Costa Rica and, on the other
hand, Nicaragua.
In regard to the third point, Judge Ruda is of the opinion that
the conduct of States does not constitute an independent basis for
the Court's jurisdiction if there has been no deposit of a declaration
accepting the optional clause with the Secretary-General of the
United Nations.
Judge Ruda concurs in the Court's interpretation of Article 36,
paragraph 5, of the Statute.
Separate Opinion by Judge Mosler
Judge Mosler does not agree with the opinion of the Court that it
has jurisdiction on the basis of the Nicaraguan declaration of 1929
relating to the jurisdiction of the Permanent Court of International
Justice. In his view the Court possesses jurisdiction only on the basis
of the 1956 Treaty of Friendship, Commerce and Navigation between the
Parties.
Separate
- 3 -
Separate Opinion by Judge Oda
Judge Oda concurs in the conclusion of the Court solely because the
case can be sustained under the 1956 Treaty between Nicaragua and the
United States. Thus in his view the scope of the case should be strictly
limited to any violation of specific provisions of that Treaty.
However, Judge Oda holds the firm view that this case cannot be
entertained under the Optional Clause of the Statute, for the following
two reasons. First, there is no ground for concluding that Nicaragua
can be held to have legal standing in the present proceedings on the
basis of the acceptance of the Optional Clause. Secondly, assuming that
Nicaragua has legal standing in the present proceedings, the United States
by its Shultz letter of 6 April 1984 effectively excluded, before the
seisin of the case, the type of dispute at issue from its obligation under
the Optional Clause in its relation to Nicaragua: when it is sought to
bring a case before the Court under that clause, a provision fixing a
certain duration, such as in the United States declaration, cannot,
because of the rule of reciprocity, be invoked by another party whose
declaration is terminable or amendable at any time.
Separate Opinion by Judge Ago
Judge Ago concurred in the Court's finding that it had jurisdiction
to entertain the merits of the case because of his conviction that a valid
link of jurisdiction between the Parties was present in Article XXIV (2)
of the Treaty of Friendship, Commerce and Navigation concluded between
the United States of America and Nicaragua on 21 January 1956. That link,
in his view, conferred jurisdiction upon the Court to consider Nicaragua's
claims implying breaches of that Treaty by the United States.
Judge Ago did not reach the same conclusion as regards the broader
jurisdictional link presented by the Judgment as deducible from the facts
concerning the acceptance by both Nicaragua and the United States of the
Court's compulsory jurisdiction by unilateral declaration, since he
remained unconvinced of the existence of that link either in fact or in
law.
Separate
- 4 -
Separate Opinion by Judge Sir Robert Jennings
The Court does not have jurisdiction under Article 36, paragraph 5,
of its Statute because Nicaragua never became a party to the Statute of
the Permanent Court; accordingly, its declaration made under Article 36
of that Court's Statute cannot be one "still in force" in the sense of
Article 36, paragraph 5, of the present Court's Statute, because it never
was in force. To attempt to support a different view on entries in
reference books such as the Yearbooks of the Court is wrong in principle
and unsupported by the facts relied on.
In any event the letter of 6 April 1984 from the United States
Secretary of State bars jurisdiction because the recent practice shows
that States have the right to withdraw or alter their optional clause
declarations with immediate effect, at any time before an application
to the Court based on the declaration.
Sir Robert concurs with the Court's decision in respect of the
United States multilateral treaties reservation; and the 1956 Treaty of
Friendship, Commerce and Navigation.
Dissenting Opinion by Judge Schwebel
Judge Schwebel dissented from the judgment of the Court, which he
found to be "in error on the principal questions of jurisdiction"
involved. However, if the Court were correct in finding that it has
jurisdiction, then the case would be admissible.
On the question of whether Nicaragua is party to the Court's
compulsory jurisdiction under its Optional Clause, and thus has standing
to maintain suit against the United States, Judge Schwebel concluded that
it is not a party and hence lacks standing. Nicaragua has never adhered
to this Court's compulsory jurisdiction under the Optional Clause. It
claimed that it nevertheless was party by reason of its 1929 declaration
accepting the compulsory jurisdiction of the Permanent Court of
International Justice. If the 1929 declaration had come into force,
Nicaragua would be deemed party to this Court's compulsory jurisdiction
by operation of Article 36, paragraph 5, of this Court's Statute. But
Nicaragua's 1929 declaration had never come into force. Under the terms
of Article 36, paragraph 5, accordingly it has no period in which it
still runs, since it never begun to run at all. It has no period which
has not yet expired since its declaration never was "inspired".
