THE MINING OF NICARAGUAN PORTS AND HARBORS, HEARING AND MARKUP BEFORE THE COMMITTEE ON FOREIGN AFFAIRS, HOUSE OF REPRESENTATIVES NINETY-EIGHTH CONGRESS SECOND SESSION ON H. CON. RES. 290

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP05C01629R000300670001-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 62
• Document Creation Date: December 22, 2016
• Document Release Date: September 26, 2011
• Sequence Number: 1
• Publication Date: April 11, 1984
• Content Type: REPORT

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THE MINING OF NICARAGUAN PORTS
AND HARBORS
HEARING AND MARKUP
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
NINETY-EIGHTH CONGRESS
H. Con. Res. 290
STAT
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COMMITTEE ON FOREIGN AFFAIRS
DANTE B. FASCELL, Florida, Chairman
LEE H. HAMILTON, Indiana
GUS YATRON, Pennsylvania
STEPHEN J. SOLARZ, New York
DON BONKER, Washington
GERRY E. STUDDS, Massachusetts
ANDY IRELAND, Florida
DAN MICA, Florida
MICHAEL D. BARNES, Maryland
HOWARD WOLPE, Michigan
GEO. W. CROCKETT, JR., Michigan
SAM GEJDENSON, Connecticut
MERVYN M. DYMALLY, California
TOM LANTOS, California
PETER H. KOSTMAYER, Pennsylvania
ROBERT G. TORRICELLI, New Jersey
LAWRENCE J. SMITH, Florida
HOWARD L. BERMAN, California
HARRY M. REID, Nevada
MEL LEVINE, California
EDWARD F. FEIGHAN, Ohio
TED WEISS, New York
GARY L. ACKERMAN, New York
ROBERT GARCIA, New York
WILLIAM S. BROOMFIELD, Michigan
LARRY WINN, JR., Kansas
BENJAMIN A. GILMAN, New York
ROBERT J. LAGOMARSINO, California
JOEL PRITCHARD, Washington
JIM LEACH, Iowa
TOBY ROTH, Wisconsin
OLYMPIA J. SNOWE, Maine
HENRY J. HYDE, Illinois
GERALD B. H. SOLOMON, New York
DOUGLAS K. BEREUTER, Nebraska
MARK D. SILJANDER, Michigan
ED ZSCHAU, California
JOHN J. BRADY, Jr., Chief of Staff
ROBERT K. BOYER, Senior Staff Consultant
BERNADERTE M. JENKINS, Staff Assistant
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CONTENTS
Kenneth W. Dam, Deputy Secretary of State ............................................................
MATERIAL SUBMITTED FOR THE RECORD
Excerpt from a declaration by the Contadora group on Aril 9 1984
Page
3
P
Caracas, Venezuela .................. m
................................................................. 2
..................
Statement in response to question by Hon. William S. Broomfield, .regarding
the jurisdictional question of whether El Salvador, Honduras, and Costa
Rica will get involved in filing petitions against Nicaragua in the Interna-
tional Court of Justice ....................... ............................................. ....... .
Statement by the administration in response to question by Hon. Gerry E.
Studds, regarding the United States having a contingency plan for the
introduction of U.S. forces into Nicaragua or anywhere in Central America. 28
APPENDIXES
1. Statement submitted by the Department of State regarding the notification
to the Secretary General of the United Nations of a temporary and limited
modification of the scope of the U.S. acceptance of the compulsory jurisdic-
tion of the International Court of Justice in the Hague ...................................... 53
2. Text of H. Con. Res. 290 ............................................................................................. 59
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THE MINING OF NICARAGUAN PORTS AND
HARBORS
WEDNESDAY, APRIL 11, 1984
HOUSE OF REPRESENTATIVES,
COMMITTEE ON FOREIGN AFFAIRS,
Washington, DC.
The committee met at 10:12 a.m., in room 2172, Rayburn House
Office Building, Hon. Dante B. Fascell (chairman) presiding.
Chairman FASCELL. The committee will come to order.
We meet this morning to hear Hon. Kenneth W. Dam, Deputy
Secretary of State, with regard to issues in Central America that
are of current interest regarding the World Court matter, the
mining of Nicaraguan ports, and other related policy issues that
are of great moment of the Congress and the American people.
Mr. Secretary, we are very pleased to have you here. Since this is
a matter that is within the jurisdiction of the Western Hemisphere
Affairs Subcommittee, I am asking the distinguished gentleman
from Maryland, Mr. Barnes, who is chairman of that subcommittee
to take the chair. Mr. Barnes.
Mr. BARNES. Thank you, Mr. Chairman. I have a brief statement
as well. I must say that I am concerned that the recent actions of
the administration are dragging the good name of the United
States through the mud a little bit.
The President has, as was stated by the chairman of the Senate
Intelligence Committee in his now public letter to the Director of
the Central Intelligence Agency, committed "an act of war" against
Nicaragua. And as the chairman of the Senate Intelligence Com-
mittee indicated, he did so without consulting the Congress, and
certainly without consulting the American people.
He has, as was stated by the Prime Minister of Great Britain
yesterday, endangered friendly and neutral shipping with complete
disregard for what the United States has always held to be cher-
ished principles of the freedom of the seas. We fought for those
principles throughout our Nation's entire history.
The Security Council of the United Nations has voted to con-
demn this action. The United States had to veto that resolution.
Not one nation, not even our closest allies, voted with us.
The U.S. Senate last night voted 84 to 12 to condemn this action.
The President's response quoted in this morning's newspapers, I
think frankly, showed his contempt for the opinion of the interna-
tional community for the views of the Congress, for the views of
the American people.
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The President was quoted this morning as saying, "If it is not
binding, I can live with it." In other words, never mind what the
Congress votes, never mind what the international community be-
lieves, I am going to do whatever I want to do.
Well, now the President has compounded our national embar-
rassment by asserting the right to remove this aggression from the
jurisdiction of the International Court of Justice after the aggres-
sion has already been perpetrated.
To give this rather bizarre maneuver a veneer of legality, we
managed to file our reservation hours before Nicaragua filed its
case with the Court. But that does nothing to change the impres-
sion of international opinion that the United States simply cannot
defend its actions against Nicaragua before responsible internation-
al bodies.
Unfortunately, in my view, that impression is correct, and obvi-
ously that is the view of the chairman of the Senate Intelligence
Committee.
In a justification which is as bizarre as the act itself, the State
Department is now asserting that it sought to remove these mat-
ters from the jurisdiction of the Court, because by bringing them
before the Court, Nicaragua was undercutting the Contadora proc-
ess.
I do not know how George Orwell knew that Ronald Reagan was
going to be President in 1984, but that justification is truly worthy
of Orwell's "Ministry of Truth," whose responsibility, as you know,
if you have recently reread the book, is to rewrite history.
First, Nicaragua has a recognized right under the U.N. charter
to bring acts of aggression committed against it before the Security
Council, before the World Court. Second, you can talk to anyone in-
volved in the Contadora process, and they will tell you privately
that the worst obstacle to the success of that process at the
moment is the United States, not Nicaragua.
Third, our staff was told on Monday in a briefing that we did not
even consult with the Contadora countries, that is the administra-
tion did not consult with the Contadora countries before filing its
reservation with the Court.
Well, this morning I received a declaration of the four Contadora
countries. It has not yet been translated into English, but we have
done in the subcommittee a quick translation of it. And I am not
going to burden our colleagues with it, but it will be available for
Members later.
And I can assure you that it is an expression of the Contadora
countries, of their displeasure with the actions of the United
States.
I would ask that we place the entire statement of the Contadora
Foreign Ministers in the record, if there is no objection to that at
this point.
[The document referred to follows:]
(The ministers) warned that in recent weeks the regional panorama has
shown a worsening situation. The actions of irregular forces have been intensified,
receiving supplies and support from communication centers located in territory of
neighboring countries, and oriented at the destabilization of governments in the
area. Sophisticated armaments have been introduced, new military methods and
new forms of attack have also been introduced. Operations are being carried out to
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mine ports, which affect the economy, disrupt commerce and work against freedom
of navigation.
At the same time, (the ministers) expressed their concern over the increasing
presence of foreign troops and advisors, the increase of the arms race, the prolifera-
tion of military actions and maneuvers, all of which contribute to intensifying ten-
sions and deepening the existing mistrust.
Therefore, it is indispensable that the countries with links and interests in the
region, demonstrate with concrete actions the support they have expressed for Con-
tadora, underlining once again that a conflict of major proportions would have seri-
ous repercussions in the countries in the region and would affect the entire conti-
nent. . .
Mr. BARNES. Mr. Secretary, the President keeps saying in his
speeches that he has restored respect for the United States in the
world. Well, I travel as you do, a great deal, particularly in the
Western Hemisphere. And I have not seen that. I have seen con-
cern. I have seen alarm. In some areas, I have seen fear. But I am
not seeing increased respect.
I am sorry that the President apparently equates fear with re-
spect. Latin Americans are extremely worried that our policy in
Central America is out of control at this point. They are worried
that we are ignoring the real problems of the hemisphere because
of our fixation with Nicaragua.
They are worried that our once proud support for human rights
and for democracy is being reduced at this stage to the level of
rhetoric, while we undertake in substance acts of aggression.
Mr. Secretary, when a President and when an administration go
astray as this administration very clearly has, it is the responsibil-
ity of the Congress to reassert respect for traditional American
values in the conduct of American foreign policy.
The President can give all of the speeches that he wants railing
against the Congress, but we have a responsibility to continue to
carry out our functions until we succeed in those efforts.
I would call upon the ranking Republicans, the ranking minority
member, the distinguished gentleman from Michigan, for any open-
ing comments that he might have on this point.
Mr. BROOMFIELD. Well, Mr. Chairman, I did not have any pre-
pared statement to make. I thought that we were here to hear
from Ken Dam to give us an update on what is happening in El
Salvador and Central America, and not a political statement. I
think that one of the problems that we have today is too much poli-
tics. We ought to get down to the facts. And I am anxious to hear
what the Secretary has to say.
Mr. BARNES. I thank the gentleman. I would just note that the
Senate action last night was extremely bipartisan. There is nothing
particularly partisan about the concerns that have been raised
about this action. The majority of Members of both parties in the
Senate led by the Senate leadership last night voted to condemn
the action of the administration in this particular instance.
Mr. Secretary, we welcome you to the committee, and we look
forward to hearing your comments.
STATEMENT OF HON. KENNETH W. DAM, DEPUTY SECRETARY OF
STATE
Mr. DAM. Thank you very much, Mr. Chairman. I would like to
devote my comments to the question involving the International
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Court of Justice, which as I understand it, is the principal subject
here this morning.
Mr. BROOMFIELD. Mr. Chairman, could the speaker be closer to
the microphone.
Mr. BARNES. Yes.
Mr. DAM. We will try to remedy that. I will take some of this
stuff out and put it over here, so I can get closer to the micro-
phone.
I was saying that I would like to devote my brief comments to
the question involving the International Court of Justice, which, as
I understood it, when I was invited here was the principal subject
for the hearing. Of course, I will be available for questions.
And I want to address the question which you, Mr. Barnes, put
before us as to what would have been the effect of not having
taken the step that we took, and approach it in that way, since you
raise that issue.
