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Collection: Roberts, John G.: Files
Folder Title: JGR/Nicaragua (3 of 5)
Box: 34
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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
Type
Completion
Action
on
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
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Code
YY/MM/DD
CHALL
ORIGINATOR 85,05,09
/
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Referral Note:
CUAT 17
R
085105110
or S 85/05/20
Referral Note:
/
/
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-
Referral Note:
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/
/
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/
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Referral Note:
ACTION CODES
DISPOSITION CODES
A Appropriate Action
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
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"ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/Nicaragua (3 of 5)\nBox: 34\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nWITHDRAWAL SHEET\nRonald Reagan Library\nCollection Name ROBERTS, JOHN: FILES\nWithdrawer\nCAS 7/29/2005\nFile Folder JER/ NICARAGUA (3)\nFOIA\n2005-139\nBox Number\n12661 34\nCOOKE\n1000\nID Doc Type\nDocument Description\nNo of Doc Date Restrictions\nPages\n19453 MEMO\nNICHOLAS PLATT TO ROBERT\n3\nND\nB1\nMCFARLANE RE ECONOMIC\nDrain\nSANCTIONS AGAINST NICARAGUA\n(DRAFT)\n08/03/2005\nR\n6/22/2006\nDOCUMENT PENDING REVIEW IN ACCORDANCE WITH E.O. 13233\nSK\nFreedom of Information Act - [5 U.S.C. 552(b)]\nB-1 National security classified information [(b)(1) of the FOIA]\nB-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]\nB-3 Release would violate a Federal statute [(b)(3) of the FOIA]\nB-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]\nB-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]\nB-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]\nB-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]\nB-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]\nC. Closed in accordance with restrictions contained in donor's deed of gift.\nThe ARMED FORCES\nINAUGUIRAL COMMITTEE\nCARL HYE-KNUDSEN JR.\nSPECIAL PLANS\nLIEUTENANT COLONEL\nTELEPHONE\nUSAF\n(202) 433-7894\nINTERNATIONAL COURT OF JUSTICE\nPeace Palace, 2517 KJ The Hague. Tel. 92 44 41. Cables: Intercourt, The Hague\nTelex 32323\nCommuniqué\nunofficial\nfor immediate release\nNo. 84/39\n26 November 1984\nMilitary and Paramilitary Activities in and against\nNicaragua (Nicaragua V. United States of America)\nJudgment of the Court\nThe following information is communicated to the press by the Registry\nof the International Court of Justice:\nIn the Judgment delivered today 26 November 1984, the International\nCourt of Justice finds, by fifteen votes to one, that it has jurisdiction\nto entertain the case and unanimously that the Application filed by\nNicaragua against the United States of America is admissible.\n*\nThe complete text of the operative part of the Judgment, with the\nvoting figures, is as follows:\n\"THE COURT,\n(1) (a) finds, by eleven votes to five, that it has jurisdiction\nto entertain the Application filed by the Republic of Nicaragua on\n9 April 1984, on the basis of Article 36, paragraphs 2 and 5, of the\nStatute of the Court;\nIN FAVOUR : President Elias; Vice-President Sette-Camara;\nJudges Lachs, Morozov, Nagendra Singh, Ruda,\nEl-Khani, de Lacharrière, Mbaye, Bedjaoui;\nJudge ad hoc Colliard;\nAGAINST : Judges Mosler, Oda, Ago, Schwebel and Sir Robert Jennings;\n(b) finds, by fourteen votes to two, that it has jurisdiction\nto entertain the Application filed by the Republic of Nicaragua on\n9 April 1984, insofar as that Application relates to a dispute concerning\nthe interpretation or application of the Treaty of Friendship, Commerce\nand Navigation between the United States of America and the Republic\nof Nicaragua signed at Managua on 21 January 1956, on the basis of\nArticle XXIV of that Treaty;\nIN\n2\nIN FAVOUR : President Elias; Vice-President Sette-Camara;\nJudges Lachs, Morozov, Nagendra Singh, Mosler, Oda,\nand DIE Robert Jennings, ue Lacharriere,\nMbaye, Bedjaoui; Judge ad hoc Colliard;\nAGAINST : Judges Ruda and Schwebel;\n(c) finds, by fifteen votes to one, that it has jurisdiction\nto entertain the case;\nIN FAVOUR : President Elias; Vice-President Sette-Camara;\nJudges Lachs, Morozov, Nagendra Singh, Ruda, Mosler,\nOda, Ago, El-Khani, Sir Robert Jennings, de Lacharrière,\nMbaye, Bedjaoui; Judge ad hoc Colliard;\nAGAINST : Judge Schwebel;\n(2) finds, unanimously, that the said Application is admissible.\"\n*\nThe Court was composed as follows: President Elias;\nVice-President Sette-Camara; Judges Lachs, Morozov, Nagendra Singh, Ruda,\nMosler, Oda, Ago, El-Khani, Schwebel, Sir Robert Jennings, de Lacharrière,\nMbaye, Bedjaoui; Judge ad hoc Colliard.\n*\nJudges Nagendra Singh, Ruda, Mosler, Oda, Ago and Sir Robert Jennings\nappended separate opinions to the Judgment.\nJudge Schwebel appended a dissenting opinion to the Judgment.\nIn these opinions the Judges concerned state and explain the positions\nthey adopted in regard to certain points dealt with in the Judgment. A\nbrief summary of these opinions may be found in the annex hereto.\n*\nThe printed text of the Judgment and of the opinions will be available\nin a few weeks' time. (Orders and enquiries should be addressed to the\nDistribution and Sales Section, Office of the United Nations, 1211 Geneva 10;\nthe Sales Section, United Nations, New York, N.Y. 19916; or any specialized\nbookshop.)\nAn analysis of the Judgment is attached for the use of the Press. It\nin no way involves the responsibility of the Court. It cannot be quoted\nagainst the text of the Judgment, of which it does not constitute an\ninterpretation.\n*\n*\n*\nAnalvsis\n- 3 -\nAnalysis of the Judgment\nProceedings and Submissions or the rarties (paras. 1-11)\nAfter recapitulating the various stages in the proceedings and\nsetting out the submissions of the Parties (paras. 1-10), the Court\nrecalls that the case concerns 8 dispute between the Government of the\nRepublic of Nicaragua and the Government of the United States of America\narising out of military and paramilitary activities in Nicaragua and in\nthe waters off its coasts, responsibility for which is attributed by\nNicaragua to the United States. In the present phase, the case concerns\nthe Court's jurisdiction to entertain and pronounce upon this dispute, as\nwell as the admissibility of Nicaragua's Application referring it to the\nCourt (para. 11).\nI. The question of the jurisdiction of the Court to entertain\nthe dispute (paras. 12-83)\nA. The declaration of Nicaragua and Article 36, paragraph 5, of the\nStatute of the Court (paras. 12-51)\nTo found the jurisdiction of the Court, Nicaragua relied on Article\n36 of the Statute of the Court and the declarations accepting the\ncompulsory jurisdiction of the Court made by the United States and itself.\nThe relevant texts and the historical background to Nicaragua's\ndeclaration (paras. 12-16)\nArticle 36, paragraph 2, of the Statute of the International Court\nof Justice provides that:\n\"The States parties to the present Statute may at any time\ndeclare that they recognize as compulsory ipso facto and without\nspecial agreement, in relation to any other State accepting the\nsame obligation, the jurisdiction of the Court in all legal\ndisputes concerning:\n(a) the interpretation of a treaty;\n(b) any question of international law;\n(c) the existence of any fact which, if established,\nwould constitute a breach of an international\nobligation;\n(d) the nature or extent of the reparation to be made\nfor the breach of an international obligation.\"\nOn 14 August 1946, under this provision, the United States made a\ndeclaration containing reservations which will be described further\nbelow (page 8). In this declaration, it stated that:\n\"this\n- 4 -\n\"this declaration shall remain in force for a period of five\nyears and thereafter until the expiration of six months after\nnotice may be given to terminate this declaration.\"\nOn 6 April 1984 the Government of the United States deposited with the\nSecretary-General of the United Nations a notification signed by the\nSecretary of State, Mr. George Shultz (hereinafter referred to as \"the\n1984 notification\"), referring to the declaration of 1946, and stating\nthat:\n\"the aforesaid declaration shall not apply to disputes with any\nCentral American State or arising out of or related to events\nin Central America, any of which disputes shall be settled in\nsuch manner as the parties to them may agree.\nNotwithstanding the terms of the aforesaid declaration,\nthis proviso shall take effect immediately and shall remain in\nforce for two years, so as to foster the continuing regional\ndispute settlement process which seeks a negotiated solution to\nthe interrelated political, economic and security problems of\nCentral America.'\nIn order to be able to rely upon the United States declaration of\n1946 to found jurisdiction in the present case, Nicaragua has to show\nthat it is a \"State accepting the same obligation\" as the United States\nwithin the meaning of Article 36, paragraph 2, of the Statute.\nFor this purpose, it relies on a declaration made by it on\n24 September 1929 pursuant to Article 36, paragraph 2, of the Statute of\nthe Permanent Court of International Justice, the predecessor of the\npresent Court, which provided that:\n\"The Members of the League of Nations and the States\nmentioned in the Annex to the Covenant may, either when signing\nor ratifying the Protocol to which the present Statute is\nadjoined, or at a later moment, declare that they recognize as\ncompulsory ipso facto and without special agreement, in\nrelation to any other Member or State accepting the same\nobligation, the jurisdiction of the Court\nin any of the same categories of dispute as listed in Article 36,\nparagraph 2, of the Statute of the present Court.