That this is the correct interpretation of Article 36, paragraph 5,
is demonstrated not only by the plain meaning of its text, but by the
drafting history of the article at the San Francisco Conference and by
four cases of this Court. All, clearly and uniformly, construe
Article 36, paragraph 5,as referring exclusively to declarations made`
under the Statute of the Permanent Court by which States were "bound",
i.e, which were in force.
The
- 5 -
The fact that, for almost 40 years, Nicaragua has been listed in the
Yearbook of this Court and elsewhere as bound under the Optional Clause
is not sufficient to overturn this conclusion or
establish Nicaragua's stending. The Yearbooks have always contained or
referred to a footnote warning the reader that Nicaragua's adherence to
the Optional Clause was in doubt. Moreover, Nicaragua's conduct has been
equivocal. Not only has it failed to manifest its intent to be bound by
this Court's compulsory jurisdiction by depositing a declaration. It
also evaded obvious occasion for declaring that it recognized itself to
be bound under Article 36, paragraph 5, as in the King of Spain case.
Even if, however, Nicaragua had standing to maintain suit under the
Optional Clause, it may not do so against the United States. Assuming
Nicaragua's declaration to be binding, Nicaragua could terminate it at
any time with immediate effect. By operation of the rule of reciprocity,
the United States likewise could terminate its adherence to the Court's
compulsory jurisdiction, vis-à-vis Nicaragua, with immediate effect.
Thus, while generally the United States could not terminate or modify its
adherence to the Court's compulsory jurisdiction - as its notification of
April, 1984 purports to do - on less than six months' notice, it could
validly do so in relationship to Nicaragua.
In any event, even if the United States could not terminate its
declaration vis-à-vis Nicaragua, by the terms of its multilateral treaty
reservation to its declaration, the United States is entitled to exclude
Nicaragua's reliance in its Application on four multilateral treaties,
including the United Nations and OAS Charters, unless all other parties
to the treaties affected by the decision are parties to the case. Those
parties - as is demonstrated by the pleadings of Nicaragua in the case -
are Honduras, Costa Rica and El Salvador. Since those States are not
parties, Nicaraguan reliance on those four treaties should have been
barred by the Court. However, the Court - erroneously in
Judge Schwebel's view - has held that those other States cannot now be
identified and appears to have put off the question of application of the
reservation to the stage of the merits.
Finally, in Judge Schwebel's view, the Court does not have
jurisdiction over the claims made against the United States by Nicaragua
in its Application by reason of their being party to a bilateral Treaty
of Friendship, Commerce and Navigation. Nicaragua had failed to pursue
the procedural prerequisites for invoking that treaty as the basis of the
Court's jurisdiction. More than that, this purely commercial treaty has
no plausible relationship to the charges of aggression and intervention
made in Nicaragua's Application.
INTERNAL NSC ROUTING
January 19, 1985
JOHN G. ROBERTS:
Attached State memo
fwded to you from Robert M.
Kimmitt for your information.
H. West
NSC/S
X3724
Ruberts,J.
Roberts
S/S 8501625
United States Department of State
Washington, D.C. 20520
January 18, 1985
UNCLASSIFIED
MEMORANDUM FOR MR. ROBERT C. MCFARLANE
THE WHITE HOUSE
SUBJECT: Decision to Withdraw from the ICJ Case
Attached for the use of White House officials is a set of
selected materials giving the essential arguments for the
President's decision to withdraw from the Nicaragua/ICJ case.
These materials include:
-- The official announcement of US withdrawal from the
case,
-- Policy Themes for Public Briefings, and
-- Selected Questions and Answers.
Separately we are providing copies of additional background
material.
Nicholas Bmokmlay
Executive Secretary
Attachments
As stated
UNCLASSIFIED
US Withdrawal from the Proceedings Initiated
by Nicaragua in the International Court of Justice
The United States has consistently taken the position that
the proceedings initiated by Nicaragua in the International
Court of Justice are a misuse of the Court for political
purposes and that the Court lacks jurisdiction and competence
over such a case. The Court's decision of November 26, 1984,
finding that it has jurisdiction, is contrary to law and fact.
With great reluctance, the United States has decided not to
participate in further proceedings in this case.