Actually, by moving in timely fashion, what the United States
has done is to prevent a new Nicaraguan campaign to avoid serious
negotiations in the Contadora process. The many political, develop-
mental, and strategic issues raised by the Central American situa-
tion, and in particular by Nicaragua's actions, cannot be resolved
in piecemeal fashion.
They must be addressed comprehensively, as is happening in the
Contadora process, of which Nicaragua is a full participant, and
which the United States firmly supports.
Now, regrettably, the record proves beyond a doubt that Nicara-
gua has repeatedly sought, repeatedly sought, to avoid serious com-
prehensive dialog with its neighbors.
Until mid-1983, Nicaragua insisted on dealing with key Central
American issues only on a bilateral basis, and then only with cer-
tain countries-for example, Honduras-and not others-for exam-
ple, El Salvador.
In fact, in the fall of 1982, Nicaragua even refused to meet with
the Costa Rican Foreign Minister, who had been designated by the
eight-nation San Jose group to discuss the San Jose Final Act prin-
ciples with the Nicaraguans.
When their bilateral approach failed, the Nicaraguans this past
fall after accepting the Contadora process suddenly attempted to
shift the venue of discussion to the United Nations. And I think
that we understand what they hope to accomplish through that.
Again, to avoid the Contadora process.
And they tried that again this last month through the efforts in
the Security Council, which you referred to, Mr. Chairman. In
short, Nicaragua is forum shopping. And I think that all lawyers
know what that is. This is a familiar tactic, but hardly one condu-
cive to serious negotiations on these wide-ranging issues that we
are faced with in Central America.
On learning that Nicaragua was again attempting to undermine
the Contadora process, this time by filing a complaint against the
United States before the International Court of Justice, we modi-
fied our accession to the Court's compulsory jurisdiction to defer, I
repeat defer, any litigation of issues involving Central America.
The Secretary of State on April 6 so notified the Secretary Gen-
eral of the United Nations.
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We believe that the International Court of Justice is a capable
and viable instrument for resolving disputes that are susceptible to
judicial resolution. But in the specific circumstances of Central
America today, the court is not the right venue.
Had we not acted as we did, Nicaragua's suit would inevitably
have split off certain issues from the broader complex of interrelat-
ed issues at the Contadora negotiating table.
Our action then has been taken to keep the search for peace
where it belongs-in the agreed Contadora process which addresses
the legitimate concerns of all concerned.
Now let me talk a little bit about the legal aspects of the notice
that was filed last Friday. Our notice of modification took effect
upon its delivery last Friday. It has the effect of deferring any liti-
gation for 2 years, and for 2 years only, long enough for the Conta-
dora process to have a reasonable opportunity to conclude success-
fully. And finally, it applies only to matters involving Central
America.
Similar actions have been taken by other countries in the past,
among them Australia, India, the United Kingdom and, just a few
weeks ago, Israel. In addition, a large number of other countries
have not accepted the compulsory jurisdiction of the ICJ at all.
Among them are France, Italy, the Federal Republic of Germany,
and Spain.
Moreover, the Soviet Union and other Soviet bloc countries, and
indeed Cuba, do not accept the jurisdiction of the Court at all,
which I think is an important fact to remember.
In the light of that practice by other leading countries, the modi-
fication that we have made is limited and temporary. And it does
not alter our longstanding support for the Court.
Now let me say a few words about what it is that, as a policy
matter, that we would like to see the Nicaraguans do. We would
like to see them sever their military and security ties to Cuba and
the Soviet bloc; to end support for guerrilla groups in neighboring
countries; to fulfill their commitments, the Sandinista commit-
ments, to the Organization of American States, to support democra-
cy; and finally, to reduce Nicaragua's military strength to levels
which would restore the military equilibrium in the area.
The Contadora process is the venue which offers the best pros-
pects for political resolution of these issues. These are political
issues, diplomatic issues. They have to be resolved in a forum like
the Contadora process.
The 21 points in the Contadora document of objectives address
these issues. They address these issues, and they meet our own
pragmatic tests for what is necessary to bring about a peace that
protects the Central American democracies and is consistent with
our own interests.
And in fact, the substance of the 21 objectives, which have al-
ready been agreed upon, including by Nicaragua, is practically
identical with the policy that the President set forth just a year
ago before the joint session of Congress.
The problem is that while these objectives have been agreed
upon, the Nicaraguans have been trying to avoid fleshing out the
commitments, and then agreeing to an enforceable and verifiable
system for seeing them come about.
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If it were possible, if the Nicaraguans were to take that further
step, and the Contadora objectives were to be implemented on a
verifiable and enforceable basis, the U.S. objectives with regard to
Nicaragua would be met.
Now let me make two final comments. First, Nicaragua's record
of intransigence, repression, and aggression has demonstrated that
its leaders will not keep their promises unless they conclude that
they must. Steady pressure is necessary to induce commitments of
this character by the Nicaraguan leaders.
Second, there is a critical difference between Nicaragua's tactics
and the approach that we have adopted. We are not shopping for a
forum that excludes what we do not want to talk about.
The Contadora objectives are genuinely comprehensive. They
take into account Nicaraguan complaints against the United States
and Honduras as well as Salvadoran, Costa Rican, and other com-
plaints against Nicaragua.
While the Sandinistas have cynically attempted to narrow the
subject for discussion, we have just as consistently sought to ensure
that all of the issues are dealt with. That has been and remains to
be our goal, a workable and lasting peace built on a foundation of
democracy, development, and security for all concerned.
Thank you, Mr. Chairman.
Mr. BARNES. Thank you, Mr. Secretary. Is the United States at
war with Nicaragua?
Mr. DAM. No.
JUSTIFICATION OF ADMINISTRATION'S ACTION
Mr. BARNES. I know that you will no doubt not want to answer
questions about any alleged covert activity in an open sessions.
But, just assuming hypothetically that the United States has been
involved in covertly mining harbors of Nicaragua, on what basis
would that be justified if we did it, if we are not at war with Nica-
ragua and if there have been no declaration of war by the Congress
or approval of that action by the Congress?
Mr. DAM. Well, the legal issue and, indeed, the political issue has
to do with what is the unlawful use of force under the U.N. char-
ter.
Mr. BARNES. I'm talking about U.S. law.
Mr. DAM. I guess you had better ask the question again. I
thought I was answering your question.
Mr. BARNES. What is the justification under U.S. law for the ad-
ministration's action?
Mr. DAM. Let me talk in an abstract sense about covert action
then, if that's what you want to discuss.
As part of the reform of the congressional committee system
dealing with covert action in the mid-1970's, a problem was faced,
and that problem had to do with the fact that covert action, which
had been carried on by every administration, certainly since World
War II, had had to face many, many committees. Everybody
wanted to get into the act.
And, so, Congress forced a reform which involved the creation of
Select Committees on Intelligence, and all questions involving
covert action were the responsibility of those committees. There
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are reporting requirements under which the administration reports
to those committees. So, any questions about covert action are
dealt with in those committees.
Mr. BARNES. I understand that, but my question is--
Mr. DAM. That is how Congress has handled its own affairs and,
of course, there are the special appropriation procedures that you
are familiar with.
Mr. BARNES. Are you suggesting, Mr. Secretary, that an adminis-
tration could engage in a war against another country without any
declaration of such by Congress so long as the members of the
Select Committees on Intelligence supported that war?
Mr. DAM. I am not suggesting that. I am not suggesting that we
are at war with Nicaragua. That was your suggestion.
Mr. BARNES. Is the chairman of the Senate Select Committee on
Intelligence correct when he says that the mining of the harbors of
another country constitutes an act of war, or is that an incorrect
statement on Senator Goldwater's part?
Mr. DAM. I do not believe that that is a correct statement. Now,
of course, one of the problems here is that you have internal law
on separation of powers and you have the general international
legal regime. I thought you were asking me about whether, assum-
ing this had occurred, it was war under international standards.
And the real question is, as I started to say, whether or not this
kind of activity would be an unlawful use of force under the Char-
ter of the United Nations.
Mr. BARNES. You mention in your prepared statement that Nica-
ragua had made certain commitments to the Organization of Amer-
ican States. The United States has also made certain commitments
to the OAS.
Mr. DAM. That is right. The commitments are to negotiate out
the document of objectives and to implement them on an enforcea-
ble and verifiable basis, and that is what we are for.
Mr. BARNES. Does the administration consider itself bound by the
treaty we signed as a signatory member of the Organization of
American States?
Mr. DAM. I do not know what you are referring to.
Mr. BARNES. Are you familiar with article 18 of the OAS Char-
ter?
Mr. DAM. I do not have it before me.
Mr. BARNES. I will read it.
Mr. DAM. Perhaps you can provide me with a copy.
Mr. BARNES. I will read it, Mr. Secretary.
No State or group of States has the right to intervene, directly or indirectly, for
any reason whatever, in the internal or external affairs of any other State. The
foregoing principle prohibits not only armed force but also any other form of inter-
ference or attempted threat against the personality of the State or against its politi-
cal, economic, and cultural elements.
Are we bound by that commitment that we made to the Organi-
zation of American States?
Mr. DAM. That is all part of the U.N. system and article 51 of the
U.N. Charter specifically provides for collective self-defense.
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t~rth
Mr. BARNES. I am talking about the treaty, the Charter of the
Organization of American States.
Mr. DAM. And I am answering your question, Mr. Chairman.
Mr. BARNES. You are saying that is supervened by the--
Mr. DAM. I am saying it is all part of a single U.N. legal system.
Mr. BARNES. So, we are not bound by that commitment that we
made to the OAS not to intervene.
Mr. DAM. Just one moment, please.
The OAS Charter specifically refers to the U.N. Charter and it is
all part of the international legal system. You cannot read them-
you cannot read the OAS Charter as you are attempting to do, Mr.
Chairman, and ignore the U.N. Charter.
Mr. BARNES. I see. If we are mining the harbors of Nicaragua,
that is an act of self-defense?
Mr. DAM. Collective self-defense.
Mr. BARNES. I see. Thank you, Mr. Secretary.
The chairman of the full committee is recognized.
PRESIDENTIAL APPROVAL OF MINING
Chairman FASCELL. Mr. Secretary, I am intrigued by a statement
in the letter of the chairman of the Senate Intelligence Committee
which says that, as of last week, he had no notice as chairman that
the harbor was being mined. He found out that, as a matter of fact,
the decision had been made in February, and that the written ap-
proval of the President was obtained in February.
Now, given your statement about complying with reforms that
the Congress enacted with respect to covert operation, how do we
maintain the fiction that there has been compliance when the
chairman of the Intelligence Committee of the Senate said he did
not know anything about it? That is one question.
The second question is, why was it necessary, in this particular
case for the CIA to obtain written permission from the President? I
do not understand that. If the operation, the entire operation of the
Contras itself has already been approved or had met the require-
ments of the notification of the Congress, why did this action re-
quire a separate decision on the part of the Chief Executive? What
was different about it as compared to all of the other activities that
have been going on in that area which were known.
Mr. DAM. Well, first of all, Mr. Chairman, I would be delighted
to review with Senator Goldwater the proceeding before his com-
mittee. But I find it difficult to review in open session the classified
proceedings of the committee from the Senate, which is the select
committee--
Chairman FASCELL. Well, I am just--
Mr. DAM. I am not trying to avoid you.