\nNicaragua relies further on Article 36, paragraph 5, of the Statute\nof the present Court, which provides that:\n\"Declarations made under Article 36 of the Statute of the\nPermanent Court of International Justice and which are still in\nforce shall be deemed, as between the parties to the present\nStatute, to be acceptances of the compulsory jurisdiction of\nthe International Court of Justice for the period which they\nstill have to run and in accordance with their terms.\"\nThe Judgment recalls the circumstances in which Nicaragua made its\ndeclaration: on 14 September 1929, as a member of the League of Nations,\nit signed the Protocol of Signature of the Statute of the Permanent\nCourt\n- 5 -\nCourt of International Justice1: this Protocol provided that it was\nsubject to ratification and that instruments of ratification were to be\nsent to the Secretary-General of the League of Nations. On 24 September\n1929 Nicaragua deposited with the Secretarv-General of the Lesgue\ndeclaration under Article 36, paragraph 2, of the Statute of the\nPermanent Court which reads:\n[Translation from the French]\n\"On behalf of the Republic of Nicaragua I recognize as\ncompulsory unconditionally the jurisdiction of the Permanent\nCourt of International Justice.\nGeneva, 24 September 1929.\n(Signed) T.F. MEDINA.\"\nThe national authorities in Nicaragua authorized its ratification,\nand, on 29 November 1939, the Ministry of Foreign Affairs of Nicaragua\nsent a telegram to the Secretary-General of the League of Nations\nadvising it of the despatch of the instrument of ratification. The files\nof the League, however, contain no record of an instrument of\nratification ever having been received and no evidence has been adduced\nto show that such an instrument of ratification was ever despatched to\nGeneva. After the Second World War, Nicaragua became an original Member\nof the United Nations, having ratified the Charter on 6 September 1945;\non 24 October 1945 the Statute of the International Court of Justice,\nwhich is an integral part of the Charter, came into force.\nThe arguments of the Parties (paras. 17-23) and the reasoning of the\nCourt (paras. 24-42)\nThis being the case, the United States contends that Nicaragua never\nbecame a party to the Statute of the Permanent Court and that its 1929\ndeclaration was therefore not \"still in force\" within the meaning of the\nEnglish text of Article 36, paragraph 5, of the Statute of the present\nCourt.\nIn the light of the arguments of the United States and the opposing\narguments of Nicaragua, the Court sought to determine whether Article 36,\nparagraph 5, could have applied to Nicaragua's declaration of 1929.\nThe Court notes that the Nicaraguan declaration was valid at the\ntime when the question of the applicability of the new Statute, that of\nthe International Court of Justice, arose, since under the system of the\nPermanent Court of International Justice a declaration was valid only on\ncondition that it had been made by a State which had signed the Protocol\nof Signature of the Statute. It had not become binding under that\nStatute\n...\n¹While a State admitted to membership of the United Nations\nautomatically becomes a party to the Statute of the International Court\nof Justice, a State member of the League of Nations only became a party\nto that of the Permanent Court of International Justice if it 80 desired,\nand, in that case, it was required to accede to the Protocol of Signature\nof the Statute of the Court.\n- 6 -\nStatute, since Nicaragua had not deposited its instrument of ratification\nof the Protocol of Signature and it was therefore not a party to the\nStatute. However, it is not disputed that the 1929 declaration could\nhave acquired binding force. All that Nicaragu mood\ndeposit its instrument of ratification, and it could have done that at\nany time until the day on which the new Court came into existence. It\nfollows that the declaration had a certain potential effect which could\nbe maintained for many years. Having been made \"unconditionally\" and\nbeing valid for an unlimited period, it had retained its potential effect\nat the moment when Nicaragua became a party to the Statute of the new\nCourt.\nIn order to reach a conclusion on the question whether the effect of\na declaration which did not have binding force at the time of the\nPermanent Court could be transposed to the International Court of Justice\nthrough the operation of Article 36, paragraph 5, of the Statute of that\nbody, the Court took several considerations into account.\nAs regards the French phrase \"pour une durée qui n'est pas encore\nexpirée\" applying to declarations made under the former system, the Court\ndoes not consider it to imply that \"la durée non expirée\" (the unexpired\nperiod) is that of a commitment of a binding character. The deliberate\nchoice of the expression seems to denote an intention to widen the scope\nof Article 36, paragraph 5, so as to cover declarations which have not\nacquired binding force. The English phrase \"still in force\" does not\nexpressly exclude a valid declaration of unexpired duration, made by a\nState not party to the Protocol of Signature of the Statute of the\nPermanent Court, and therefore not of binding character.\nWith regard to the considerations governing the transfer of the\npowers of the former Court to the new one, the Court takes the view that\nthe primary concern of those who drafted its Statute was to maintain the\ngreatest possible continuity between it and the Permanent Court and that\ntheir aim was to ensure that the replacement of one Court by another\nshould not result in a step backwards in relation to the progress\naccomplished towards adopting a system of compulsory jurisdiction. The\nlogic of a general system of devolution from the old Court to the new\nresulted in the ratification of the new Statute having exactly the same\neffects as those of the ratification of the Protocol of Signature of the\nold Statute, i.e., in the case of Nicaragua, a transformation of a\npotential commitment into an effective one. Nicaragua may therefore be\ndeemed to have given its consent to the transfer of its declaration to\nthe International Court of Justice when it signed and ratified the\nCharter, thus accepting the Statute and its Article 36, paragraph 5.\nConcerning the publications of the Court referred to by the Parties\nfor opposite reasons, the Court notes that they have regularly placed\nNicaragua on the list of those States that have recognized the compulsory\njurisdiction of the Court by virtue of Article 36, paragraph 5, of the\nStatute. The attestations furnished by these publications have been\nentirely official and public, extremely numerous and have extended over a\nperiod of nearly 40 years. The Court draws from this testimony the\nconclusion that the conduct of States parties to the Statute has\nconfirmed the interpretation of Article 36, paragraph 5, of the Statute,\nwhereby the provisions of this Article cover the case of Nicaragua.\nThe\n- 7 -\nThe conduct of the Parties (paras. 43-51)\nNicaragua also contends that the validity of Nicaragua's recognition\nof the compulsory jurisdiction of the Court finds an\nthe conduct of the rarties. it argues that its conduct over 38 years\nunequivocally constitutes consent to be bound by the compulsory\njurisdiction of the Court and that the conduct of the United States over\nthe same period unequivocally constitutes its recognition of the validity\nof the declaration of Nicaragua of 1929 as an acceptance of the\ncompulsory jurisdiction of the Court. The United States, however,\nobjects that the contention of Nicaragua is inconsistent with the\nStatute, and in particular that compulsory jurisdiction must be based on\nthe clearest manifestation of the State's intent to accept it. After\nconsidering Nicaragua's particular circumstances and noting that\nNicaragua's situation has been wholly unique, the Court considers that,\nhaving regard to the source and generality of statements to the effect\nthat Nicaragua was bound by its 1929 declaration, it is right to conclude\nthat the constant acquiescence of that State in those affirmations\nconstitute a valid mode of manifestation of its intent to recognize the\ncompulsory jurisdiction of the Court under Article 36, paragraph 2, of\nthe Statute. It further considers that the estoppel on which the\nUnited States has relied and which would have barred Nicaragua from\ninstituting proceedings against it in the Court, cannot be said to apply\nto it.\nFinding: the Court therefore finds that the Nicaraguan declaration\nof 1929 is valid and that Nicaragua accordingly was, for the purposes of\nArticle 36, paragraph 2, of the Statute of the Court, a \"State accepting\nthe same obligation\" as the United States at the date of filing of the\nApplication and could therefore rely on the United States declaration of\n1946.\nB. The declaration of the United States (paras. 52-76)\nThe notification of 1984 (paras. 