US Policy in Central America
United States policy in Central America has been to promote
democracy, reform, and freedom; to support economic
development; to help provide a security shield against those --
like Nicaragua, Cuba, and the USSR -- who seek to spread
tyranny by force; and to support dialogue and negotiation both
within and among the countries of the region. In providing a
security shield, we have acted in the exercise of the inherent
right of collective self-defense, enshrined in the United
Nations Charter and the Rio Treaty. We have done SO in defense
of the vital national security interests of the United States
and in support of the peace and security of the hemisphere.
Nicaragua's efforts to portray the conflict in Central
America as a bilateral issue between itself and the United
States cannot hide the obvious fact that the scope of the
problem is far broader. In the security dimension, it involves
a wide range of issues: Nicaragua's huge buildup of Soviet
arms and Cuban advisers, its cross-border attacks and promotion
of insurgency within various nations of the region, and the
activities of indigenous opposition groups within Nicaragua.
It is also clear that any effort to stop the fighting in the
region would be fruitless unless it were part of a
comprehensive approach to political settlement, regional
security, economic reform and development, and the spread of
democracy and human rights.
The Role of the International Court of Justice
The conflict in Central America, therefore, is not a narrow
legal dispute; it is an inherently political problem that is
not appropriate for judicial resolution. The conflict will be
solved only by political and diplomatic means -- not through a
judicial tribunal. The International Court of Justice was
never intended to resolve issues of collective security and
self-defense and is patently unsuited for such a role. Unlike
domestic courts, the World Court has jurisdiction only to the
extent that nation-states have consented to it. When the
-2-
United States accepted the Court's compulsory jurisdiction in
1946, it certainly never conceived of such a role for the Court
in such controversies. Nicaragua's suit against the United
States -- which includes an absurd demand for hundreds of
millions of dollars in reparations -- is a blatant misuse of
the Court for political and propaganda purposes.
As one of the foremost supporters of the International
Court of Justice, the United States is one of only 44 of 159
member states of the United Nations that have accepted the
Court's compulsory jurisdiction at all. Furthermore, the vast
majority of these 44 states have attached to their acceptance
reservations that substantially limit its scope. Along with
the United Kingdom, the United States is one of only two
permanent members of the UN Security Council that have accepted
that jurisdiction. And of the 16 judges now claiming to sit in
judgment on the United States in this case, 11 are from
countries that do not accept the Court's compulsory
jurisdiction.
Few if any other countries in the world would have appeared
at all in a case such as this which they considered to be
improperly brought. Nevertheless, out of its traditional
respect for the rule of law, the United States has participated
fully in the Court's proceedings thus far, to present its view
that the Court does not have jurisdiction or competence in this
case.
The Decision of November 26
On November 26, 1984, the Court decided -- in spite of the
overwhelming evidence before it -- that it does have
jurisdiction over Nicaragua's claims and that it will proceed
to a full hearing on the merits of these claims.
This decision is erroneous as a matter of law and is based
on a misreading and distortion of the evidence and precedent:
--The Court chose to ignore the irrefutable evidence that
Nicaragua itself never accepted the Court's compulsory
jurisdiction. Allowing Nicaragua to sue where it could not be
sued was a violation of the Court's basic principle of
reciprocity, which necessarily underlies our own consent to the
Court's compulsory jurisdiction. On this pivotal issue in the
November 26 decision -- decided by a vote of 11-5 -- dissenting
judges called the Court's judgment "untenable" and
"astonishing" and described the US position as "beyond doubt.
We agree.
--El Salvador sought to participate in the suit to argue that
the Court was not the appropriate forum to address the Central
- 3 -
American conflict. El Salvador declared that it was under
armed attack by Nicaragua and, in exercise of its inherent
right of self-defense, had requested assistance from the United
States. The Court rejected El Salvador's application summarily
-- without giving reasons and without even granting El Salvador
a hearing, in violation of El Salvador's right and in disregard
of the Court's own rules.
The Court's decision is a marked departure from its past,
cautious approach to jurisdictional questions. The haste with
which the Court proceeded to a judgment on these issues --
noted in several of the separate and dissenting opinions --
only adds to the impression that the Court is determined to
find in favor of Nicaragua in this case.
For these reasons, we are forced to conclude that our
continued participation in this case could not be justified.
In addition, much of the evidence that would establish
Nicaragua's aggression against its neighbors is of a highly
sensitive intelligence character. We will not risk US national
security by presenting such sensitive material in public or
before a Court that includes two judges from Warsaw Pact
nations. This problem only confirms the reality that such
issues are not suited for the International Court of Justice.