Chairman FASCELL. No, no.
Mr. DAM. I am saying I have difficulty dealing with that ques-
tion. I have difficulty dealing with it here under these circum-
stances.
Chairman FASCELL. I do not want you to justify it. I thought
maybe you had a ready answer. If you do not, you do not. I am just
reading from his letter that said he did not know about it, period. I
assume he is telling the truth. How about the other part of that
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question, why was it necessary in this particular case to obtain sep-
arate authority from the President? I do not understand that.
Mr. DAM. Well, you are really asking me to confirm things which
I do not think I can confirm in open session, but I will respond in a
general way, and that is, that the President of the United States
follows all intelligence matters very carefully and he is very much
involved in oversight of the intelligence community. So, therefore,
of course, subjects that would involve-would be potentially contro-
versial or involve an extension of something that was already being
done would go to the President.
Chairman FASCELL. Well, until such time as you can become
more definitive, or somebody can, in closed session, I am just going
to have to assume that this was some kind of activity which re-
quired special action on the part of the President that was not en-
compassed in the ongoing programs of supporting the contras
through the CIA.
Mr. DAM. Well, if I could just comment. I do not see why you
think it is so surprising that the President would take an interest
in our foreign policy.
Chairman FASCELL. No; I am not surprised. I though the process
had already been approved by the President. That is all, and I did
not understand, and still do not, why it became necessary to get
specific approval again unless something was different. But I will
find out eventually. It may be a little while, but we will find out, I
suppose.
ACCEPTANCE OF WORLD COURT'S DECISION
The other question I have before my time runs out is this: I un-
derstood some administration official, and this may just be rumor,
has said already that if the World Court, despite the notice of
modification submitted by the United States, decides to accept ju-
risdiction, that we will abide by that decision.
Is that a correct statement of the administration's position?
Mr. DAM. Well, we believe we have a very good legal case on the
jurisdiction issue. It will, undoubtedly, be disputed. This was just a
situation in which this person, as I understand it, was asked:
"Well, suppose you lose that?"
We do not plan to lose that issue, but our general attitude is that
we have respect for the Court and we will try to give effect to its
judgments generally. In fact, we have just submitted a case which
is now being heard by the Court.
Chairman FASCELL. Well, if I may, with the indulgence of my col-
leagues, just pursue that for one second. Will we accept the deci-
sion of the Court on jurisdiction or not?
Mr. DAM. Well, Mr. Chairman, although no final decision has
been made on this, I have been assuming, and I am sure it will be
the case, that we will appear in court. But we are arguing the ju-
risdiction of the Court.
Chairman FASCELL. In other words, the United States expects to
be in court for the hearing on the question of whether or not the
Court has jurisdiction.
Mr. DAM. Certainly that is part of respect for the Court, assum-
ing that Nicaragua challenges this issue.
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III t"I'I~
Chairman FASCELL. Well, aside from that, am I correct that there
is a complaint in the World Court?
Mr. DAM. Yes, Nicaragua filed a complaint on Monday.
Chairman FASCELL. Does that complaint charge the United
States?
Mr. DAM. Yes.
Chairman FASCELL. Is the United States prepared to argue the
question of whether or not the Court has the right of jurisdiction
over the parties?
Mr. DAM. Certainly.
Chairman FASCELL. The United States, therefore, intends to be in
court for that argument.
Mr. DAM. That is our current thinking.
Chairman FASCELL. I hate to have to extract the position out of
the administration which is eminently sensible.
Mr. DAM. My goodness, I am trying to answer your questions,
Mr. Chairman.
Chairman FASCELL. Yes, I understand.
Mr. DAM. Am I not answering your questions?
Chairman FASCELL. I am saying I hate to have to do it the hard
way. But, anyway, the United States is going to be in court and a
preliminary determination has been made that even if the Court
rules that it has jurisdiction, notwithstanding the notice of modifi-
cation, the United States may accept the decision.
Mr. DAM. That is certainly correct, yes.
Mr. BARNES. The gentleman from Michigan, Mr. Broomfield.
Mr. BROOMFIELD. Thank you, Mr. Chairman.
Mr. Secretary, has the mining stopped? Has the mining stopped
in the harbors?
Mr. DAM. Well, I do not know how I can answer that question. I
would be glad to address that question in executive session, Mr.
Broomfield.
ADVERSE IMPACT OF NICARAGUA'S NEIGHBORS
Mr. BROOMFIELD. Well, Mr. Secretary, following up the question
of the chairman of the committee, what are the prospects of El Sal-
vador, Honduras, and Costa Rica filing petitions against Nicaragua
in the International Court of Justice, or intervening in Nicaragua's
suit against the United States in order to get an International
Court of Justice ruling calling for Nicaragua to cease its aggres-
sion, its subversive intervention against those countries, and to
make reparations to those victim countries for any damages result-
ing from Nicaragua's unlawful conduct?
What I am trying to get across is, Nicaragua does not come into
this situation with clean hands; is that not true?
Mr. DAM. That is certainly true.
Mr. BROOMFIELD. Well, what are the prospects of El Salvador,
Honduras, and Costa Rica getting involved in this?
Mr. DAM. Well, that is a jurisdictional question. It has to do with
the extent to which those countries have accepted the jurisdiction
of the Court, because unless they have done so, Nicaragua could
claim it does not have to respond. I have not reviewed that situa-
tion. I would be glad to provide that information for the record.
[The following information was subsequently submitted:]
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In oral argument before the International Court of Justice
on April 27 regarding the U.S. jurisdictional objections
to the Nicaraguan application, the U.S. Agent, Davis R.
Robinson, referred to and submitted as exhibits four
documents expressing the concerns of Nicaragua's neighbors
over litigation and its potential adverse impact on
on-going negotiations. There follow English texts of
telexes to the Registrar of the Court from the Governments
of Costa Rica and El Salvador; a note from the Government
of Honduras to the U.N. Secretary-General, which was also
delivered to the Registrar; and an official Guatemalan
press communique issued in Guatemala City.
The United States has received from the:(Tovernment
of Costa Rica the text of a communication, which the
.Grovernment of Costa Rica indicated that it would send
to the Registrar of the Court, an English version of which
we understand to be as follows:
With regard to the case presented before the
International Court of Justice by the Government of Nicaragua,
the Government of Costa Rica wishes, by this means, to present
for the consideration of the Court the following communication:
Costa Rica declared its permanent neutrality in
belligerent conflicts which affect other states in Presidential
proclamation on November 17, 1983. The neutrality of Costa
Rica is active, and for this reason fully compatible with the
right of Costa Rica as a member of the United Nations and the
Organization of American States in all that relates to the
preservation of peace and international security, as well as in
relation to those activities conducive to a peaceful solution
of disputes between states.
As a perpetually neutral state and a country situated in
the Central American region, Costa Rica has a special interest
in the peaceful solution of disputes and conflicts which affect
this area of the world. For this reason and in pursuit of this
interest in peace and international order, the Government of
Costa Rica would like to provide its Observations concerning
the case presented by the Government of Nicaragua against the
United States of America and its Application for the adoption
of provisional measures in conformity with article 41 of the
Statute and article 73 of the Rules of the Court, without these
observations being considered as an intervention in the case,
in accordance with the doctrine of article 62 of the Statute of
the Court.
Based on the above, the Government of Costa Rica wishes
to make the following Observations:
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1. The "case" presented by the Government of Nicaragua
before the Court touches upon only one aspect of a more
generalized conflict that involves other countries within the
Central American area-as well as countries outside the region.
Faced with such conflicts, a group of American nations,
within the doctrine of article 33 of the Charter of the United
Nations and of article 23 of the Charter of the Organization of
American States, created the so-called "Forum of Contadora" in
order to seek at a sub-regional level, a solution to such
conflicts, since their continuation would constitute a grave
threat to the international peace and security of the entire
Central American area. Within this forum intense diplomatic
negotiations have taken place to resolve the conflicts, not
only in their military aspect, but also their causes, which are
of a political, social and economic nature both internal and
external. This process is very far along and has as
participants all the countries of the region, specifically:
Colombia, Mexico, Panama, Venezuela, Costa Rica, El Salvador,
Guatemala, Honduras and Nicaragua, and with the support of the
international community.
2. The Government of Costa Rica is of the opinion that
whatever measure which the Court might adopt in the "case"
presented for its consideration, taking such measures outside
the context of the complete political and military situation
that prevails in the Central American region, could become a
distorting factor in the difficult equilibrium sought by the
Forum of Contadora in a broader framework of solutions and
could compromise, if not undertaken with prudence and equity,
all possibilities of success for the "Forum of Contadora."
3. Therefore, Costa Rica without pretending to judge in
any way the appropriateness of the provisional measures which
the Court may decide, expresses the following opinion:
I. Whatever provisional measure the Court may
adopt should entail obligations and commitments by both
parties to the dispute.
II. The adoption of any provisional measure,
whatever its nature, should take into account the
existence of the diplomatic effort which is being carried
out in the Contadora group, with the participation of all
the countries of the area, and which seeks a solution to
the conflcits such as those which have been brought
before the Court.
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The United States has received from the Government of
El Salvador the text of a communication, which the Government
of El Salvador indicated that it would send to the Registrar
of the Court, an English version of which we understand to
be as follows:
Excellency:
Although not a party to the case brought before the Court
by the Government of Nicaragua requesting provisional measures
related to its complaint against alleged U.S. military
activities in the region, the Government of El Salvador wishes
to provide the Court with certain information on the
circumstances surrounding the complaint by Nicaragua and the
whole Central American situation.
The problems besetting the Central American region are
many and interrelated. Thkey are political, economic, social,
human rights and security issues; some are bilateral and
others multilateral; some are legal while many are of a
non-legal nature. The Government of El Salvador recalls that
the Contadora process in which Nicaragua is a participant was
initiated to deal with the entire array of these questions and
that it is now engaged actively in its work. The governments
of El Salvador and Nicaragua, with the other concerned
governments in the region, have endorsed the Contadora process
without reservations, as has the Organization of American
States. The Government of El Salvador continues to consider
the Contadora process as the uniquely appropriate forum,
consistent with article 33 of the Charter of the United Nations
and article 24 of the Charter of the Organization of American
States, in which to seek a realistic, durable, regional peace
settlement that would take the manifold legitimate interests of
each participating state into full account.
The issues raised by the Government of Nicaragua cannot
be divorced from the regional issues under negotiation in the
Contadora process. In the view of my government, the complaint
by Nicaragua, if considered by the Court, or if the provisional
measures were ordered by the Court, would damage prospects for
success of multilateral negotiations within the Contadora
framework, especially if such measures were applied to only one
party to the dispute.
Therefore, my Government requests that the Court take
seriously into consideration its views as expressed above, and
that the Court take no action with respect to the requested
provisional measures which would be contrary to the negotiating
process now taking place within the Contadora group for a
comprehensive, regional solution in Central America.
Please accept, excellency, assurances of my highest
consideration and esteem.