52-66)\nThe acceptance of the jurisdiction of the Court by the United States\non which Nicaragua relies is the result of the United States declaration\nof 14 August 1946. However, the United States argues that effect should\nbe given to the letter sent to the Secretary-General of the United\nNations on 6 April 1984 (see p. 4 above). It is clear that if this\nnotification were valid as against Nicaragua at the date of filing of the\nApplication, the Court would not have jurisdiction under Article 36 of\nthe Statute. After outlining the arguments of the Parties in this\nconnection, the Court points out that the most important question\nrelating to the effect of the 1984 notification is whether the United\nStates was free to disregard the six months' notice clause which, freely\nand by its own choice, it has appended to its declaration, in spite of\nthe obligation it has entered into vis-à-vis other States which have made\nsuch a declaration. The Court notes that the United States has argued\nthat the Nicaraguan declaration, being of undefined duration, is liable\nto immediate termination, and that Nicaragua has not accepted \"the same\nobligation\" as itself and may not rely on the time-limit proviso against\nit. The Court does not consider that this argument entitles the\nUnited States validly to derogate from the time-limit proviso included\nin\n- 8 -\nin its 1946 declaration. In the Court's opinion, the notion of\nreciprocity is concerned with the scope and substance of the commitments\nentered into, including reservations, and not with the formal conditions\nof their creation, duration or extinction. Reciprocity cannot be invoked\ndeparture from the terms of a State's own declaration.\nThe United States cannot rely on reciprocity since the Nicaraguan\ndeclaration contains no express restriction at all. On the contrary,\nNicaragua can invoke the six months' notice against it, not on the basis\nof reciprocity, but because it is an undertaking which is an integral\npart of the instrument that contains it. The 1984 notification cannot\ntherefore override the obligation of the United States to submit to the\njurisdiction of the Court vis-à-vis Nicaragua.\nThe United States multilateral treaty reservation (paras. 67-76)\nThe question remains to be resolved whether the United States\ndeclaration of 1946 constitutes the necessary consent of the United\nStates to the jurisdiction of the Court in the present case, taking into\naccount the reservations which were attached to the declaration.\nSpecifically, the United States had invoked proviso (c) to that\ndeclaration, which provides that the United States acceptance of the\nCourt's compulsory jurisdiction shall not extend to\n\"disputes arising under a multilateral treaty, unless (1) all\nparties to the treaty affected by the decision are also parties\nto the case before the Court, or (2) the United States of\nAmerica specially agrees to jurisdiction\".\nThis reservation will be referred to as the \"multilateral treaty\nreservation\".\nThe United States argues that Nicaragua relies in its Application on\nfour multilateral treaties, and that the Court, in view of the above\nreservation, may exercise jurisdiction only if all treaty parties\naffected by a prospective decision of the Court are also parties to the\ncase.\nThe Court notes that the States which, according to the United\nStates, might be affected by the future decision of the Court, have made\ndeclarations of acceptance of the compulsory jurisdiction of the Court,\nand are free, any time, to come before the Court with an application\ninstituting proceedings, or to resort to the incidental procedure of\nintervention. These States are therefore not defenceless against any\nconsequences that may arise out of adjudication by the Court and they do\nnot need the protection of the multilateral treaty reservation (insofar\nas they are not already protected by Article 59 of the Statute). The\nCourt considers that obviously the question of what States may be\naffected is not a jurisdictional problem and that it has no choice but to\ndeclare that the objection based on the multilateral treaty reservation\ndoes not possess, in the circumstances of the case, an exclusively\npreliminary character.\nFinding: the Court finds that, despite the United States\nnotification of 1984, Nicaragua's Application is not excluded from the\nscope of the acceptance by the United States of the compulsory\njurisdiction of the Court. The two declarations afford a basis for its\njurisdiction.\nC. The\n- 9 -\nC. The Treaty of Friendship, Commerce and Navigation of 21 January 1956\nas a basis of jurisdiction (paras. 77-83)\nIn its Memorial, Nicaragua also relies, as a \"subsidiary basis\" for\nIN this case, on the Treaty of Friendship,\nCommerce and Navigation which it concluded at Managua with the United\nStates on 21 January 1956 and which entered into force on 24 May 1958.\nArticle XXIV, paragraph 2, reads as follows:\n\"Any dispute between the Parties as to the interpretation\nor application of the present Treaty, not satisfactorily\nadjusted by diplomacy, shall be submitted to the International\nCourt of Justice, unless the Parties agree to settlement by\nsome other pacific means.\"\nNicaragua submits that this treaty has been and is being violated by\nthe military and paramilitary activities of the United States as\ndescribed in the Application. The United States contends that, since the\nApplication presents no claims of any violation of the treaty, there are\nno claims properly before the Court for adjudication, and that, since no\nattempt to adjust the dispute by diplomacy has been made, the\ncompromissory clause cannot operate. The Court finds it necessary to\nsatisfy itself as to jurisdiction under the treaty inasmuch as it has\nfound that the objection based upon the multilateral treaty reservation\nin the United States declaration does not debar it from entertaining the\nApplication. In the view of the Court, the fact that a State has not\nexpressly referred, in negotiations with another States, to a particular\ntreaty as having been violated by the conduct of that other State, does\nnot debar that State from invoking a compromissory clause in that treaty.\nAccordingly, the Court finds that it has jurisdiction under the 1956\nTreaty to entertain the claims made by Nicaragua in its Application.\nII. The question of the admissibility of Nicaragua's Application\n(paras. 84-108)\nThe Court now turns to the question of the admissibility of\nNicaragua's Application. The United States contended that it is\ninadmissible on five separate grounds, each of which, it is said, is\nsufficient to establish such inadmissibility, whether considered as a\nlegal bar to adjudication or as \"a matter requiring the exercise of\nprudential discretion in the interest of the integrity of the judicial\nfunction\".\nThe first ground of inadmissibility (paras. 85-88) put forward by\nthe United States is that Nicaragua has failed to bring before the Court\nparties whose presence and participation is necessary for the rights of\nthose parties to be protected and for the adjudication of the issues\nraised in the Application. In this connection, the Court recalls that it\ndelivers judgments with binding force as between the Parties in\naccordance with Article 59 of the Statute, and that States which consider\nthey may be affected by the decision are free to institute separate\nproceedings or to employ the procedure of intervention. There is no\ntrace, either in the Statute or in the practice of international\ntribunals, of an \"indispensable parties\" rule which would only be\nconceivable in parallel to a power, which the Court does not possess, to\ndirect\n- 10 -\ndirect that a third State be made a party to proceedings. None of the\nStates referred to can be regarded as being in a position such that its\npresence would be truly indispensable to the\nreceedings.\nThe second ground of inadmissibility (paras. 89-90) relied on by the\nUnited States is that Nicaragua is, in effect, requesting that the Court\nin this case determines the existence of a threat to peace, a matter\nfalling essentially within the competence of the Security Council because\nit is connected with Nicaragua's complaint involving the use of force.\nThe Court examines this ground of inadmissibility at the same time as the\nthird ground (paras. 91-98) based on the position of the Court within the\nUnited Nations system, including the impact of proceedings before the\nCourt on the exercise of the inherent right of individual or collective\nself-defence under Article 51 of the Charter. The Court is of the\nopinion that the fact that a matter is before the Security Council should\nnot prevent it from being dealt with by the Court and that both\nproceedings could be pursued pari passu. The Council has functions of a\npolitical nature assigned to it, whereas the Court exercises purely\njudicial functions. Both organs can therefore perform their separate but\ncomplementary functions with respect to the same events. In the present\ncase, the complaint of Nicaragua is not about an ongoing war of armed\nconflict between it and the United States, but about a situation\ndemanding the peaceful settlement of disputes, a matter which is covered\nby Chapter VI of the Charter. Hence, it is properly brought before the\nprincipal judicial organ of the United Nations for peaceful settlement.\nThis is not a case which can only be dealt with by the Security Council\nin accordance with the provisions of Chapter VII of the Charter.\nWith reference to Article 51 of the Charter, the Court notes that\nthe fact that the inherent right of self-defence is referred to in the\nCharter as a \"right\" is indicative of a legal dimension, and finds that\nif, in the present proceedings, it became necessary for the Court to\njudge in this respect between the Parties, it cannot be debarred from\ndoing so by the existence of a procedure requiring that the matter be\nreported to the Security Council.\nA fourth ground of inadmissibility (paras. 99-101) put forward by\nthe United States is the inability of the judicial function to deal with\nsituations involving ongoing armed conflict, since the resort to force\nduring an ongoing armed conflict lacks the attributes necessary for the\napplication of the judicial process, namely a pattern of legally relevant\nfacts discernible by the means available to the adjudicating tribunal.