Longer-Term Implications of the Court's Decision
The Court's decision raises a basic issue of sovereignty.
The right of a state to defend itself or to participate in
collective self-defense against aggression is an inherent
sovereign right that cannot be compromised by an inappropriate
proceeding before the World Court.
We are profoundly concerned also about the long-term
implications for the Court itself. The decision of November 26
represents an overreaching of the Court's limits, a departure
from its tradition of judicial restraint, and a risky venture
into treacherous political waters. We have seen in the United
Nations, in the last decade or more, how international
organizations have become more and more politicized against the
interests of the Western democracies. It would be a tragedy if
these trends were to infect the International Court of
Justice. We hope this will not happen, because a politicized
Court would mean the end of the Court as a serious, respected
institution. Such a result would do grievous harm to the goal
of the rule of law.
-4-
These implications compel us to clarify our 1946 acceptance
of the Court's compulsory jurisdiction. Important premises on
which our initial acceptance was based now appear to be in
doubt in this type of case. We are therefore taking steps to
clarify our acceptance of the Court's compulsory jurisdiction
in order to make explicit what we have understood from the
beginning, namely that cases of this nature are not proper for
adjudication by the Court.
We will continue to support the International Court of
Justice where it acts within its competence -- as, for example,
where specific disputes are brought before it by special
agreement of the parties. One such example is the recent case
between the United States and Canada before a special
five-member Chamber of the Court to delimit the maritime
boundary in the Gulf of Maine area. Nonetheless, because of
our commitment to the rule of law, we must declare our firm
conviction that the course on which the Court may now be
embarked could do enormous harm to it as an institution and to
the cause of international law.
Policy Themes for Public Briefings
I
The Central American conflict is clearly a broad
conflict with political, social, economic, and
security dimensions. It will only be resolved by
political and diplomatic means, not by a judicial
tribunal.
:
It is also not a bilateral dispute between the United
States and Nicaragua. Other countries of Central
America are victims of Nicaraguan aggression.
--
This suit is a cynical misuse of the ICJ by Nicaragua
for political and propaganda purposes. A
Marxist-Leninist regime, whose ideology bears nothing
but contempt for international law, is trying here to
use our own respect for law against us, exploiting the
legal process as a political weapon against the
democracies which have always been the main bulwark of
international law.
:
US policy in Central America is addressing all the
dimensions of the problem -- through diplomacy
(support for Contadora, Shlaudeman-Tinoco talks) ;
economic aid (Jackson Plan) ; support for democracy
(free elections, human rights) ; and providing a
security shield (security assistance, training) in
accordance with the inherent right of collective
self-defense.
--
Our main grievance is with Nicaragua, which is
committing aggression against its neighbors. We are
sorry the Court let itself be misused by Nicaragua.
--
A basic issue of sovereignty is involved. The World
Court can function only with the consent of sovereign
states. There was no US consent in this case.
--
The President and the Congress, not the World Court,
will continue to decide when our national interest
requires the United States to act in exercise of the
inherent right of individual or collective
self-defense.
- 2 -
The Court was unwise to venture, for the first time,
into such treacherous political waters as the Central
American conflict. Such a course is very risky for
the Court. Our own Supreme Court stays out of highly
political cases; the ICJ has even more reason to
exercise such restraint, since its role and authority
within the world community are less secure and more
narrowly defined and since, unlike a US court, the ICJ
is dependent on the consent of the parties.
The Court's conduct in this case -- its departure from
its usual cautious treatment of jurisdictional
questions; its refusal of El Salvador's application to
intervene; and other aspects -- also raise questions
about whether the United States could get a fair
hearing in this case. The Court seemed predisposed to
take the case and to find for Nicaragua.
I
We have seen in the United Nations in recent years how
international organizations have become more and more
politicized against the interests of the Western
democracies. It would be tragic if these trends were
to infect the World Court. We hope this will not
happen, because a politicized Court would mean the end
of the Court as a serious, respected institution.
W0240S
Q. Isn't this inconsistent with traditional American respect
for international law?
A. Not at all. We continue to respect the World Court when it
acts within its competence. This lawsuit by Nicaragua is a
misuse of the Court for political and propaganda purposes.
We are concerned, in fact, that Nicaragua's cynical action
-- and the Court's unwarranted assertion of jurisdiction --
could themselves do serious harm to the Court and to the
cause of international law.