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The United States has received from the Government
of Honduras the text of a note addressed to the
Secretary-General of the United Nations, containing
observations on the pending request for provisional
measures, an English translation of which is as follows:
Tegucigalpa, D.C., April 18, 1984
His Excellency
Javier Perez de Cuellar
Secretary General of the United Nations
New York, New York
Mr. Secretary General:
I have the honor to express to Your Excellency the deep
concern of the Government of Honduras regarding the new
international-level initiative undertaken by the Government of
Nicaragua. The purpose of this initiative is to remove from
the jurisdiction of the group seeking a peaceful settlement,
the Contadora Group (Colombia, Mexico, Panama, and Venezuela),
the discussion of the political, economic, social, and security
crisis which is affecting the Central American region and
which, because of its complex nature, requires a comprehensive,
multilateral solution.
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Your Excellency is aware that this crisis is the result of
internal conflicts in certain countries of the area, a lack of
respect for human rights, economic and social underdevelopment,
and, most especially, the arms race and the inordinate build-up
of the Nicaraguan Armed Forces. The Government of Nicaragua is
engaged in the destabilization of neighboring governments by
providing encouragement, financing, training, and logistical
and communications assistance to groups of insurgents from
other Central American countries with a view to establishing
sympathetic governments within those countries.
It was precisely in order to seek a comprehensive solution
to the Central American crisis that the Contadora Group
proposed direct negotiations between the nations of the
region. That proposal was accepted by the Government of
Honduras, which, from the start, supported it fully and
participated actively in all meetings convened by the Contadora
Group.
On April 4, 1983, the Government of Honduras submitted to
the Permanent Council of the Organization of American States a
draft resolution aimed at restoring peace to the Central
American region. On the request of the Contadora Group,
submitted to the Permanent Council through the permanent
representative of Colombia, Honduras agreed to suspend
discussion of its draft resolution so that the direct
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negotiations sponsored by this group of OAS member countries
would have a chance to achieve positive results. In this
respect, His Excellency Bernardo Supulveda, Secretary of
Foreign Relations of Mexico, acknowledged at a press conference
in Mexico City on April 13, 1983, that the conciliatory
attitude of Honduras within the OAS was what had made the
fraternal effort of the Contadora Group possible. Referring to
the Panama meeting of the Contadora Group ministers, during
which this effort was decided upon, the Mexican Foreign
Minister said:
"First of all, it was realized that the immediate concern
was to ensure that the OAS Permanent Council would not hamper
the Foreign Ministers of the Contadora Group in their efforts
to find solutions for Central America. This was an urgent
issue inasmuch as the OAS Permanent Council was scheduled to
consider a draft resolution submitted by Honduras that same
Monday afternoon. Fortunately, through a series of
conversations we had with other parties concerned, an agreement
was reached to postpone consideration of the draft resolution
in the OAS Permanent Council, and this relieved the pressure so
that the issue could be shifted from the regional forum to the
Panama forum--that is to say, to the Foreign Ministers of the
Contadora Group. At the same time, it was clear that it would
also be necessary to take steps to prevent duplication in the
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United Nations system of efforts that had just begun in Panama
on the previous Monday."
"The parties concerned welcomed our proposal
enthusiastically and decided to ask the OAS Permanent Council
to postpone its consideration of the issue. This was the first
action taken on the matter," stated Minister Sepulveda, 'and as
I said before, it freed us by making it possible for us to
exercise direct jurisdiction over the problem.'
In more than a year of delicate multilateral negotiations,
the Contadora Group has had the full support of the
Organization of American States (AG RES 675-XIII-0/83) and the
United Nations General Assembly (RES 38/10) and Security
Council (Resolution 530-1983), as well as the international
community in general, regardless of ideological, political,
economic, and legal systems.
That\is why the Government of Honduras considers it
necessary and in the best interests of the nations of the
Central American region and of other peace-loving nations for
the Contadora Group to continue its efforts to achieve a
lasting and stable peace in the region without this process
being hampered by some country seeking recourse to other means
of peaceful solution.
In accordance with this viewpoint, which is shared by the
majority of the Central American countries and by the Contadora
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Group, the Government of Honduras wishes to point out the
dangers of discussing the Central American crisis in various
international forums simultaneously, as the Government of
Nicaragua has requested, when direct negotiations are already
in progress. This viewpoint has also been corroborated by the
fact that United Nations Security Council and General Assembly,
and the OAS General Assembly, have sent the Central American
issue back to the Contadora Group, to which they give their
unconditional support.
Once again the Government of Nicaragua is seeking to flout
the Contadora negotiation process by attempting to bring the
Central American crisis, essentially a political issue, under
the jurisdiction of the International Court of Justice. This
is detrimental to the negotiations in progress and fails to
recognize the resolutions of the United Nations and the
Organization of American States or the full international
endorsement that the Contadora peace process has so deservedly
received.
Needless to say, the negotiations conducted by the Central
American countries within the Contadora Group are expressly
authorized by Article 52 of the United Nations Charter and
Article 23 of the OAS Charter, which provide for regional
settlement of disputes.
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.The Government of Honduras, without participating or
seeking to intervene in any way in the proceedings initiated by
Nicaragua against the United States of America in the
International Court of Justice, views with concern the
possibility that a decision by the Court could affect the
security of the people and the State of Honduras, which depends
to a large extent on the bilateral and multilateral agreements
on international cooperation that are in force, published, and
duly registered with the Office of the Secretary General of the
United Nations, if such a decision attempted to limit these
agreements indirectly and unilaterally and thereby left my
country defenseless.
The Government of Honduras also considers that since the
Contadora Group unanimously approved the "document of
objectives" of September 9, 1983, which encompasses all the
problems related to various aspects of the regional crisis, and
since negotiations are in progress between the five Central
American countries in the three working commissions created for
this purpose, these negotiations must continue without
disruption by removal of the matter from this jurisdiction.
In view of the reasons stated above and in consideration of
Nicaragua's petition that the Court impose precautionary
measures in the proceedings initiated by Nicaragua against the
United States of America, I respectfully request that Your
Excellency transmit with due urgency to the clerk of the
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International Court of Justice the text of this note expressing
the Honduran Government's concerns about the impact such
measures could have on the negotiations in progress and the
international security of the State of Honduras.
I avail myself of this opportunity to renew to Your
Excellency the assurances of my highest consideration.
Press Release Issued by Guatemalan Ministry of Foreign Affairs
Monday, April 16, 1984
DEPARTMENT OF STATE
DIVISION OF LANGUAGE SERVICES
112640
Spanish
BP/JRP
Guatemala reiterates that the Central American issue should be
discussed by the Contadora Group; that any attempt to seek another
forum or international body in order to discuss security problems of a
political, economic, and social nature has a negative impact on the
Contadora process.
Guatemala once again states its endorsement of and support for the
positive work of the Contadora Countries, and will spare no effort in seek-
ing formulas to relax the tensions and achieve permanent peace in the
region.
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AID TO EL SALVADOR
Mr. BROOMFIELD. Mr. Secretary, in view of the action taken last
night in the Senate in approving by a vote of 84 to 12 a nonbinding
resolution, what is the political situation now? I cannot help but
believe that covert aid is down the drain. And according to the
Speaker, while the bottom line on aid to El Salvador is $62 million,
he is not even going to bring it up until after the recess and is talk-
ing about possibly half that amount.
What is the future of the situation in El Salvador if all of this
falls in? In other words, you cannot go ahead and aid the Contras
and you may not get the necessary minimum aid for El Salvador. I
think we are in a real situation now where I do not know how you
can continue.
Mr. DAM. Well, I agree that just taking the El Salvador situa-
tion-unless there is assistance for El Salvador, we could well see
the runoff elections disrupted and we could see a very severe dete-
rioration of the security situation in El Salvador.
I think we each have our own opinions on where that would end.
But my personal view is that it would be just a question of time
before democracy in El Salvador goes down the drain.
Not everyone is happy about the situation, the political situation
in El Salvador, but, believe me, it could be a lot worse. And I do
not see why people think there would be a better situation if the
insurgents were to take control.
Mr. BROOMFIELD. Well, I believe there is no hope that the admin-
istration is going to get any covert aid for the Contras. I think that
is done. I agree with all the remarks that have been made.
What kind of aid are you going to have to have for El Salvador
in view of that? It seems to me that the request for El Salvador
would have to go up substantially to offset the amount of weapons
and so forth coming in from Nicaragua.
Mr. DAM. That is certainly true and, indeed, the House Select
Committee on Intelligence last year recognized that. Now, they had
a recommendation which, as you know, the administration could
not support that we build a fence around El Salvador. But that
does not seem to me to be a very wise idea.
First of all, I do not know how you get the insurgents to move
aside to build a fence. But, obviously, it would require a completely
different approach to the El Salvador situation.
Mr. BARNES. The gentleman from New York is recognized.
COVERT ACTION
Mr. SOLARZ. Thank you, Mr. Chairman.
Mr. Secretary, do we intend to continue providing support for
this effort, to mine Nicaraguan ports?
Mr. DAM. You have got me with the problem of the executive
versus open session question. I discussed this question yesterday
with Chairman Fascell when we were talkng about whether to do
this session open or closed, and I pointed out to him that this kind
of question would put me in the position of appearing to refuse to
answer the questions of the committee.
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Now, I am perfectly happy to answer these questions. But I do
resent being asked questions that have to do with the covert action
and that, obviously, are not appropriate for open session.
Mr. SOLARZ. Mr. Secretary.
Mr. DAM. And you have got the upper hand. You can make me
refuse to answer if you would like, as you are doing.
Mr. SOLARZ. Well, Mr. Secretary, this is on the--
Mr. DAM. Just at the outset, I would like to get the ground rules
straight, at least with you, Mr. Solarz.
Mr. SOLARZ. Mr. Secretary, this is on the front page of every
newspaper in the country, if not the world. Everybody knows it is
going on. The question is a very simple one. Do we intend to con-
tinue providing support for this kind of activity?
Mr. DAM. I have the same response.
Mr. SOLARZ. Let me ask you this. On the assumption that we
have been doing this, it strikes me that the administration has
managed to accomplish the difficult feat of uniting our European
allies, albeit against us rather than for us.
Insofar as I have determined, you have even managed to facili-
tate the emergence of a de facto military alliance between Nicara-
gua and France, which has undertaken to clear these harbors of
mines which we helped put there.
Now, in view of the fact--
Mr. DAM. I am not aware of any decision by the French Govern-
ment to do that.
Mr. SOLARZ. Well, in view of the fact, Mr. Secretary, that this
action has been condemned by the Contadora countries, has been
condemned by our European allies, has been--
Mr. DAM. Which ones?
Mr. SOLARZ. Has been-by France, I believe, by Britain, by
others, what possible--
Mr. DAM. Which ones? I am not aware of that, Mr. Solarz. I do
not accept your assumption.
Mr. SOLARZ. My understanding is--
Mr. DAM. There has been an official statement out of Britain,
but other than that, I--
Mr. SOLARZ. Was not there a vote yesterday in the Security
Council of the United Nations which France supported, which was
critical of the United States and what we have been doing?
Mr. DAM. There have been votes critical of the United States in
the United Nations; that is correct. I thought you were referring to
statements which have been made in the last few days by govern-
ments.
Mr. SOLARZ. Well, in view of the facts that there has been pretty
close to universal condemnation of what we have been doing down
there, not only in the hemisphere, but in Europe, what possible jus-
tification is there for this effort to mine the ports of Nicaragua?