\nThe Court observes that any judgment on the merits is limited to\nupholding such submissions of the Parties as has been supported by\nsufficient proof of relevant facts and that ultimately it is the litigant\nwho bears the burden of proof.\nThe fifth ground of inadmissibility (paras. 102-108) put forward by\nthe United States is based on the non-exhaustion of the established\nprocesses for the resolution of the conflicts occurring in Central\nAmerica. It contends that the Nicaraguan Application is incompatible\nwith the Contadora process to which Nicaragua is a party.\nThe ...\n- 11 -\nThe Court recalls its earlier decisions that there is nothing to\ncompel it to decline to take cognizance of one aspect of a dispute merely\nbecause that dispute has other aspects (United States Diplomatic and\n1\npasa.\n30),\nwill\nthe fact that negotiations are being actively pursued during the\nproceedings is not, legally, any obstacle to the exercise by the Court of\nits judicial function (Aegean Sea Continental Shelf case,\nI.C.J. Reports 1978, P. 12, para. 29). The Court is unable to accept\neither that there is any requirement of prior exhaustion of regional\nnegotiating processes as a precondition to seising the Court; or that\nthe existence of the Contadora process constitutes in this case an\nobstacle to the examination by the Court of Nicaragua's Application.\nThe Court is therefore unable to declare the Application\ninadmissible on any of the grounds the United States has advanced.\nFindings (paras. 109-111)\nStatus of the provisional measures (para. 112)\nThe Court states that its Order of 10 May 1984 and the provisional\nmeasures indicated therein remain operative until the delivery of the\nfinal judgment in the case.\nOperative provisions of the Court's Judgment\n\"THE COURT,\n(1) (a) finds, by eleven votes to five, that it has\njurisdiction to entertain the Application filed by the Republic of\nNicaragua on 9 April 1984, on the basis of Article 36,\nparagraphs 2 and 5, of the Statute of the Court;\nIN FAVOUR: President Elias; Vice-President Sette-Camara;\nJudges Lachs, Morozov, Nagendra Singh, Ruda, E1-Khani,\nde Lacharrière, Mbaye, Bedjaoui; Judge ad hoc Colliard;\nAGAINST: Judges Mosler, Oda, Ago, Schwebel and\nSir Robert Jennings;\n(b) finds, by fourteen votes to two, that it has\njurisdiction to entertain the Application filed by the Republic of\nNicaragua on 9 April 1984, insofar as that Application relates to\na dispute concerning the interpretation or application of the\nTreaty of Friendship, Commerce and Navigation between the\nUnited States of America and the Republic of Nicaragua signed at\nManagua on 21 January 1956, on the basis of Article XXIV of that\nTreaty;\nIN FAVOUR: President Elias; Vice-President Sette-Camara;\nJudges Lachs, Morozov, Nagendra Singh, Mosler, Oda,\nAgo, E1-Khani, Sir Robert Jennings, de Lacharrière,\nMbaye, Bedjaoui; Judge ad hoc Colliard;\nAGAINST: Judges Ruda and Schwebel;\n(c) finds\n- 12 -\n(c) finds, by fifteen votes to one, that it has\njurisdiction to entertain the case;\nIN FAVOUR: President Flise: Vice-President Sotto-Camere:\nJudges Lachs, Morozov, Nagendra Singh, Ruda, Mosler,\nOda, Ago, E1-Khani, Sir Robert Jennings, de Lacharrière,\nMbaye, Bedjaoui; Judge ad hoc Colliard;\nAGAINST: Judge Schwebel;\n(2) finds, unanimously, that the said Application is\nadmissible.\"\nAnnex to press communiqué 84/39\nSummary of Opinions appended to the\nJudgment U1 the Court\nSeparate Opinion by Judge Nagendra Singh\nWhile Judge Nagendra Singh has voted for the jurisdiction of the Court on\nboth counts, namely under the Optional Clause of Article 36, paragraphs 2\nand 5, of the Statute of the Court, as well as under Article 36,\nparagraph 1, of the Statute on the basis of Article XXIV, paragraph 2, of\nthe Treaty of Friendship, Commerce and Navigation of 21 January 1956, he\nhas felt all along in those proceedings that the jurisdiction of the Court\nresting upon the latter, namely the Treaty, provides a clearer and a firmer\nground than the Jurisdiction based on the Optional Clause of Article 36 (2)\nand (5) of the Statute. The difficulties which confront the Court in\nrelation to the imperfect acceptance of the jurisdiction by Nicaragua and the\nunwilling response from the United States, as revealed by its declaration of\n6 April 1984 intended to bar the Court's jurisdiction in relation to\nany dispute with the Central American States for a period of two years.\nIn addition there is also the question of reciprocity in relation to six\nmonths' notice of termination stipulated in the United States declaration\nof 14 August 1946. On the other hand, the Treaty of 1956 does provide\na clear jurisdictional base, although the field of the jurisdiction is\nrestricted to disputes concerning the interpretation and application of\nthat Treaty. However, the said jurisdiction is not subject to the\nmultilateral treaty reservation of the United States, which is applicable\nto the Court's jurisdiction under the Optional Clause of Article 36(2)\nof the Statute. Another helpful feature of the jurisdiction based on\nthe Treaty of 1956 is that it would help to specify and legally\nchannelise the issues of the dispute. The Parties will have to come to\nthe Court under the Treaty, invoking legal principles and adopting legal\nprocedures which would helpfully place legal limits to the presentation\nof this sprawling dispute, which could otherwise take a non-legal\ncharacter, thus raising the problem of sorting out what is justiciable\nas opposed to non-justiciable matters being brought before the Court.\nHe concludes, therefore, that the jurisdiction of the Court as based on\nthe Treaty is clear, convincing and reliable. Nicaragua will now have\nto spell out clearly and specifically the violations of the Treaty\ninvolving its interpretation and application when the Court proceeds to\nconsider the merits of the case.\nSeparate\n- 2 -\nSeparate Opinion by Judge Ruda\nThe\nfinding that it had jurisdiction to entertain the Application, on the\nbasis of Article 36, paragraphs 2 and 5, of the Statute of the Court,\nconcerns three points: the Treaty of Friendship, Commerce and\nNavigation of 1956 as a basis of the Court's jurisdiction, the\nreservation contained in proviso (c) of the United States declaration\nof 1946, and the conduct of States as a basis for the Court's\njurisdiction.\nIn regard to the first point, Judge Ruda maintains that the\nParties have not fulfilled the conditions set forth in Article XXIV\nof the Treaty, which therefore cannot serve as a basis for the\njurisdiction of the Court.\nIn regard to the second point, he considers that the reservation\ncontained in proviso (c) of the declaration is not applicable in the\npresent instance because there is not only a dispute between the\nUnited States and Nicaragua but also a separate dispute between, on\nthe one hand, Honduras, El Salvador and Costa Rica and, on the other\nhand, Nicaragua.\nIn regard to the third point, Judge Ruda is of the opinion that\nthe conduct of States does not constitute an independent basis for\nthe Court's jurisdiction if there has been no deposit of a declaration\naccepting the optional clause with the Secretary-General of the\nUnited Nations.\nJudge Ruda concurs in the Court's interpretation of Article 36,\nparagraph 5, of the Statute.\nSeparate Opinion by Judge Mosler\nJudge Mosler does not agree with the opinion of the Court that it\nhas jurisdiction on the basis of the Nicaraguan declaration of 1929\nrelating to the jurisdiction of the Permanent Court of International\nJustice. In his view the Court possesses jurisdiction only on the basis\nof the 1956 Treaty of Friendship, Commerce and Navigation between the\nParties.\nSeparate\n- 3 -\nSeparate Opinion by Judge Oda\nJudge Oda concurs in the conclusion of the Court solely because the\ncase can be sustained under the 1956 Treaty between Nicaragua and the\nUnited States. Thus in his view the scope of the case should be strictly\nlimited to any violation of specific provisions of that Treaty.\nHowever, Judge Oda holds the firm view that this case cannot be\nentertained under the Optional Clause of the Statute, for the following\ntwo reasons. First, there is no ground for concluding that Nicaragua\ncan be held to have legal standing in the present proceedings on the\nbasis of the acceptance of the Optional Clause. Secondly, assuming that\nNicaragua has legal standing in the present proceedings, the United States\nby its Shultz letter of 6 April 1984 effectively excluded, before the\nseisin of the case, the type of dispute at issue from its obligation under\nthe Optional Clause in its relation to Nicaragua: when it is sought to\nbring a case before the Court under that clause, a provision fixing a\ncertain duration, such as in the United States declaration, cannot,\nbecause of the rule of reciprocity, be invoked by another party whose\ndeclaration is terminable or amendable at any time.\nSeparate Opinion by Judge Ago\nJudge Ago concurred in the Court's finding that it had jurisdiction\nto entertain the merits of the case because of his conviction that a valid\nlink of jurisdiction between the Parties was present in Article XXIV (2)\nof the Treaty of Friendship, Commerce and Navigation concluded between\nthe United States of America and Nicaragua on 21 January 1956. That link,\nin his view, conferred jurisdiction upon the Court to consider Nicaragua's\nclaims implying breaches of that Treaty by the United States.\nJudge Ago did not reach the same conclusion as regards the broader\njurisdictional link presented by the Judgment as deducible from the facts\nconcerning the acceptance by both Nicaragua and the United States of the\nCourt's compulsory jurisdiction by unilateral declaration, since he\nremained unconvinced of the existence of that link either in fact or in\nlaw.