Q. Isn't this an admission that we were likely to lose?
A. We are withdrawing from the case because we believe the
Court has no authority or competence over cases involving
such issues of collective security and self-defense. The
Court's handling of the case to date also raises serious
questions about whether we are likely to get a fair hearing
in this case.
a:
What happens if the Court proceeds with the case without
us, decides against us in the end, and assesses damages
against us?
A. That's hypothetical. We will face those issues if and when
they happen.
Q. Doesn't this show that the U.S. prefers a military solution
rather than a peaceful solution in Central America?
A. No. Our policy in Central America is to promote democracy,
economic progress, and a negotiated solution to the
conflict. The conflict is a broad and complicated one
involving a number of countries and many issues. It cannot
be solved by a judicial tribunal, but only by political and
diplomatic means such as the Contadora process, which we
support. US military assistance provides a shield behind
which other elements of our policy (political, economic,
and diplomatic) can advance.
Q. Doesn't this make the U.S. look like an outlaw nation --
first mining Nicaragua's harbors illegally and then showing
contempt for the World Court?
A.
The central problem in Central America is Nicaragua --
its militarism, its subversion of its neighbors, its
alliance with Cuba and the USSR, and its totalitarian
system. Nicaragua's lawsuit is a propaganda exercise and a
diversion from the main issues.
Our policy in Central America is to promote democracy,
economic progress, and a negotiated solution. That's the
right policy. This legal proceeding cannot contribute to a
solution.
- 2 -
implementing regulations by the Secretary of the Treasury,
which would make the sanctions effective as of May 7. The
delay will avoid U.S. passengers being stranded or hardship
caused to U.S. shippers and importers who have transportation
arrangements in place before the sanctions are announced. A
draft message to Congress, designed to meet the reporting
requirements of IEEPA, is at Tab 2.
Our existing FCN treaty with Nicaragua (like many similar
treaties with other countries) gives the International Court of
Justice jurisdiction over disputes. under the Treaty. The
Treaty expressly prohibits restrictions on imports and exports
and guarantees free access to ports. Although the treaty does
not preclude a party from "the application of measures
necessary to protect its essential security interests, this
would not bar the Court's jurisdiction. The issue would have
to be argued in proceedings on the merits.
Thus, we could well face a new Nicaraguan ICJ case to which
we would have no obvious jurisdictional defenses and would
therefore need to defend on the merits. Another international
legal risk is the possibility that Nicaragua might use the
proposed sanctions as grounds for new allegations in the case
already pending before the ICJ. If successful, this would
undercut our position denying ICJ jurisdiction.
Also, adoption of a trade embargo is likely to be
challenged by Nicaragua under the GATT.
We intend to initiate a diplomatic campaign to gain
understanding for our actions by friendly governments in Latin
America and Western Europe, although many will avoid taking
sides. We would also ask the Central American countries to
take symbolic, supportive actions. We do not anticipate that
European or other Latin American nations will announce
sanctions against Nicaragua and some could support Nicaragua
economically. The timing of Ortega's current mission to Noscow
makes Soviet economic benefits likely.
We also have considered other sanctions, such as a default
declaration on official debt, a freeze of official Nicaraguan
assets, travel restrictions, closure of the GRN trade office
and a broader ban on all transactions. Each has important
factual, legal or policy complications requiring further
study. Accordingly, such actions, while being studied
actively, are not among the measures recommended for immediate
announcement.
There was a strong consensus also that we should not now
recall the U.S. Ambassador in Managua or take other steps to
SECRET
8513057
United States Department of State
Washington. D.C. 20520
DRAFT
SECRET
MEMORANDUM FOR MR. ROBERT C. MCFARLANE
THE WHITE HOUSE
SUBJECT:
Economic Sanctions Against Nicaragua
We have reviewed carefully with all concerned agencies the
possible range of actions that should be taken now vis-a-vis
Nicaragua. There is agreement that the economic sanctions
described below should be announced promptly. Under current
circumstances, such sanctions offer the most effective way to
maintain pressure on the Sandinistas, to send a strong signal
of resolve to the Soviets and to reassure the Nicaraguan
democratic opposition and our allies in Central America of U.S.
determination to continue to oppose firmly communist expansion
in the region.
We recommend the following immediate steps:
--
U.S. trade embargo. We propose that you declare a
national emergency under the International
Emergency Economic Powers Act (IEEPA) and ban
imports into the U.S. of all goods and services
from Nicaragua to the U.S. and all exports of goods
from the U.S. to Nicaragua. An exception to the
embargo will allow continued exports to the
organized democratic resistance in Nicaragua.