What are the gains which outweigh the losses which have resulted
from it?
Mr. DAM. The policy that we have pursued generally-I am not
addressing the mining question-has been to put pressure on the
Nicaraguans in order to assure that they will proceed to implement
the Contadora 21-point document of objectives. That is our policy.
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CONTADORA PROCESS
Mr. Sor.ARZ. Well, Mr. Secretary, do you believe that the Conta-
dora countries themselves are sincerely committed to the Conta-
dora process?
Mr. DAM. Well, I certainly hope that they are. All of those that
participated-all nine who participated in the--
Mr. SOLARZ. I am talking now about Mexico, Venezuela, Panama,
and Colombia.
Mr. DAM. I take them at their word, yes.
Mr. SOLARZ. Presumably, they would like to see this process suc-
ceed.
Mr. DAM. Yes.
Mr. SOLARZ. If that is the case, how do you justify the fact that
we appear to be embarked on actions such as mining the ports in
Nicaragua which the Contadora countries themselves have explicit-
ly said are counterproductive and obstruct rather than facilitate
progress in the Contadora process?
I thought this administration supported the Contadora process,
yet we seem to be taking actions which undermine that process
rather than support it.
Mr. DAM. Well, on April 8, four of the Contadora countries issued
a statement, which I assume you are referring to, in which they
called for a general lowering of the level of violence in the region.
That is certainly-and they mentioned the mining-that is certain-
ly something that we can accept. We would like to see it done, ne-
gotiated out, and done on a verifiable basis, because you know the
Nicaraguan have repeatedly been saying, "Who, us? We are not
doing a thing," but gradually--
Mr. SOLARZ. Mr. Secretary.
Mr. DAM [continuing]. They are conceding exactly what they are
doing is trying to subvert their neighbors.
Mr. SOLARZ. Mr. Secretary, one final question. You said that you
do not believe Nicaragua is serious about the Contadora process. I
was down there in January. The Nicaraguan leaders told me that
they were prepared for agreements within the framework of the
Contadora process that would provide for the withdrawal of all for-
eign military advisers from the region, the disestablishment of any
foreign military bases, the nonintervention of each of the countries
in the affairs of the other and for procedures which would verify
these assurances. The Contadora process is now proceeding, negoti-
ations are taking place.
Can you let us know very specifically on each of these points, for-
eign military advisers, foreign military bases, nonintervention, and
the like, what are the positions that Nicaragua has taken and to
what extent are they unhelpful?
Mr. DAM. Well, let me just give you an example of what is un-
helpful. At the last meeting, which I think was April 2 and 6, at
the working level, they refused to even follow the agenda. Sure,
they will sign up for the document of objectives and I am sure they
will say the right things to you, Mr. Solarz. But when you get right
down to negotiating it out and getting it on a verifiable basis,
where are the Nicaraguans?
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Mr. BARNES. Before recognizing Mr. Winn, the Chair recognizes
the chairman of the committee.
VOTE TO GO INTO EXECUTIVE SESSION
Chairman FASCELL. Mr. Chairman, it is clear that it may be nec-
essary at some time to go into executive session to pursue some of
the matters that have been raised in the discussion this morning.
Under the rules, that requires a vote.
I wonder if we can quickly take a vote on going into closed ses-
sion at some time in the future and get that behind us and then
proceed with the witness.
Mr. BARNES. Is there a discussion of the chairman's recommenda-
tion that we have a vote at this time? If not, a rollcall is required.
The chief of staff will call the roll.
Mr. BRADY. Chairman Fascell.
Chairman FASCELL. Aye.
Mr. BRADY. Mr. Hamilton.
[No response.]
Mr. BRADY. Mr. Yatron.
[No response.]
Mr. BRADY. Mr. Solarz.
Mr. SOLARZ. Aye.
Mr. BRADY. Mr. Bonker.
[No response.]
Mr. BRADY. Mr. Studds.
Mr. STUDDS. Aye.
Mr. BRADY. Mr. Ireland.
[No response.]
Mr. BRADY. Mr. Mica.
Mr. MICA. Aye.
Mr. BRADY. Mr. Barnes.
Mr. BARNES. Aye.
Mr. BRADY. Mr. Wolpe.
Mr. WOLPE. Aye.
Mr. BRADY. Mr. Crockett.
Mr. CROCKETT. Aye.
Mr. BRADY. Mr. Gejdenson.
Mr. GEJDENSON. Aye.
Mr. BRADY. Mr. Dymally.
Mr. DYMALLY. Present.
Mr. BRADY. Mr. Lantos.
[No response.]
Mr. BRADY. Mr. Kostmayer.
Mr. KOSTMAYER. AYE.
Mr. BRADY. Mr. Torricelli.
Mr. TORRICELLI. Aye.
Mr. BRADY. Mr. Smith.
[No response.]
Mr. BRADY. Mr. Berman.
[No response.]
Mr. BRADY. Mr. Reid.
Mr. REID. Aye.
Mr. BRADY. Mr. Levine.
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[No response.]
Mr. BRADY. Mr. Feighan.
[No response.]
Mr. BRADY. Mr. Weiss.
Mr. WEISS. Aye.
Mr. BRADY. Mr. Ackerman.
Mr. ACKERMAN. Aye.
Mr. BRADY. Mr. Garcia.
[No response.]
Mr. BRADY. Mr. Broomfield.
Mr. BROOMFIELD. Aye.
Mr. BRADY. Mr. Winn.
Mr. WINN. Aye.
Mr. BRADY. Mr. Gilman.
Mr. GILMAN. Aye.
Mr. BRADY. Mr. Lagomarsino.
[No response.]
Mr. BRADY. Mr. Pritchard.
[No response.]
Mr. BRADY. Mr. Leach.
Mr. LEACH. Aye.
Mr. BRADY. Mr. Roth.
[No response.]
Mr. BRADY. Ms. Snowe.
Ms. SNOWE. Aye.
Mr. BRADY. Mr. Hyde.
Mr. HYDE. No.
Mr. BRADY. Mr. Solomon.
[No response.]
Mr. BRADY. Mr. Bereuter.
Mr. BEREUTER. Aye.
Mr. BRADY. Mr. Siljander.
Mr. SILJANDER. Aye.
Mr. BRADY. Mr. Zschau.
Mr. ZSCHAU. Aye.
Mr. BARNES. For the record, the chief of staff will report the
vote.
Mr. BRADY. On this vote, there were 21 ayes, 1 no, and 1 present.
Mr. BARNES. We will withhold going to executive session until a
motion by Chairman Fascell.
At this time, the Chair recognizes the gentleman from Kansas.
Mr. WINN. Thank you very much, Mr. Chairman. I am glad the
chair of the full committee brought up this point, because there is
something I do not quite understand that is going on here. We
were notified earlier in the week of a closed session, with a briefing
by Secretary Dam, and then as of 5:30 last night, it was changed
and it became an open session.
In my own opinion, it has become a political football with the
opening statement of the chairman of the subcommittee. I am not
happy about the way that the whole thing has developed. I think
we are on a bad track, but I doubt that I can really find out what I
want to know in an open session. And I yield back the balance of
my time.
Mr. BARNES. The gentleman from Massachusetts is recognized.
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Mr. STUDDS. Thank you, Mr. Chairman.
Mr. Secretary, many of us, perhaps most of us, will go back to
our own constituencies this weekend around the country and I can
assure you in my own case, at least, and I suspect in others, that
the sessions we will have in open forum with our constituents will
center heavily around these questions. And we will all be asked
"What did you ask the administration?"
I realize you think you have to operate under certain ground-
rules; imagine how we feel once we have had our briefings in
closed session. We then face the people of this Nation in wide open
forums in every town and village and city of the Nation, what the
hell are we supposed to say to them?
And I can assure you that there are a great many people in this
Nation who would like to be in every one of these seats here today
with an opportunity to ask you, on behalf of this administration,
some questions.
But I suspect they would boil down to what the hell are you
doing. What are you doing with and to our country.
Let me before I make a very brief personal statement ask you a
couple of questions.
ACT OF WAR?
Under general international law, is the mining of a harbor
within a nation's territorial waters considered an act of war?
Mr. DAM. Under international law, as I understand it, and I do
have here the Deputy Legal Adviser of the Department of State,
the issue of act of war has largely been superseded, since the U.N.
Charter came into effect, by the question as to whether the force
that is being used is lawful force, or unlawful force.
And on of the major well-recognized exceptions to the general
rule that force should not be used is self-defense, including collec-
tive self-defense.
Mr. STUDDS. All right.
Mr. DAM. So, that is where the issue centers.
Mr. STUDDS. Does the United States have a contingency plan for
the introduction of U.S. Forces into Nicaragua or anywhere in Cen-
tral America?
Mr. DAM. Well, there are exercises that will be going on, have
been going on at various levels in Honduras. We do have trainers
in El Salvador. There are troops stationed in Panama, if you call
that part of Central America.
But I would like to address what I think is the thrust of your
question by reading from a statement that was made last night by
four members of the administration in an effort to clarify--
Mr. STUDDS. If you could be brief; we have all seen the statement.
I appreciate your wanting to get it on the record, but if you could
be quick.
Mr. DAM. Do you want me to answer the question of--
Mr. STUDDS. Go ahead. I just wanted to have an opportunity to
ask some, too.
Mr. DAM. I beg your pardon?
Mr. STUDDS. Go ahead.
Mr. DAM. I am trying to answer the question.
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Trying to deal with this problem of these nameless, faceless
people who were quoted in the newspapers who say this, that and
the other, and so this statement was designed to be categorical
answer and it is signed by George Shultz, Secretary of State; Wil-
liam Casey, DCI, Director of Central Intelligence; Caspar Weinberg-
er, Secretary of Defense; and Robert McFarland, Assistant to the
President for National Security Policy.
Mr. STUDDS. How long is that statement, Mr. Secretary?
Mr. DAM. Oh, it is two pages, and I do not intend to read any
more than the relevant portion.
Mr. STUDS. I would ask you to be very brief. We have all seen
the statement in the paper this morning.
Mr. DAM. It is designed to be an answer with regard to allega-
tions that we are planning for U.S. combat troops to conduct an in-
vasion in Central America.
We state emphatically that we have not considered nor have we developed plans
to use U.S. military forces to invade Nicaragua or any other Central American
country. Secretary Weinberger made this point in his television appearance on
Sunday.
Mr. STUDS. Mr. Secretary, may I interrupt you? Let me say to
you that I consider that an answer to the question and I would ask
on your behalf the entire statement appear in the record at this
point.
[The aforementioned statement follows:]
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THE WHITE :HOUSE
Office of.the:.Press Secretary.
STATEMENT BY THE PRmCZPAL DEPUTY PRESS?SECRETARY
The following statement Iis-concurred in by Secretary of State George
Shultz, Secretary 'Of Defense Casppaarr. Weinberger, Director of the
Central Intelligence Agency William Casey, and Assistant to the
president for. National-Secattty Affairs-Robert McFarlane:
in recent days a shrill: and often, oonf~sing debate has developed
over oar goals, plans, and activities in central America. Because
this debate, much?oY'it uninformed andunattributed, is obscuring
the real situation, we: believe it in'the public interest to set
the record. straight on*our objectives, our policy, and our actions an the record.