\nSeparate\n- 4 -\nSeparate Opinion by Judge Sir Robert Jennings\nThe Court does not have jurisdiction under Article 36, paragraph 5,\nof its Statute because Nicaragua never became a party to the Statute of\nthe Permanent Court; accordingly, its declaration made under Article 36\nof that Court's Statute cannot be one \"still in force\" in the sense of\nArticle 36, paragraph 5, of the present Court's Statute, because it never\nwas in force. To attempt to support a different view on entries in\nreference books such as the Yearbooks of the Court is wrong in principle\nand unsupported by the facts relied on.\nIn any event the letter of 6 April 1984 from the United States\nSecretary of State bars jurisdiction because the recent practice shows\nthat States have the right to withdraw or alter their optional clause\ndeclarations with immediate effect, at any time before an application\nto the Court based on the declaration.\nSir Robert concurs with the Court's decision in respect of the\nUnited States multilateral treaties reservation; and the 1956 Treaty of\nFriendship, Commerce and Navigation.\nDissenting Opinion by Judge Schwebel\nJudge Schwebel dissented from the judgment of the Court, which he\nfound to be \"in error on the principal questions of jurisdiction\"\ninvolved. However, if the Court were correct in finding that it has\njurisdiction, then the case would be admissible.\nOn the question of whether Nicaragua is party to the Court's\ncompulsory jurisdiction under its Optional Clause, and thus has standing\nto maintain suit against the United States, Judge Schwebel concluded that\nit is not a party and hence lacks standing. Nicaragua has never adhered\nto this Court's compulsory jurisdiction under the Optional Clause. It\nclaimed that it nevertheless was party by reason of its 1929 declaration\naccepting the compulsory jurisdiction of the Permanent Court of\nInternational Justice. If the 1929 declaration had come into force,\nNicaragua would be deemed party to this Court's compulsory jurisdiction\nby operation of Article 36, paragraph 5, of this Court's Statute. But\nNicaragua's 1929 declaration had never come into force. Under the terms\nof Article 36, paragraph 5, accordingly it has no period in which it\nstill runs, since it never begun to run at all. It has no period which\nhas not yet expired since its declaration never was \"inspired\".\nThat this is the correct interpretation of Article 36, paragraph 5,\nis demonstrated not only by the plain meaning of its text, but by the\ndrafting history of the article at the San Francisco Conference and by\nfour cases of this Court. All, clearly and uniformly, construe\nArticle 36, paragraph 5,as referring exclusively to declarations made`\nunder the Statute of the Permanent Court by which States were \"bound\",\ni.e, which were in force.\nThe\n- 5 -\nThe fact that, for almost 40 years, Nicaragua has been listed in the\nYearbook of this Court and elsewhere as bound under the Optional Clause\nis not sufficient to overturn this conclusion or\nestablish Nicaragua's stending. The Yearbooks have always contained or\nreferred to a footnote warning the reader that Nicaragua's adherence to\nthe Optional Clause was in doubt. Moreover, Nicaragua's conduct has been\nequivocal. Not only has it failed to manifest its intent to be bound by\nthis Court's compulsory jurisdiction by depositing a declaration. It\nalso evaded obvious occasion for declaring that it recognized itself to\nbe bound under Article 36, paragraph 5, as in the King of Spain case.\nEven if, however, Nicaragua had standing to maintain suit under the\nOptional Clause, it may not do so against the United States. Assuming\nNicaragua's declaration to be binding, Nicaragua could terminate it at\nany time with immediate effect. By operation of the rule of reciprocity,\nthe United States likewise could terminate its adherence to the Court's\ncompulsory jurisdiction, vis-à-vis Nicaragua, with immediate effect.\nThus, while generally the United States could not terminate or modify its\nadherence to the Court's compulsory jurisdiction - as its notification of\nApril, 1984 purports to do - on less than six months' notice, it could\nvalidly do so in relationship to Nicaragua.\nIn any event, even if the United States could not terminate its\ndeclaration vis-à-vis Nicaragua, by the terms of its multilateral treaty\nreservation to its declaration, the United States is entitled to exclude\nNicaragua's reliance in its Application on four multilateral treaties,\nincluding the United Nations and OAS Charters, unless all other parties\nto the treaties affected by the decision are parties to the case. Those\nparties - as is demonstrated by the pleadings of Nicaragua in the case -\nare Honduras, Costa Rica and El Salvador. Since those States are not\nparties, Nicaraguan reliance on those four treaties should have been\nbarred by the Court. However, the Court - erroneously in\nJudge Schwebel's view - has held that those other States cannot now be\nidentified and appears to have put off the question of application of the\nreservation to the stage of the merits.\nFinally, in Judge Schwebel's view, the Court does not have\njurisdiction over the claims made against the United States by Nicaragua\nin its Application by reason of their being party to a bilateral Treaty\nof Friendship, Commerce and Navigation. Nicaragua had failed to pursue\nthe procedural prerequisites for invoking that treaty as the basis of the\nCourt's jurisdiction. More than that, this purely commercial treaty has\nno plausible relationship to the charges of aggression and intervention\nmade in Nicaragua's Application.\nINTERNAL NSC ROUTING\nJanuary 19, 1985\nJOHN G. ROBERTS:\nAttached State memo\nfwded to you from Robert M.\nKimmitt for your information.\nH. West\nNSC/S\nX3724\nRuberts,J.\nRoberts\nS/S 8501625\nUnited States Department of State\nWashington, D.C. 20520\nJanuary 18, 1985\nUNCLASSIFIED\nMEMORANDUM FOR MR. ROBERT C. MCFARLANE\nTHE WHITE HOUSE\nSUBJECT: Decision to Withdraw from the ICJ Case\nAttached for the use of White House officials is a set of\nselected materials giving the essential arguments for the\nPresident's decision to withdraw from the Nicaragua/ICJ case.\nThese materials include:\n-- The official announcement of US withdrawal from the\ncase,\n-- Policy Themes for Public Briefings, and\n-- Selected Questions and Answers.\nSeparately we are providing copies of additional background\nmaterial.\nNicholas Bmokmlay\nExecutive Secretary\nAttachments\nAs stated\nUNCLASSIFIED\nUS Withdrawal from the Proceedings Initiated\nby Nicaragua in the International Court of Justice\nThe United States has consistently taken the position that\nthe proceedings initiated by Nicaragua in the International\nCourt of Justice are a misuse of the Court for political\npurposes and that the Court lacks jurisdiction and competence\nover such a case. The Court's decision of November 26, 1984,\nfinding that it has jurisdiction, is contrary to law and fact.\nWith great reluctance, the United States has decided not to\nparticipate in further proceedings in this case.\nUS Policy in Central America\nUnited States policy in Central America has been to promote\ndemocracy, reform, and freedom; to support economic\ndevelopment; to help provide a security shield against those --\nlike Nicaragua, Cuba, and the USSR -- who seek to spread\ntyranny by force; and to support dialogue and negotiation both\nwithin and among the countries of the region. In providing a\nsecurity shield, we have acted in the exercise of the inherent\nright of collective self-defense, enshrined in the United\nNations Charter and the Rio Treaty. We have done SO in defense\nof the vital national security interests of the United States\nand in support of the peace and security of the hemisphere.\nNicaragua's efforts to portray the conflict in Central\nAmerica as a bilateral issue between itself and the United\nStates cannot hide the obvious fact that the scope of the\nproblem is far broader. In the security dimension, it involves\na wide range of issues: Nicaragua's huge buildup of Soviet\narms and Cuban advisers, its cross-border attacks and promotion\nof insurgency within various nations of the region, and the\nactivities of indigenous opposition groups within Nicaragua.\nIt is also clear that any effort to stop the fighting in the\nregion would be fruitless unless it were part of a\ncomprehensive approach to political settlement, regional\nsecurity, economic reform and development, and the spread of\ndemocracy and human rights.\nThe Role of the International Court of Justice\nThe conflict in Central America, therefore, is not a narrow\nlegal dispute; it is an inherently political problem that is\nnot appropriate for judicial resolution. The conflict will be\nsolved only by political and diplomatic means -- not through a\njudicial tribunal. The International Court of Justice was\nnever intended to resolve issues of collective security and\nself-defense and is patently unsuited for such a role. Unlike\ndomestic courts, the World Court has jurisdiction only to the\nextent that nation-states have consented to it. When the\n-2-\nUnited States accepted the Court's compulsory jurisdiction in\n1946, it certainly never conceived of such a role for the Court\nin such controversies. Nicaragua's suit against the United\nStates -- which includes an absurd demand for hundreds of\nmillions of dollars in reparations -- is a blatant misuse of\nthe Court for political and propaganda purposes.