(Certain humanitarian exports to Nicaragua are also
permitted under the statute.)
NLS F05-139/1 419453
BY NARA, DATE 6/22/06
Termination of U.S.-Nicaraguan FCN treaty. We
would deliver to the Government of Nicaragua a
formal notice of termination of the 1956
U.S.-Nicaragua Treaty of Friendship, Commerce and
Navigation. Termination would occur one year from
notification in accordance with the terms of the
treaty.
--
Termination of Nicaraguan air and maritime
service. We would suspend scheduled service to the
United States by the Nicaraguan national airline
and close our ports to all Nicaraguan flag vessels.
At Tab 1 is a draft Executive Order necessary to give
effect to the trade embargo and to authorize the termination of
air and maritime service. This draft Order authorizes
SECRET
DECL: OADR
SECRET
- 3 -
downgrade diplomatic relations. It is important to our future
Congressional efforts that our actions not be interpreted as a
sign of unwillingness to maintain diplomatic channels of
communication. Withdrawal of our Ambassador under current
circumstances would send the wrong signal.
Our overall public approach is one of firmness,
maintaining strong pressure on the Nicaraguan government in
support of a peaceful political settlement. A draft statement
on these measures is attached at Tab 3. It is designed to
reassure our friends about our steadfastness while making the
strongest possible case for a renewal of official U.S. support
for the democratic resistance in Nicaragua. The central
message is one of determination to continue our pressures
against Nicaragua and a reiteration of the President's April 4
peace initiative which called. for a Sandinista ceasefire and
dialogue with the unified opposition.
We are prepared to initiate promptly Congressional
consultations on April 30 if the President approves these
proposals. Given the extensive support for economic sanctions
voiced in the debate last week, by our supporters and opponents
alike, it will be difficult for them to oppose these actions.
They are more likely to view them as a further sign of our
determination to return soon on the question of support for the
democratic resistance.
It is important to regain the initiative on Nicaragua and
there is unanimity among both the economic and national
security agencies that the package of actions proposed here,
despite some problems, will advance U.S. interests and should
be undertaken promptly.
Nicholas Platt
Executive Secretary
Attachments:
Tab 1 - Draft Executive Order
Tab 2 - Draft Congressional Message
Tab 3 - Draft Presidential Statement
SECRET
file
Nacaragera
SYSTEM II
NATIONAL SECURITY COUNCIL
90468
WASHINGTON, D.C. 20506
SECRET
ATTACHMENT
April 30, 1985
MEMORANDUM FOR DICK HAUSER
RALPH TARR
RICHARD WILLARD
MARGERY WAXMAN
RUSS MUNK
JOHN COONEY
SUBJECT:
State Paper on Nicaragua Sanctions
Attached is an advance copy of State's Nicaragua
sanctions paper. It will be proposed that the
President sign the Executive Order prior to
departure for Europe at 9:00pm this evening.
While OMB will lead the executive order clearing
process, I thought it important to get each of you
an advance copy as soon as possible.
Bob Kinnutt
Robert M. Kimmitt
Executive Secretary
and
General Counsel
SECRET
ATTACHMENT
EXECUTIVE ORDER
-
-
-
-
PROHIBITING TRADE AND CERTAIN OTHER
TRANSACTIONS INVOLVING NICARAGUA
Pursuant to the authority vested in me as President by the
Constitution and statutes of the United States, including the
International Emergency Economic Powers Act (50 U.S.C. 1701 et
seq.), the National Emergencies Act (50 U.S.C. 1601 et seq.),
and Section 301 of Title 3 of the United States Code, I, Ronald
Reagan, President of the United States, find that the policies
and actions of the Government of Nicaragua constitute an
unusual and extraordinary threat to the national security and
foreign policy of the United States and hereby declare a
national emergency to deal with that threat.
I hereby prohibit all imports of goods and services of
Nicaraguan origin; all exports of goods to or destined for
Nicaragua, except those destined for the organized democratic
resistance, and transactions relating thereto.
I hereby prohibit Nicaraguan air carriers from engaging in
scheduled service to or from points in the United States, and
transactions relating thereto.
In addition, I hereby prohibit vessels of Nicaraguan
registry from entering into United States ports, and
transactions relating thereto.
The Secretary of the Treasury is delegated and authorized
to employ all powers granted to me by the International
- 2 -
Emergency Economic Powers Act to carry out the purposes of this
order.