First, allegations.have been made ; that:we,are planning for U.S.
ceubat troops to conduct'an invasion in Central America. We
state esphatically.?that we have riot considered, nor' have we
developed plans to. use U.S. militiry'forcesto invade Nicaragua
or any other Central American country. -Secretary Weinberger made
this point in his.television a aranee-.on-Sunday. -Some have
chosen to disbelieve him--cousocily or'.tu,conse sly confusing
what they call 'invasion' plans with our-longstanding obligations
under the 1947 Rio Treaty, our treaty obligations to defend the
Panana Canal, or military contingency plans for disaster relief,
h sanitarian assistance, or emergency. evacuations. For over a
generation, as prudence would dictate,'.we.have maintained and
updated plans for ; these: contingencies We,have not, however,
planned to use our: forces to. invade'any : country a~tbe region.
Second, some have. indicatedthat, we 'are planning to conduct a
post-election military. enterprise in -Central. America. This quite
sirply is not the case. As stated ' before,we are not planning
for such action.now nor are we planning for it after our election.
Third, it has been alleged: by critics of. ..the. Administration that
certain activities in-the?Central 'American. region have not been
adequately briefed to appropriate., committees of the Congress. To
the contrary,. all U.S. activities in`the Central America. regior-
have been fully briefed in. detail to;the committees of ttie
Congress. which. exercise' jurisdiction 'in full -.campliaace:with the
law. Further, last week (April 4) .the President sent a letter to
the Majority Leader of the-Senate,?.Howard. Baker,, assuring bin
that our objectives and goals in the region had not
changed--apecifieallp , 'the United States does not seek to
destabilize or overthrow the'Government'of Nicaragua.'
MORE
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Fourth, and perhaps most significantly, the current debate has
tended to confuse the improvements. that we have helped make in
E1 Salvador with what is really going on in Nicaragua:
- Our policy toward Nicaragua has been consistent in that we
have supported the multi-lateral dialogue in what is known
as the Contadora process. We have endorsed the 21 Contadora
objectives which would require that Nicaragua terminate the
export of subversion, reduce the size of its military
apparatus, implement its democratic commitments to the OAS,
and remove Soviet Bloc and Cuban military personnel.
- Nicaragua's response throughout has been fraudulent and
cynical. They have tried to avoid a comprehensive solution
for the region by seeking to reduce all diplomacy to
bilateral questions. They have tried to bypass regional and
hemispheric efforts by making propaganda at the United
Nations. Now they have cynically attempted to side-track
negotiations by going. to the International Court of Justice.
A government fanatically dedicated to intervention beyond
its borders thus seeks to use an honorable international
institution to protect it from its own citizens who are
rising up against it. This Administration will not be
deceived nor will it play that game. Following the example
of other nations, the U.S. has checked this maneuver by a
temporary and limited modification of our acceptance of the
court's jurisdiction.
Nicaragua continues to be the source of regional subversion
and insurgency. In May 1983, the House Permanent Select
Committee on Intelligence, itself, concluded that "the
Sandinista Government of Nicaragua is helping train
insurgents and is transferring arms and financial support
from and through Nicaragua to the insurgents- They are also
providing the insurgents bases of operations in Nicaragua.
Cuban involvement--especially in providing arms--is also
evident."
In El Salvador, on the other hand, we have witnessed an
inspiring display of courage and commitment to the
democratic process by the people of El Salvador. At the end
of last month, these courageous people again braved
guerrillas violence and sabotage to vote for their next
president.
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The courage and confidence in democracy that the Salvadoran
people are demonstrating deserve our admiration and full support.
Now more than ever, our backing for the democratic process. must
go beyond mere words. Recent uninformed comment on these matters
has diverted attention from the. central issue. The
Administration has proposed a long term program based on the
recommendations of the National Bipartisan Commission on Central
America. We have also presented our case for urgent military
assistance to El Salvador. That case is sound and the ongoing
Salvadoran election process about to enter a run-off requires our
support so that El Salvador can ensure its safe conduct.
it is critical that the American people understand what is at
stake in the Central American region. Central America is
strategically important to the United States. It not only
contains the Panama Canal but sits astride some of the most
irportant sea lanes in-the world. Most importantly, it contains
millions of people who want to be free and who crave democracy.
The recent elections in El Salvador prove that. The real issues.
are whether we in the United States want to stand by and let a
ccaaunist government in Nicaragua export violence and terrorism
in this hemisphere and whether we will allow the power of the
ballot box to be overcome by the power of the gun. There is no
doubt that the Soviet Union and Cuba want to see communism spread
further in Central America. The question is: Will the United
States support those countries that want democracy and are
willing to fight for their own freedom?
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Mr. DAM. Certainly, and we go on to explain exactly--
Mr. STUDDS. I understand.
Mr. DAM [continuing]. That that is, in fact, the position.
"LEGAL RIGHTS TO SAFE PASSAGE IN THE SEAS"
Mr. STUDS. All right. The New York Times of April 9 quoted
one of your favorite anonymous administration officials as saying
that "any ship entering Nicaraguan waters gives up its legal right
under international law to safe passage in the seas."
Does that view reflect the attitude of this administration?
Mr. DAM. That sentence is not coherent to me.
Mr. STUDS. "Any ship entering Nicaraguan waters gives up its
legal right to safe passage in those waters." Is that--
Mr. DAM. In those waters?
Mr. STUDDS. In other words, should all nations be warned that
they cannot--
Mr. DAM. All nations--
Mr. STUDS [continuing]. Expect safe passage?
Mr. DAM. Well, all nations are, in fact, warned and were warned
through Lloyd's of London by the Contras that there was danger
there, if that is what you mean. From a legal standpoint that
means that they do not have a civil cause of action to recover.
Mr. STUDS. Let me just say, Mr. Secretary, speaking for myself,
once in a while a genuinely fundamental question arises around
here which I think goes to the very nature of the United States of
America and what it is all about. I suggest to you with all due re-
spect that this administration is in contempt. It is in contempt of
the Nation that it purports to lead, it is in contempt of its history.
The very first time this Nation went to war was over freedom of
the seas with the Barbary pirates, the impressment of seamen by
the British. The theme of freedom of the high seas runs throughout
all of American history. It is at the core of this Nation from its
first decade.
The administration is in contempt of the values of the laws of
the Congress and the people of this country. You have squandered
the moral capital of the United States.
How would you like to be an ambassador of the United States in
a Third World country, and in view of what is in the headlines in
every paper in the world today be asked, "Well, then, Mr. Ambas-
sador, what is the difference between United States and the Soviet
Union?" That question ought to be incredibly easy and clear and
self-answering. And I suggest that the response to it has been hope-
lessly and inexcusably muddled by the insistence of this adminis-
tration on behaving precisely as the Soviet Union behaves. You
even managed in response to an earlier question to justify, in part,
our refusal to recognize the jurisdiction of the World Court on the
grounds that the Soviets do not do it either.
Well, so what? I used to think there was a very real difference
between the United States and the Soviet Union, and I think that
a great many people of this Nation, and I think that it is reflected
by the vote in the Senate last night, fundamentally resent and
reject the attempt of this administration to blur that difference. It
is real and it deserves not to have to be explained.
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And my time has expired.
Mr. BARNES. The Chair recognizes the gentleman from New
York, Mr. Gilman, for 5 minutes.
Mr. GILMAN. Thank you, Mr. Chairman.
Mr. Secretary, to what extent do nations have a right, individual-
ly or collectively, to self-defense or to counterintervention against a
nation which has illegally intervened, overtly or covertly, against
another nation by supporting subversive aggression?
In this connection, could not El Salvador, which has been the
object of Nicaraguan infiltration of arms and supplies to guerrillas
in its territory, claim that the right of self-defense could include
proportionate actions in Nicaragua to interrupt the flow of arms
and to disrupt Nicaragua's ability to carry out its infiltration and
support activities in El Salvador?
Mr. DAM. Well, first of all, the right of self-defense and collective
self-defense is specifically recognized in the U.N. Charter.
And, second, yes, El Salvador certainly would have a good claim
there. I do not know what the jurisdictional situation is with
regard to El Salvador in the World Court, as I indicated before. But
putting aside that question, yes.
Of course, does anyone really think that the Nicaraguans, who
claim they were not doing it anyway, would obey an order of the
World Court?
THE MATTER OF THE IJC
Mr. GILMAN. Well, then, could you explain to us why the admin-
istration believes it is better to avoid having the International
Court of Justice decide the international law questions involved in
the conflict in Central America by entering a temporary reserva-
tion to our acceptance of the International Court of Justice compul-
sory jurisdiction on these issues and to defend our position on the
merits and file a countermemorial to bring Nicaragua's illegal con-
duct before the International Court of Justice.?
Mr. DAM. Yes, I can. The fundamental reason is the one that I
indicated in my prepared testimony. This is a kind of frolic and
detour. This is an attempt by the Nicaraguans to sliver off a few of
the questions and put them in another forum as a way of imple-
menting their strategy which apparently is to sign the Document
of Objectives, but derail any serious fleshing out of them and then
their enforcement and verification.
There are also some other tactical problems gentlemen, in prov-
ing one's case. We have completely different societies. We have
completely asymmetrical situations.
In the United States, it seems that everything leaks, and that ev-
erything is in the Congressional Record, and the Nicaraguans can
quote Mr. Studds and other people, to support their case; whereas,
we are involved in dealing with a society where nothing is dis-
cussed. There are no hearings like this. There is no opportunity to
discuss any of these matters, and therefore we are, in order to
prove our case, put in a position where we would have to use intel-
ligence information and no doubt compromise sources and methods.
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You have to be practical about how this would unfold and I think
as one thinks about it carefully, it gives one a little pause about
what seems to be an obvious way to approach this.
Mr. GILMAN. But, Mr. Secretary, under the statute of the Inter-
national Court of Justice, the Court settles by decision disputes
over its jurisdiction.
If the Court of Justice should rule against the preliminary objec-
tion by our Nation denying the Court's jurisdiction, is it our inten-
tion then to proceed to arguments on the merits of the case and
abide by the terms of the Court's eventual decision on the merits?
Mr. DAM. Well, I was addressing that before, and I will try to be
more explicit about it.
It was sort of a fractured response because there were a number
of questions that came in between.
First of all, we think we have a very good case. In fact, we think
it is ironclad, so we do not anticipate that that situation would
arise.
If it should arise, it is really very difficult at this point in the
litigation to foresee exactly how it might arise-at what stage, and
so forth.
But our general posture is that we have great respect for the
Court-in fact, we have just submitted to the Court, and it is now
being argued, a major case involving a boundary with Canada. So,
we have every reason and every motivation to accord the decisions
of the International Court of Justice full respect.
But I am not going to say what we will do in a hypothetical situ-
ation somewhere down the stream. First of all, I am not authorized
to make such a commitment on behalf of the United States.
Mr BEREUTER. Would the gentleman yield on that point?
Mr. GILMAN. Yes, I would be pleased to yield to the gentleman.
Mr. BEREUTER. I just wonder if I might ask Mr. Dam a quick
question because we have a vote on right now, but if you cannot
answer questions to us in open session regarding our involvement
or noninvolvement, for that matter, and how deep it would be, as-
suming we are involved in this whole issue, how in the world can
we go before the World Court and expose classified information.