\nAs one of the foremost supporters of the International\nCourt of Justice, the United States is one of only 44 of 159\nmember states of the United Nations that have accepted the\nCourt's compulsory jurisdiction at all. Furthermore, the vast\nmajority of these 44 states have attached to their acceptance\nreservations that substantially limit its scope. Along with\nthe United Kingdom, the United States is one of only two\npermanent members of the UN Security Council that have accepted\nthat jurisdiction. And of the 16 judges now claiming to sit in\njudgment on the United States in this case, 11 are from\ncountries that do not accept the Court's compulsory\njurisdiction.\nFew if any other countries in the world would have appeared\nat all in a case such as this which they considered to be\nimproperly brought. Nevertheless, out of its traditional\nrespect for the rule of law, the United States has participated\nfully in the Court's proceedings thus far, to present its view\nthat the Court does not have jurisdiction or competence in this\ncase.\nThe Decision of November 26\nOn November 26, 1984, the Court decided -- in spite of the\noverwhelming evidence before it -- that it does have\njurisdiction over Nicaragua's claims and that it will proceed\nto a full hearing on the merits of these claims.\nThis decision is erroneous as a matter of law and is based\non a misreading and distortion of the evidence and precedent:\n--The Court chose to ignore the irrefutable evidence that\nNicaragua itself never accepted the Court's compulsory\njurisdiction. Allowing Nicaragua to sue where it could not be\nsued was a violation of the Court's basic principle of\nreciprocity, which necessarily underlies our own consent to the\nCourt's compulsory jurisdiction. On this pivotal issue in the\nNovember 26 decision -- decided by a vote of 11-5 -- dissenting\njudges called the Court's judgment \"untenable\" and\n\"astonishing\" and described the US position as \"beyond doubt.\nWe agree.\n--El Salvador sought to participate in the suit to argue that\nthe Court was not the appropriate forum to address the Central\n- 3 -\nAmerican conflict. El Salvador declared that it was under\narmed attack by Nicaragua and, in exercise of its inherent\nright of self-defense, had requested assistance from the United\nStates. The Court rejected El Salvador's application summarily\n-- without giving reasons and without even granting El Salvador\na hearing, in violation of El Salvador's right and in disregard\nof the Court's own rules.\nThe Court's decision is a marked departure from its past,\ncautious approach to jurisdictional questions. The haste with\nwhich the Court proceeded to a judgment on these issues --\nnoted in several of the separate and dissenting opinions --\nonly adds to the impression that the Court is determined to\nfind in favor of Nicaragua in this case.\nFor these reasons, we are forced to conclude that our\ncontinued participation in this case could not be justified.\nIn addition, much of the evidence that would establish\nNicaragua's aggression against its neighbors is of a highly\nsensitive intelligence character. We will not risk US national\nsecurity by presenting such sensitive material in public or\nbefore a Court that includes two judges from Warsaw Pact\nnations. This problem only confirms the reality that such\nissues are not suited for the International Court of Justice.\nLonger-Term Implications of the Court's Decision\nThe Court's decision raises a basic issue of sovereignty.\nThe right of a state to defend itself or to participate in\ncollective self-defense against aggression is an inherent\nsovereign right that cannot be compromised by an inappropriate\nproceeding before the World Court.\nWe are profoundly concerned also about the long-term\nimplications for the Court itself. The decision of November 26\nrepresents an overreaching of the Court's limits, a departure\nfrom its tradition of judicial restraint, and a risky venture\ninto treacherous political waters. We have seen in the United\nNations, in the last decade or more, how international\norganizations have become more and more politicized against the\ninterests of the Western democracies. It would be a tragedy if\nthese trends were to infect the International Court of\nJustice. We hope this will not happen, because a politicized\nCourt would mean the end of the Court as a serious, respected\ninstitution. Such a result would do grievous harm to the goal\nof the rule of law.\n-4-\nThese implications compel us to clarify our 1946 acceptance\nof the Court's compulsory jurisdiction. Important premises on\nwhich our initial acceptance was based now appear to be in\ndoubt in this type of case. We are therefore taking steps to\nclarify our acceptance of the Court's compulsory jurisdiction\nin order to make explicit what we have understood from the\nbeginning, namely that cases of this nature are not proper for\nadjudication by the Court.\nWe will continue to support the International Court of\nJustice where it acts within its competence -- as, for example,\nwhere specific disputes are brought before it by special\nagreement of the parties. One such example is the recent case\nbetween the United States and Canada before a special\nfive-member Chamber of the Court to delimit the maritime\nboundary in the Gulf of Maine area. Nonetheless, because of\nour commitment to the rule of law, we must declare our firm\nconviction that the course on which the Court may now be\nembarked could do enormous harm to it as an institution and to\nthe cause of international law.\nPolicy Themes for Public Briefings\nI\nThe Central American conflict is clearly a broad\nconflict with political, social, economic, and\nsecurity dimensions. It will only be resolved by\npolitical and diplomatic means, not by a judicial\ntribunal.\n:\nIt is also not a bilateral dispute between the United\nStates and Nicaragua. Other countries of Central\nAmerica are victims of Nicaraguan aggression.\n--\nThis suit is a cynical misuse of the ICJ by Nicaragua\nfor political and propaganda purposes. A\nMarxist-Leninist regime, whose ideology bears nothing\nbut contempt for international law, is trying here to\nuse our own respect for law against us, exploiting the\nlegal process as a political weapon against the\ndemocracies which have always been the main bulwark of\ninternational law.\n:\nUS policy in Central America is addressing all the\ndimensions of the problem -- through diplomacy\n(support for Contadora, Shlaudeman-Tinoco talks) ;\neconomic aid (Jackson Plan) ; support for democracy\n(free elections, human rights) ; and providing a\nsecurity shield (security assistance, training) in\naccordance with the inherent right of collective\nself-defense.\n--\nOur main grievance is with Nicaragua, which is\ncommitting aggression against its neighbors. We are\nsorry the Court let itself be misused by Nicaragua.\n--\nA basic issue of sovereignty is involved. The World\nCourt can function only with the consent of sovereign\nstates. There was no US consent in this case.\n--\nThe President and the Congress, not the World Court,\nwill continue to decide when our national interest\nrequires the United States to act in exercise of the\ninherent right of individual or collective\nself-defense.\n- 2 -\nThe Court was unwise to venture, for the first time,\ninto such treacherous political waters as the Central\nAmerican conflict. Such a course is very risky for\nthe Court. Our own Supreme Court stays out of highly\npolitical cases; the ICJ has even more reason to\nexercise such restraint, since its role and authority\nwithin the world community are less secure and more\nnarrowly defined and since, unlike a US court, the ICJ\nis dependent on the consent of the parties.\nThe Court's conduct in this case -- its departure from\nits usual cautious treatment of jurisdictional\nquestions; its refusal of El Salvador's application to\nintervene; and other aspects -- also raise questions\nabout whether the United States could get a fair\nhearing in this case. The Court seemed predisposed to\ntake the case and to find for Nicaragua.\nI\nWe have seen in the United Nations in recent years how\ninternational organizations have become more and more\npoliticized against the interests of the Western\ndemocracies. It would be tragic if these trends were\nto infect the World Court. We hope this will not\nhappen, because a politicized Court would mean the end\nof the Court as a serious, respected institution.\nW0240S\nQ. Isn't this inconsistent with traditional American respect\nfor international law?\nA. Not at all. We continue to respect the World Court when it\nacts within its competence. This lawsuit by Nicaragua is a\nmisuse of the Court for political and propaganda purposes.\nWe are concerned, in fact, that Nicaragua's cynical action\n-- and the Court's unwarranted assertion of jurisdiction --\ncould themselves do serious harm to the Court and to the\ncause of international law.\nQ. Isn't this an admission that we were likely to lose?\nA. We are withdrawing from the case because we believe the\nCourt has no authority or competence over cases involving\nsuch issues of collective security and self-defense. The\nCourt's handling of the case to date also raises serious\nquestions about whether we are likely to get a fair hearing\nin this case.\na:\nWhat happens if the Court proceeds with the case without\nus, decides against us in the end, and assesses damages\nagainst us?\nA. That's hypothetical. We will face those issues if and when\nthey happen.\nQ. Doesn't this show that the U.S. prefers a military solution\nrather than a peaceful solution in Central America?\nA. No. Our policy in Central America is to promote democracy,\neconomic progress, and a negotiated solution to the\nconflict. The conflict is a broad and complicated one\ninvolving a number of countries and many issues. It cannot\nbe solved by a judicial tribunal, but only by political and\ndiplomatic means such as the Contadora process, which we\nsupport. US military assistance provides a shield behind\nwhich other elements of our policy (political, economic,\nand diplomatic) can advance.