This order is effective as of May 7, 1985 and shall be
transmitted to the Congress and published in the Federal
Register.
The White House
April 30, 1985
- 3 -
Wang I.D. 1910X
TO THE CONGRESS OF THE UNITED STATES:
Pursuant to section 204 (b) of the International Emergency
Economic Powers Act, 50 U.S.C. 1703, I hereby report to the
Congress that I have today exercised my statutory authority to
declare a national emergency and to prohibit:
(1) all imports into the United States of goods and services of
Nicaraguan origin; (2) all exports of goods to or destined for
Nicaragua except those destined for the organized democratic
resistence; (3) Nicaraguan air carriers from engaging in
scheduled service to or from points in the United States; and
(4) vessels of Nicaraguan registry from entering into United
States ports.
I am enclosing a copy of the Executive Order that I have
issued today making this declaration and exercising these
authorities.
1. I have authorized these steps in response to the emergency
situation created by the Nicaraguan Government's aggressive
activities in Central America. Nicaragua's continuing efforts
to subvert its neighbors, its rapid and destabilizing military
buildup, its close military and security ties to Cuba and the
Soviet Union and its imposition of Communist totalitarian
internal rule have been described fully in the past several
weeks. The current visit by Nicaraguan President Ortega to
Moscow underscores this disturbing trend. The recent rejection
by Nicaragua of my peace initiative, viewed in the light of the
- 2 -
constantly rising pressure that Nicaragua's military buildup
places on the democratic nations of the region, makes clear the
urgent threat that Nicaragua's activities represent to the
security of the region and, therefore, to the security and
foreign policy of the United States. The activities of
Nicaragua, supported by the Soviet Union and its allies, are
incompatible with normal commercial relations.
2. In taking these steps, I note that during this month's
debate on U.S. policy toward Nicaragua, many Members of
Congress, both supporters and opponents of my proposals, called
for the early application of economic sanctions.
3. I have long made clear that changes in Sandinista behavior
must occur if peace is to be achieved in Central America. At
this time, I again call on the Government of Nicaragua:
O
to halt its export of armed insurrecton, terrorism and
subversion in neighboring countries;
O
to end its extensive military relationship with Cuba
and the Soviet Bloc and remove their military and
security personnel;
to stop its massive arms buildup and help restore the
regional military balance; and
to respect, in law and in practice, democratic
pluralism and observance of full political and human
rights in Nicaragua.
- 3 -
4. U.S. application of these sanctions should be seen by the
Govenment of Nicaragua, and by those who abet it, as
unmistakable evidence that we take seriously the obligation to
protect our security interests and those of our friends. I ask
the Government of Nicaragua to address seriously the concerns
of its neighbors and,its own opposition and to honor its solemn
commitments to non-interference, non-alignment, respect for
democracy, and peace. Failure to do so will only diminish the
prospects for a peaceful settlement in Central America.
DRAFT WHITE HOUSE ANNOUNCEMENT
Economic Sanctions Against Nicaragua
The President today ordered the imposition by the United
States of economic sanctions against the Government of
Nicaragua under authority granted by the International
Emergency Economic Powers Act and other authorities. The
sanctions include, a total embargo on trade with Nicaragua,
notification of U.S. intent to terminate its Treaty of
Friendship, Commerce and Navigation with Nicaragua, and the
suspension of service to the United States by the Nicaraguan
national airline and Nicaraguan flag vessels. A report on
these actions is being sent today to the Congress.
The President authorized these steps in response to the
emergency situation created by the Nicaraguan Government's
aggressive activities in Central America. Nicaragua's
continuing efforts to subvert its neighbors, its rapid and
destabilizing military buildup, its close military and security
ties to Cuba and the Soviet Union and its imposition of
Communist totalitarian internal rule has been described fully
in the past several weeks. The current visit by Nicaraguan
President Ortega to Moscow underscores this disturbing trend.
The recent rejection by Nicaragua of the President's peace
initiative, viewed in the light of the constantly rising
pressure that Nicaragua's military buildup places on the
democratic nations of the region, makes clear the urgent threat
that Nicaragua's activities represent to the security of the
region, and, therefore, to the security and foreign policy of
the United States. The activities of Nicaragua, supported by
the Soviet Union and its allies, are incompatible with normal
commerical relations.
During this month's debate on U.S. policy toward
Nicaragua, many Members of Congress, both supporters and
opponents of the Administration's proposals, called for the
early application of economic sanctions.