I presume you are not answering certain questions until closed
session because the information is classified. Therefore, who are we
to present our classified information into a World Court about a
guerrilla activity, which is highly irregular anyway?
It seems rather logical that we proceed in such a manner, just
from that standpoint alone.
I just wanted to throw that 2 cents' worth in.
Mr. DAM. That's the practical consideration that I was referring
to, part of the practical fact of litigation. Thank you.
Mr. BEREUTER. Thank you for yielding.
Mr. GILMAN. Thank you, Mr. Chairman.
Mr. BARNES. The gentleman from Michigan will take the Chair.
It is his turn, so he will be asking questions while others of us go
vote.
Mr. SOLOMON. Mr. Chairman, point of order.
Down here.
Mr. BARNES. Yes.
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Mr. SOLOMON. There is a vote going on, and are we not going to
recess? I want to hear what the gentleman from Michigan is going
to pose to the witness.
Can't we recess for 5 minutes? I mean, this is highly irregular.
Mr. BARNES. OK. The gentleman objects to the procedure. We
will go vote and return.
The gentleman from Michigan had another commitment, but
since there is objection, we'll--
Mr. SOLOMON. I am terribly sorry, but I mean-I hope I don't
have to object. I hope you will just recess.
Mr. BARNES. We will recess for 10 minutes.
Mr. SOLOMON. Thank you.
[Whereupon, the hearing was recessed, to be resumed in 10 min-
utes.]
Mr. BARNES. The committee will resume the hearing.
[Pause.]
Mr. BARNES. For the information of our colleagues on the com-
mittee, the Chair would announce that the scheduled hearing of
the Subcommittee on Western Hemisphere Affairs on this subject
will not take place this afternoon. A motion will be made by Chair-
man Fascell to use that time this afternoon for a closed session.
The Chair recognizes the gentleman from Michigan, Mr. Wolpe.
SENATE VOTE ON MINING OF HARBORS
Mr. WOLPE. Thank you very much, Mr. Chairman.
Mr. Secretary, the thrust of the question I would like to raise
with you this morning, following some remarks I would like to
make, is essentially where do we go from here?
Where do we go from here? I ask that question in the context of
what was really absolutely extraordinary action in the Senate yes-
terday. Extraordinary because the Senate voted 84 to 12 to reject
the mining of the Nicaraguan harbors in which the United States
is engaged and because that 84 to 12 vote had counted in the ma-
jority the leading Republican Senators joining with the Democratic
leadership.
If that is not a repudiation of an administration policy on a bi-
partisan basis, I do not know what is. There are really two parts to
the question of where do we go from here?
One part is, is the administration going to continue to fly in the
face of that bipartisan consensus repudiating its policy? Is it going
to continue to stand in' what is essentially contempt of both the
Congress and the American people with respect to the policies that
are being pursued in Central America?
That is one question.
The second question is: What can be done by the administration
to overcome what I can only describe as an extraordinary credibil-
ity gap that has grown in the relationships between the adminis-
tration and the Congress?
It is important, I think, to understand that that vote in the
Senate yesterday was not only a vote in opposition to specific poli-
cies that, I think most Members of Congress understand to be ille-
gal under American law and under international law, and there-
fore contrary to American principles and traditions. It is also a re-
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flection of an overwhelming bipartisan view that the actions that
we are engaged in are directly counterproductive in terms of the
protection of American interests within the region.
I think that vote yesterday, and the vote that would certainly be
of the same magnitude if it were to take place in the House, is also
a reflection of growing concern about a pattern of deception-and
that is the only way it can be described-in the presentations by
administration witnesses before congressional committees.
THE "WHITE PAPER"
I want to go back, in terms of laying out what I would argue as a
pattern of activity, to the original so-called White Paper that was
advanced by former Secretary of State Al Haig, which purported to
demonstrate that the central element of the conflict in Central
America was that of external activities by the Cubans and the So-
viets.
You will recall the Washington Post expose of that White Paper
detailing what was essentially a mix of fabrications and distortions.
That was followed by the Intelligence Committees being sur-
prised to discover that the authorization they had made with re-
spect to activity vis-a-vis Nicaragua, that is to support logistical ac-
tivity on behalf of a small force of some 500 Contras had grown to
10,000-then 12,000. My understanding is now that we are support-
ing something like 18,000 Contras. At least, that is the number
that appeared this week in the media.
But the committees were surprised, at that point. And then there
was congressional action specifically prohibiting the support of ac-
tivities intended to overthrow the Nicaraguan Government. That
was passed unanimously in this body, was passed by both House
and Senate and signed into law by the President.
And then the administration resorted to the argument that the
Contras were not trying to overthrow the Government, but were
simply trying to interdict arms supplies flowing between Nicaragua
and El Salvador. That claim was made in the face of public decla-
rations by the Contras of their intention and desire to overthrow
the Nicaraguan Government.
Then we discovered that the administration was putting in place
a permanent military facility in Honduras. Leading Senators actu-
ally took it upon themselves to tour the region to find out what
they were not being told by the administration in their briefings
before their own committees.
Then developed the Lebanon situation where we had the admin-
istration accusing people who were calling for a pullout of the
American Marines of "surrender," only to find out that the Presi-
dent had already made the decision to pull the Marines out of Leb-
anon and that he himself had been acting contrary to the advice of
his own military leaders.
And now we have this question of the mining of the harbors.
Again, a surprise to the members of the Intelligence Committees
who have key jurisdiction and responsibility in this area.
My question to you, Mr. Dam, is not only will the administration
undertake a reconsideration of its policy, but also what will the ad-
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36
ministration do to restore credibility in its testimony before com-
mittees of the Congress?
Mr. DAM. Well, sir, in my humble opinion, there were so many
errors in fact in your question, it is hard to deal with it, if I am to
be taken as accepting all of the allegations that you made. In fact,
I disagree with virtually all of them.
I would simply want to report to you that, in case you had not
heard, that the Senate overwhelmingly voted to support a program
in El Salvador; and similarly overwhelmingly voted on the $21 mil-
lion for the additional program.
Mr. WOLPE. Based on their lack of knowing what the administra-
tion was doing.
Mr. DAM. So the statement that somehow the administration is
flying in the face of congressional will is, I think, palpably wrong.
Mr. BARNES. The time of the gentleman has expired. The Chair
recognizes the gentleman from Iowa, Mr. Leach.
Oh, before the gentleman proceeds, the Chair would announce
that the Secretary has agreed to meet with the committee in closed
session at 1:30. So we will go until noon in open session, then break
until 1:30.
The gentleman from Iowa is recognized.
Mr. LEACH. Thank you, Mr. Chairman.
Mr. Secretary, recently, there has been a good deal of debate in
this country on the necessity of having a bipartisan foreign policy
and, frankly, there are some aspects of that which are very attrac-
tive. But the flip side is that the administration must accept some
bipartisan criticism and this is certainly what Senator Goldwater
has articulated.
The only difference I have with Senator Goldwater is the import
he places on being informed as head of the Senate Intelligence
Committee. I think there is breach there that is serious but it is
not the largest issue.
The largest issue we are talking about is the issue of war and
peace and whether this Government wants to obey the rule of law.
In this regard, I am incredulous that the administration will not
speak openly before Congress on the implications of these issues.
It is not enough simply to say that these activities are accounted
for in secret reporting to Congress on covert actions and that they
may be funded by the CIA.
The fact is when you are breaking international law, when you
are committing acts that have to be considered acts of war, you
must come and speak forthrightly before the Congress of the
United States.
Mr. DAM. I hope you will be here this afternoon, Mr. Leach.
Mr. LEACH. I certainly will. But I am saying that you have some
responsibilities to the American public in this regard that are not
trivial.
If Cuba were to mine Miami harbor, I do not think anyone here
would consider that not an act of war and I don't think that the
public of the United States is well served by disingenuous com-
ments that mask issues of war and peace.
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Let me also add that the United States has recently been placed
in the awkward position of vetoing a U.N. Security Council resolu-
tion. In a 13-to-1 vote with even our closest ally, Great Britain, ab-
staining on this issue, the United States found itself isolated from
the international community.
Last week, the United States also tried to assert that the World
Court will not have jurisdiction over this issue for 2 years. And
today as a representative of the administration you are refusing to
speak forthrightly in open committee session of this Congress on
this issue.
Mr. DAM. Mr. Barnes, I really object to this kind of attack. I
mean, I have just agreed to come before this committee and answer
all of these questions--
Mr. LEACH. Of course, in secret session.
Mr. DAM [continuing]. And then to be attacked for refusing to
answer forthrightly. I consider on a personal basis it is objection-
able.
Mr. BARNES. Mr. Secretary, you are certainly at liberty to state
your reasons, and the administration's reasons for your unwilling-
ness and the administration's unwillingness to address these issues
in open session.
In response to the gentleman from Iowa, it is his time. You can
object, certainly, forcefully, to his statements and to his questions,
and you can state your reasons, but if it is the gentleman's time,
the committtee has no control over the gentleman's statements.
Mr. DAM. I can see that.
Mr. SOLOMON. Mr. Chairman, I object to that line of questioning,
too. It is bad enough that we have got these kinds of leaks coming
out whether by Members of Congress or staff, of closed sessions in
this committee. It is a crying shame to force a man to answer here.
Mr. BARNES. The gentleman from New York is out of order.
Mr. LEACH. Mr. Chairman, may I have the courtesy of being ex-
tended an extra minute?
Mr. BARNES. The gentleman will have additional time.
Mr. LEACH. I appreciate that.
Let me just say, as an observer to this process as well as a
Member of this Congress, one is struck by the impression that the
foreign policy of the United States is becoming increasingly elitist
and perhaps even authoritarian, and that the wagons appear to be
drawing tighter and tighter around the White House. Neither the
views of this Congress, nor a decent respect for the opinions of
mankind, as expressed within the premier international organiza-
tion that exists in the world, appear to be taken very seriously.
I would just like to probe a subtlety that has been expressed by
the Secretary.
As I understand it, in response to previous questions, you have
indicated that it is your belief that the U.S. position will prevail in
the World Court and the World Court will not have jurisdiction for
a 2-year period.
But, in the event that the World Court asserts jurisdiction, based
upon the fact that our only prior reservation has a 6-month, not 1
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day, notification provision will the United States accept the juris-
diction of the Court? Second, will the United States accept the de-
termination of the World Court in this issue?
Mr. DAM. Well, I will answer that question for the third time,
Mr. Leach.
We believe we have a very good case. We do not really believe
there is any possible basis upon which the Court could find that it
had jurisdiction.
Certainly, we have great respect for the Court, and we have lots
of incentives for complying with the Court's orders. I would antici-
pate that we would do so, but I am not going to give an ironclad
assurance, certainly without authorization from the President to do
so, that we will under all circumstances, regardless of what hap-
pens, regardless of the context, regardless of the way in which the
issue is presented, at all times and in all ways, comply with all
orders.
I would assume that we would do so, but you are trying to get an
assurance on behalf of the administration. I am simply not in a po-
sition to do so. I can tell you our thinking and our attitude on the
subject.