\nQ. Doesn't this make the U.S. look like an outlaw nation --\nfirst mining Nicaragua's harbors illegally and then showing\ncontempt for the World Court?\nA.\nThe central problem in Central America is Nicaragua --\nits militarism, its subversion of its neighbors, its\nalliance with Cuba and the USSR, and its totalitarian\nsystem. Nicaragua's lawsuit is a propaganda exercise and a\ndiversion from the main issues.\nOur policy in Central America is to promote democracy,\neconomic progress, and a negotiated solution. That's the\nright policy. This legal proceeding cannot contribute to a\nsolution.\n- 2 -\nimplementing regulations by the Secretary of the Treasury,\nwhich would make the sanctions effective as of May 7. The\ndelay will avoid U.S. passengers being stranded or hardship\ncaused to U.S. shippers and importers who have transportation\narrangements in place before the sanctions are announced. A\ndraft message to Congress, designed to meet the reporting\nrequirements of IEEPA, is at Tab 2.\nOur existing FCN treaty with Nicaragua (like many similar\ntreaties with other countries) gives the International Court of\nJustice jurisdiction over disputes. under the Treaty. The\nTreaty expressly prohibits restrictions on imports and exports\nand guarantees free access to ports. Although the treaty does\nnot preclude a party from \"the application of measures\nnecessary to protect its essential security interests, this\nwould not bar the Court's jurisdiction. The issue would have\nto be argued in proceedings on the merits.\nThus, we could well face a new Nicaraguan ICJ case to which\nwe would have no obvious jurisdictional defenses and would\ntherefore need to defend on the merits. Another international\nlegal risk is the possibility that Nicaragua might use the\nproposed sanctions as grounds for new allegations in the case\nalready pending before the ICJ. If successful, this would\nundercut our position denying ICJ jurisdiction.\nAlso, adoption of a trade embargo is likely to be\nchallenged by Nicaragua under the GATT.\nWe intend to initiate a diplomatic campaign to gain\nunderstanding for our actions by friendly governments in Latin\nAmerica and Western Europe, although many will avoid taking\nsides. We would also ask the Central American countries to\ntake symbolic, supportive actions. We do not anticipate that\nEuropean or other Latin American nations will announce\nsanctions against Nicaragua and some could support Nicaragua\neconomically. The timing of Ortega's current mission to Noscow\nmakes Soviet economic benefits likely.\nWe also have considered other sanctions, such as a default\ndeclaration on official debt, a freeze of official Nicaraguan\nassets, travel restrictions, closure of the GRN trade office\nand a broader ban on all transactions. Each has important\nfactual, legal or policy complications requiring further\nstudy. Accordingly, such actions, while being studied\nactively, are not among the measures recommended for immediate\nannouncement.\nThere was a strong consensus also that we should not now\nrecall the U.S. Ambassador in Managua or take other steps to\nSECRET\n8513057\nUnited States Department of State\nWashington. D.C. 20520\nDRAFT\nSECRET\nMEMORANDUM FOR MR. ROBERT C. MCFARLANE\nTHE WHITE HOUSE\nSUBJECT:\nEconomic Sanctions Against Nicaragua\nWe have reviewed carefully with all concerned agencies the\npossible range of actions that should be taken now vis-a-vis\nNicaragua. There is agreement that the economic sanctions\ndescribed below should be announced promptly. Under current\ncircumstances, such sanctions offer the most effective way to\nmaintain pressure on the Sandinistas, to send a strong signal\nof resolve to the Soviets and to reassure the Nicaraguan\ndemocratic opposition and our allies in Central America of U.S.\ndetermination to continue to oppose firmly communist expansion\nin the region.\nWe recommend the following immediate steps:\n--\nU.S. trade embargo. We propose that you declare a\nnational emergency under the International\nEmergency Economic Powers Act (IEEPA) and ban\nimports into the U.S. of all goods and services\nfrom Nicaragua to the U.S. and all exports of goods\nfrom the U.S. to Nicaragua. An exception to the\nembargo will allow continued exports to the\norganized democratic resistance in Nicaragua.\n(Certain humanitarian exports to Nicaragua are also\npermitted under the statute.)\nNLS F05-139/1 419453\nBY NARA, DATE 6/22/06\nTermination of U.S.-Nicaraguan FCN treaty. We\nwould deliver to the Government of Nicaragua a\nformal notice of termination of the 1956\nU.S.-Nicaragua Treaty of Friendship, Commerce and\nNavigation. Termination would occur one year from\nnotification in accordance with the terms of the\ntreaty.\n--\nTermination of Nicaraguan air and maritime\nservice. We would suspend scheduled service to the\nUnited States by the Nicaraguan national airline\nand close our ports to all Nicaraguan flag vessels.\nAt Tab 1 is a draft Executive Order necessary to give\neffect to the trade embargo and to authorize the termination of\nair and maritime service. This draft Order authorizes\nSECRET\nDECL: OADR\nSECRET\n- 3 -\ndowngrade diplomatic relations. It is important to our future\nCongressional efforts that our actions not be interpreted as a\nsign of unwillingness to maintain diplomatic channels of\ncommunication. Withdrawal of our Ambassador under current\ncircumstances would send the wrong signal.\nOur overall public approach is one of firmness,\nmaintaining strong pressure on the Nicaraguan government in\nsupport of a peaceful political settlement. A draft statement\non these measures is attached at Tab 3. It is designed to\nreassure our friends about our steadfastness while making the\nstrongest possible case for a renewal of official U.S. support\nfor the democratic resistance in Nicaragua. The central\nmessage is one of determination to continue our pressures\nagainst Nicaragua and a reiteration of the President's April 4\npeace initiative which called. for a Sandinista ceasefire and\ndialogue with the unified opposition.\nWe are prepared to initiate promptly Congressional\nconsultations on April 30 if the President approves these\nproposals. Given the extensive support for economic sanctions\nvoiced in the debate last week, by our supporters and opponents\nalike, it will be difficult for them to oppose these actions.\nThey are more likely to view them as a further sign of our\ndetermination to return soon on the question of support for the\ndemocratic resistance.\nIt is important to regain the initiative on Nicaragua and\nthere is unanimity among both the economic and national\nsecurity agencies that the package of actions proposed here,\ndespite some problems, will advance U.S. interests and should\nbe undertaken promptly.\nNicholas Platt\nExecutive Secretary\nAttachments:\nTab 1 - Draft Executive Order\nTab 2 - Draft Congressional Message\nTab 3 - Draft Presidential Statement\nSECRET\nfile\nNacaragera\nSYSTEM II\nNATIONAL SECURITY COUNCIL\n90468\nWASHINGTON, D.C. 20506\nSECRET\nATTACHMENT\nApril 30, 1985\nMEMORANDUM FOR DICK HAUSER\nRALPH TARR\nRICHARD WILLARD\nMARGERY WAXMAN\nRUSS MUNK\nJOHN COONEY\nSUBJECT:\nState Paper on Nicaragua Sanctions\nAttached is an advance copy of State's Nicaragua\nsanctions paper. It will be proposed that the\nPresident sign the Executive Order prior to\ndeparture for Europe at 9:00pm this evening.\nWhile OMB will lead the executive order clearing\nprocess, I thought it important to get each of you\nan advance copy as soon as possible.\nBob Kinnutt\nRobert M. Kimmitt\nExecutive Secretary\nand\nGeneral Counsel\nSECRET\nATTACHMENT\nEXECUTIVE ORDER\n-\n-\n-\n-\nPROHIBITING TRADE AND CERTAIN OTHER\nTRANSACTIONS INVOLVING NICARAGUA\nPursuant to the authority vested in me as President by the\nConstitution and statutes of the United States, including the\nInternational Emergency Economic Powers Act (50 U.S.C. 1701 et\nseq.), the National Emergencies Act (50 U.S.C. 1601 et seq.),\nand Section 301 of Title 3 of the United States Code, I, Ronald\nReagan, President of the United States, find that the policies\nand actions of the Government of Nicaragua constitute an\nunusual and extraordinary threat to the national security and\nforeign policy of the United States and hereby declare a\nnational emergency to deal with that threat.\nI hereby prohibit all imports of goods and services of\nNicaraguan origin; all exports of goods to or destined for\nNicaragua, except those destined for the organized democratic\nresistance, and transactions relating thereto.\nI hereby prohibit Nicaraguan air carriers from engaging in\nscheduled service to or from points in the United States, and\ntransactions relating thereto.\nIn addition, I hereby prohibit vessels of Nicaraguan\nregistry from entering into United States ports, and\ntransactions relating thereto.\nThe Secretary of the Treasury is delegated and authorized\nto employ all powers granted to me by the International\n- 2 -\nEmergency Economic Powers Act to carry out the purposes of this\norder.\nThis order is effective as of May 7, 1985 and shall be\ntransmitted to the Congress and published in the Federal\nRegister.\nThe White House\nApril 30, 1985\n- 3 -\nWang I.D. 1910X\nTO THE CONGRESS OF THE UNITED STATES:\nPursuant to section 204 (b) of the International Emergency\nEconomic Powers Act, 50 U.S.C. 1703, I hereby report to the\nCongress that I have today exercised my statutory authority to\ndeclare a national emergency and to prohibit:\n(1) all imports into the United States of goods and services of\nNicaraguan origin; (2) all exports of goods to or destined for\nNicaragua except those destined for the organized democratic\nresistence; (3) Nicaraguan air carriers from engaging in\nscheduled service to or from points in the United States; and\n(4) vessels of Nicaraguan registry from entering into United\nStates ports.