The Administration has long made clear that changes in
Sandinista behavior must occur if peace is to be achieved in
Central America. In making this announcement, the President
again calls on the Government of Nicaragua:
O
to halt to its export of armed insurrection,
terrorism and subversion in neighboring countries;
to end its extensive military relationship with Cuba
and the Soviet Bloc and remove their military
personnel;
to stop its massive arms buildup and help restore the
regional military balance; and
to respect, in law and in practice, democratic
pluralism and observance of full political and human
rights in Nicaragua.
The Administration has urged the Government of Nicaragua
repeatedly to respect its 1979 commitments to the OAS and more
recently to the 1983 Contadora Document of Objectives, whose
terms closely parallel our own basic objectives. Heretofore
the Sandinistas have ignored or rejected all such appeals. The
American Embassy in Managua renewed again today the President's
proposal for dialogue to the Government of Nicaragua and
reiterated his firm intention to pursue U.S. interests and
national objectives in Central America.
The President remains convinced that dialogue between the
Government of Nicaragua and the Nicaraguan opposition, as
called for by the unified opposition on Marcn 1 and in the
President's April 4 peace proposal, could make a major
contribution to resolution of conflict in the region. The
President continues to believe that direct pressure represents
the only effective means of moderating Nicaraguan behavior and
to that end is prepared to use the means available to him. He
urges all members of the Congress to support future requests
for assistance to the Nicaraguan democratic resistance.
In the meantime, U.S. application of sanctions should be
seen by the Government of Nicaragua, and by those who abet it,
as unmistakable evidence that we take seriously the obligation
to protect our security interests and those of our friends.
The President calls again on the Government of Nicaragua to
address seriously the concerns of its neighbors and its own
opposition and to honor its solemn commitments to
non-interference, non-alignment, respect for democracy, and
peace. Failure to do so will only diminish the
prospects for a peaceful settlement in Central America.
Doc #2626C
THE WHITE HOUSE
WASHINGTON
May 15, 1985
Dear Mr. Snow:
Thank you for your letter of May 4 to Counsel to the President
Fred F. Fielding. That letter requested certain documents
and information on the declaration of a national emergency
with respect to Nicaragua.
I am enclosing a copy of the Executive Order declaring a
national emergency with respect to Nicaragua, and imposing
economic sanctions on that country. Also enclosed are the
report to Congress on the declaration, and a statement by
the Principal Deputy Press Secretary explaining the action
taken. Finally, I have copied from the United States Code
Annotated the provisions of the statutes cited in the
Executive Order, including the International Emergency
Economic Powers Act and the National Emergencies Act. You
should contact the Department of State directly for the
information described in the penultimate sentence of your
letter.
Sincerely,
John G. Roberts
Associate Counsel to the President
Mr. Dan Snow
Bass Research International
P.O. Box 5481
Kingwood, TX 77325
314315
Dg
ID #
CU
C0114
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o - OUTGOING
H - INTERNAL
8c
I # INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Dan snow
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Request for Information
ROUTE TO:
ACTION
DISPOSITION
Tracking
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Action
on
Date
of
Date
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(Staff Name)
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CHALL
ORIGINATOR 85,05,09
/
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Referral Note:
CUAT 17
R
085105110
or S 85/05/20
Referral Note:
/
/
/ /
-
Referral Note:
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-
Referral Note:
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Referral Note:
ACTION CODES
DISPOSITION CODES
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I . Into Copy Only/No Action Necessary
A. Answered
C Completed
C Comment/Recommendation
R Direct Reply w/Copy
B - - Non/Special Referral
S Suspended
D Draft Response
S. For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE: A
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
314315 cu
Bass Research International
713 / 358-2262 /P.O. BOX 5481, KINGWOOD, TEXAS 77325
5/4/85
Mr. Fred Fielding
Council to the President
White House
Washington, D.C.
Dear Mr. Fielding:
I respectfully request that you send me a copy of the report regarding
the National emergency with Nicaragua. If possible, please include
a copy of the Presidents consultation with Congress (transcript).
If it is not to much trouble please forward to me a copy of the IEEPA
or whatever regulation the President is using regarding peanalties,
etc.
If possible, would you please have someone at the White House send
me a copy of the State Departments statement regarding Americans
desiring to do business in Central America to do it thru foreign
subsidaries of U.S. Companies (transcript).
Thank you for your assistance on this matter.
Sincerely,
Don Shorm
Dan Snow