\nI am enclosing a copy of the Executive Order that I have\nissued today making this declaration and exercising these\nauthorities.\n1. I have authorized these steps in response to the emergency\nsituation created by the Nicaraguan Government's aggressive\nactivities in Central America. Nicaragua's continuing efforts\nto subvert its neighbors, its rapid and destabilizing military\nbuildup, its close military and security ties to Cuba and the\nSoviet Union and its imposition of Communist totalitarian\ninternal rule have been described fully in the past several\nweeks. The current visit by Nicaraguan President Ortega to\nMoscow underscores this disturbing trend. The recent rejection\nby Nicaragua of my peace initiative, viewed in the light of the\n- 2 -\nconstantly rising pressure that Nicaragua's military buildup\nplaces on the democratic nations of the region, makes clear the\nurgent threat that Nicaragua's activities represent to the\nsecurity of the region and, therefore, to the security and\nforeign policy of the United States. The activities of\nNicaragua, supported by the Soviet Union and its allies, are\nincompatible with normal commercial relations.\n2. In taking these steps, I note that during this month's\ndebate on U.S. policy toward Nicaragua, many Members of\nCongress, both supporters and opponents of my proposals, called\nfor the early application of economic sanctions.\n3. I have long made clear that changes in Sandinista behavior\nmust occur if peace is to be achieved in Central America. At\nthis time, I again call on the Government of Nicaragua:\nO\nto halt its export of armed insurrecton, terrorism and\nsubversion in neighboring countries;\nO\nto end its extensive military relationship with Cuba\nand the Soviet Bloc and remove their military and\nsecurity personnel;\nto stop its massive arms buildup and help restore the\nregional military balance; and\nto respect, in law and in practice, democratic\npluralism and observance of full political and human\nrights in Nicaragua.\n- 3 -\n4. U.S. application of these sanctions should be seen by the\nGovenment of Nicaragua, and by those who abet it, as\nunmistakable evidence that we take seriously the obligation to\nprotect our security interests and those of our friends. I ask\nthe Government of Nicaragua to address seriously the concerns\nof its neighbors and,its own opposition and to honor its solemn\ncommitments to non-interference, non-alignment, respect for\ndemocracy, and peace. Failure to do so will only diminish the\nprospects for a peaceful settlement in Central America.\nDRAFT WHITE HOUSE ANNOUNCEMENT\nEconomic Sanctions Against Nicaragua\nThe President today ordered the imposition by the United\nStates of economic sanctions against the Government of\nNicaragua under authority granted by the International\nEmergency Economic Powers Act and other authorities. The\nsanctions include, a total embargo on trade with Nicaragua,\nnotification of U.S. intent to terminate its Treaty of\nFriendship, Commerce and Navigation with Nicaragua, and the\nsuspension of service to the United States by the Nicaraguan\nnational airline and Nicaraguan flag vessels. A report on\nthese actions is being sent today to the Congress.\nThe President authorized these steps in response to the\nemergency situation created by the Nicaraguan Government's\naggressive activities in Central America. Nicaragua's\ncontinuing efforts to subvert its neighbors, its rapid and\ndestabilizing military buildup, its close military and security\nties to Cuba and the Soviet Union and its imposition of\nCommunist totalitarian internal rule has been described fully\nin the past several weeks. The current visit by Nicaraguan\nPresident Ortega to Moscow underscores this disturbing trend.\nThe recent rejection by Nicaragua of the President's peace\ninitiative, viewed in the light of the constantly rising\npressure that Nicaragua's military buildup places on the\ndemocratic nations of the region, makes clear the urgent threat\nthat Nicaragua's activities represent to the security of the\nregion, and, therefore, to the security and foreign policy of\nthe United States. The activities of Nicaragua, supported by\nthe Soviet Union and its allies, are incompatible with normal\ncommerical relations.\nDuring this month's debate on U.S. policy toward\nNicaragua, many Members of Congress, both supporters and\nopponents of the Administration's proposals, called for the\nearly application of economic sanctions.\nThe Administration has long made clear that changes in\nSandinista behavior must occur if peace is to be achieved in\nCentral America. In making this announcement, the President\nagain calls on the Government of Nicaragua:\nO\nto halt to its export of armed insurrection,\nterrorism and subversion in neighboring countries;\nto end its extensive military relationship with Cuba\nand the Soviet Bloc and remove their military\npersonnel;\nto stop its massive arms buildup and help restore the\nregional military balance; and\nto respect, in law and in practice, democratic\npluralism and observance of full political and human\nrights in Nicaragua.\nThe Administration has urged the Government of Nicaragua\nrepeatedly to respect its 1979 commitments to the OAS and more\nrecently to the 1983 Contadora Document of Objectives, whose\nterms closely parallel our own basic objectives. Heretofore\nthe Sandinistas have ignored or rejected all such appeals. The\nAmerican Embassy in Managua renewed again today the President's\nproposal for dialogue to the Government of Nicaragua and\nreiterated his firm intention to pursue U.S. interests and\nnational objectives in Central America.\nThe President remains convinced that dialogue between the\nGovernment of Nicaragua and the Nicaraguan opposition, as\ncalled for by the unified opposition on Marcn 1 and in the\nPresident's April 4 peace proposal, could make a major\ncontribution to resolution of conflict in the region. The\nPresident continues to believe that direct pressure represents\nthe only effective means of moderating Nicaraguan behavior and\nto that end is prepared to use the means available to him. He\nurges all members of the Congress to support future requests\nfor assistance to the Nicaraguan democratic resistance.\nIn the meantime, U.S. application of sanctions should be\nseen by the Government of Nicaragua, and by those who abet it,\nas unmistakable evidence that we take seriously the obligation\nto protect our security interests and those of our friends.\nThe President calls again on the Government of Nicaragua to\naddress seriously the concerns of its neighbors and its own\nopposition and to honor its solemn commitments to\nnon-interference, non-alignment, respect for democracy, and\npeace. Failure to do so will only diminish the\nprospects for a peaceful settlement in Central America.\nDoc #2626C\nTHE WHITE HOUSE\nWASHINGTON\nMay 15, 1985\nDear Mr. Snow:\nThank you for your letter of May 4 to Counsel to the President\nFred F. Fielding. That letter requested certain documents\nand information on the declaration of a national emergency\nwith respect to Nicaragua.\nI am enclosing a copy of the Executive Order declaring a\nnational emergency with respect to Nicaragua, and imposing\neconomic sanctions on that country. Also enclosed are the\nreport to Congress on the declaration, and a statement by\nthe Principal Deputy Press Secretary explaining the action\ntaken. Finally, I have copied from the United States Code\nAnnotated the provisions of the statutes cited in the\nExecutive Order, including the International Emergency\nEconomic Powers Act and the National Emergencies Act. You\nshould contact the Department of State directly for the\ninformation described in the penultimate sentence of your\nletter.\nSincerely,\nJohn G. Roberts\nAssociate Counsel to the President\nMr. Dan Snow\nBass Research International\nP.O. Box 5481\nKingwood, TX 77325\n314315\nDg\nID #\nCU\nC0114\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\no - OUTGOING\nH - INTERNAL\n8c\nI # INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nDan snow\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject: Request for Information\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\non\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nCHALL\nORIGINATOR 85,05,09\n/\n/\nReferral Note:\nCUAT 17\nR\n085105110\nor S 85/05/20\nReferral Note:\n/\n/\n/ /\n-\nReferral Note:\n/\n/\n/\n/\n-\nReferral Note:\n/\n/\n/\n/\n-\nReferral Note:\nACTION CODES\nDISPOSITION CODES\nA Appropriate Action\nI . Into Copy Only/No Action Necessary\nA. Answered\nC Completed\nC Comment/Recommendation\nR Direct Reply w/Copy\nB - - Non/Special Referral\nS Suspended\nD Draft Response\nS. For Signature\nF Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE: A\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\n314315 cu\nBass Research International\n713 / 358-2262 /P.O. BOX 5481, KINGWOOD, TEXAS 77325\n5/4/85\nMr. Fred Fielding\nCouncil to the President\nWhite House\nWashington, D.C.\nDear Mr. Fielding:\nI respectfully request that you send me a copy of the report regarding\nthe National emergency with Nicaragua. If possible, please include\na copy of the Presidents consultation with Congress (transcript).\nIf it is not to much trouble please forward to me a copy of the IEEPA\nor whatever regulation the President is using regarding peanalties,\netc.\nIf possible, would you please have someone at the White House send\nme a copy of the State Departments statement regarding Americans\ndesiring to do business in Central America to do it thru foreign\nsubsidaries of U.S. Companies (transcript).\nThank you for your assistance on this matter.\nSincerely,\nDon Shorm\nDan Snow"
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