Mr. LEACH. Well, the point I would like to stress is that you do
represent the administration at this time and what you are saying
is that it might or might not accept the Court's jurisdiction, and
that it might or might not accept the Court's decision. I find that
somewhat--
Mr. DAM. I don't think I am saying that.
Mr. LEACH. You are saying--
Mr. DAM. I don't think that is an accurate summary of what I
said.
Mr. LEACH. Well, you are reserving a caveat, are you not?
Let me make one further comment. This Congress and this com-
mittee have in advance looked at this issue. We are not simply
making a postmortem analysis.
In the Boland-Zablocki bill that came before this committee last
year--
Mr. DAM. Right.
Mr. LEACH [continuing]. This committee inserted language about
activities that relate to the rule of law. Let me read from the com-
mittee report about one of the amendments that was passed,
amendment No. 3.
This committee said, in the committee report:
In adopting this amendment, the committee was particularly concerned with en-
suring that U.S. assistance provided for interdiction activities in international terri-
tory not be used for actions, such as naval blockades, which are not permitted by
international laws.
The point I would like to make is that in advance, this commit-
tee and this House took a very strong stand on types of activities of
this nature, and- that the actions of this administration flout very
definitively the will of the committee as expressed in a resolution it
has passed.
I appreciate the gentleman's time.
Mr. DAM. Is that something that I could respond to? I would like
to say that we are not talking about blockades; that is a totally dif-
ferent subject.
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Mr. BARNES. The Chair recognizes the gentleman from Connecti-
cut, Mr. Gejdenson.
Mr. GEJDENSON. Thank you, Mr. Chairman.
The President has described the government of the Ayatollah
Khomeini as an outlaw nation because it has undertaken a policy
to overthrow the government of Saddam Hussein of Iraq and ap-
parently the President feels that it is none of Iran's business what
kind of government exists in Iraq.
Is that an accurate characterization of the administration's feel-
ings that the Iranians have no right to tell the Iraqis what kind of
government they should have in their country?
Mr. DAM. Well, I think that is taking a very tiny part of a very
large complex problem. The general-we believe that war ought to
be settled. We believe there ought to be a prompt end to it.
Mr. GEJDENSON. And you feel that the President did not go so far
as to state that Iran did not have the right to overthrow the Gov-
ernment if Iraq?
Mr. DAM. I am just not aware of his statement to that effect.
Mr. GEJDENSON. Who made a judgment on that?
Mr. DAM. I don't know whether he did or not. I just don't--
Mr. GEJDENSON. I want to say that I think most members of this
committee feel that way, I think that that is one of the fundamen-
tal problems that we face here as a country that has democratic
institutions that have been reflective of the populist will, adminis-
trations that in the past have tried to do end runs on the law and
have tried to institute policies that run contrary to what our basic
beliefs are, run into trouble.
This administration is running into serious trouble. There may
be legal maneuvers to do an end run on the World Court, and
there may be legal maneuvers to do an end run on the Congress,
but I think you are going to find that they will cost us dearly and
that they will fail as policy in the final analysis.
THE CORFU CHANNEL CASE
Let me ask you a question about the World Court's decision in
the Corfu Channel case.
Mr. DAM. Well, could I just object to the notion that we are
trying to do an end run on the Congress? What are we doing here?
Mr. GEJDENSON. Why, I think if you take a look at the actions of
the administration in support of the Contras in Central America, it
seems that only a blind person, or someone who hasn't taken a
look at the picture at all, would believe that we are really trying to
interdict arms.
If there haven't--
Mr. DAM. You are just making an argument on substance, and,
fortunately, that is not how the Congress has voted.
Mr. GEJDENSON. Well, on substance, the Congress has voted that
the money used for the Contras should not be used for the over-
throw of the Government of--
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Mr. DAM. And the President has made it very clear that we are
not trying to overthrow the Government of Nicaragua, and said so
just last week.
Mr. GEJDENSON. Well, have we had any real successes in inter-
dicting arms? I haven't-I would have thought the administration
would have been before this committee with great caches of arms
that we--
Mr. DAM. I will be glad to address that in this afternoon's closed
session.
Mr. GEJDENSON. Well, I would like to see some.
Let me go back to the Corfu Channel case, where the World
Court in 1949 held that even though the Albanians had not mined
the channel themselves, that they had knowledge of it, and since
they had not warned world shippers and other countries, that they
were liable for the damages that occurred.
Are we going to find ourselves in that position? Since the United
States had previous knowledge of the mining of the Nicaraguan
ports, are we going to end up having American taxpayers liable for
damage to shippers traveling through those ports?
Mr. DAM. Let me point out two distinctions. First of all, that was
an international waterway, straits. We are not talking about
straits. And despite Mr. Studds' speech about the high seas in
which he waxed so elequent, we are not talking about the high seas
either.
Second, the international shipping community was notified. In
fact, the Contras talked about it to everybody who would listen no-
tified Lloyd's of London, and were trying to get people to hear it.
And third, I might point out, one of the questions has to do with
whether the force that is used is lawful use of force. If force is used
lawfully under international law, then there is not civil penalty.
Mr. GEJDENSON. Well then, would you say that the Nicaraguans
would have a legal right, as my colleague from Iowa indicated, to
mine the Gulf of Mexico? Apparently, although it is covert, it is
public knowledge that American dollars are being used by an army
attacking the Nicaraguan territory. As such, do they have a legal
right to use force to protect their territory and mine American har-
bors?
Mr. DAM. There would be a question as to whether they were
lawfully using force. But they would not in any case be permitted
to mine international shipping channels.
Mr. GEJDENSON. But you think that they might be able to mine
the waters within American territory because of our involvement
in Nicaragua, and that that would be a legal action of defense on
the part of the Nicaraguans?
Mr. DAM. No; I do not think so, because I do not see how it would
in any way be proportionate to or related to any possible claim
that they might have even under your set of assumed facts.
Mr. GEJDENSON. Do you think that the Nicaraguans have any
legal justification in considering that the Hondurans are involved
in an act of war by possibly harboring guerrilla forces and support-
ing guerrilla forces that attack Nicaraguan territory?
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Mr. DAM. No.
Mr. GEJDENSON. Do we not consider it to be under normal inter-
national law, an act of war to harbor guerrilla forces to invade an-
other country, that that country then has a legal justification for
reacting to those guerrilla bases and supply lines?
Mr. DAM. Whatever it is that you are positing that the Hondur-
ans do, I think it is a question of whether or not there was lawful
use of force. Whether they may have done something in self-de-
fense, I do not know. But it is a legal question. I do not assume the
answer the way that you do in your question.
Mr. GEJDENSON. But it seems to me that if we use the standards
that we use in other parts of the world, that we are heading for
trouble, both for the United States and for our friends in Central
America. This is a headlong race to escalate the crisis in Central
America-to what gain, I am not quite sure. It seems that the only
thing that we are doing is fortifying the present government in
Nicaragua, and giving them every excuse for the revolution not
being able to fulfill its economic and political pledges. From a mili-
tary perspective we are doomed to failure at tremendous costs.
I think that the administration just does not know how to get out
of here. You are hoping at this point that the Congress cuts off the
funds. You do not have to try to dig your way out of this one, as we
dug our way out of Lebanon.
It is a policy that is locked into an action you took early on, and
you do not know where you are going. I will tell you that as for
this Member of Congress, I cannot figure out where you are going.
Thank you, Mr. Chairman.
Mr. DAM. Just in case there is any misunderstanding, I think
that the administration position in seeking funding is very clear,
and it hardly could be clearer.
Mr. BARNES. We will have time for two more members to ask
questions before we break. When the committee returns, Chairman
Fascell has indicated that those members who have not had an op-
portunity to ask questions in the open session will be the first ones
called upon in the closed session which will convene at 1:30.
The Chair recognizes the gentlelady from Maine.
Ms. SNOWE. Thank you, Mr. Chairman.
Mr. Secretary, as you might note, there is a great deal of frustra-
tion. I certainly share the frustrations of many Members of Con-
gress.
First of all, because in discussion of this issue and the debate
over our policy in support of the Contras in Nicaragua, we have
never really been able to get a straight answer.
In fact, just several weeks ago, I attended a briefing at the White
House, at which you were present at the early part of the meeting,
where the question was asked, exactly what is the nature of our
support of the Contras in Nicaragua? Was it simply to intercept
arms shipments to El Salvador? And the question was never an-
swered.
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I followed up on that, because I was unclear as to exactly what is
our policy. I think that is part of the confusion; that is part of the
concern. No one knows what is going to be the next step.
So I am asking you: If it is mining the ports today, what can we
expect tomorrow? And I think that Congress does have a responsi-
bility. Each and every one of us here has to respond to our con-
stituency.
First the purpose was the interception of arms shipments. But
now the administration has broadened that objective, I gather,
from what I read in the newspapers. But a policy has never been
enunciated by the administration as to exactly what we are doing
in our support of the Contras in Nicaragua.
So I am asking you, what is our policy?
Mr. DAM. Again, we are getting into the problem of what goes in
open session and what goes in closed session. If I may, I would be
glad to answer this question in more detail in the closed session.
But let me answer it in a general way.
I have stated here this morning what our policy objectives with
regard to Nicaragua are. With respect to covert action in general,
the objectives of covert action tend to be quite specific. Certainly
more specific than general U.S. foreign policy.
With regard to the objectives of covert action, that is a question
that is discussed in detail with the Intelligence Committees, and
certainly all of their questions are fully answered. Now I cannot
really go beyond that, except to say that certainly in the House In-
telligence Committee, the questions are very penetrating, very
good, by excellent members who pursue leads and ask all kinds of
questions.
I am not by implication criticizing the Senate, quite the contrary.
I am just saying that it is appropriate since we are in the House to
speak about the House; that is our forum.
ADMINISTRATION'S POLICY
Ms. SNOWE. Well, I can tell you that there is indeed a big ques-
tion mark as to what the administration's policy is in Nicaragua by
a number of Members, including Republicans. That is the obvious
indication of the Senate action of last evening and probably we can
expect the same here in the House.
Does the administration view, for example, Congress' authoriza-
tion of funds for covert activity as open license to take any action
the administration deems necessary?
Mr. DAM. Of course not.
Ms. SNOWE. So in other words, your interpretation, the adminis-
tration's interpretation, of support of covert aid does not fly in the
face of congressional will by mining the ports in Nicaragua?
Mr. DAM. I am sorry, would you ask the question again? I am not
sure that I got all of the implications.
Ms. SNOwE. Is it your interpretation of the administration's posi-
tion that when the Congress provides covert aid, that Congress sup-
ports mining the ports in Nicaragua?
Mr. DAM. I have not said that. What I have said is that there is a
system which the Congress has set up which we are trying to
follow.
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Ms. SNOWE. The question then that I am getting at is this: If
Congress provides funds for covert aid, and I just asked the ques-
tion, does that mean that the administration can take any action it
deems necessary, and you said yes.
Mr. DAM. I said no.
Mr. BEREUTER. Would the gentlelady yield?
Ms. SNOWE. Yes.
Mr. BEREUTER. Am I correct in assuming that one of the policies
of the administration is to interdict arms, is that correct, yes or no?
Mr. DAM. Certainly, that is one of our policies.
Mr. BEREUTER. The second question, are these reliable sources
that I read in the front page of all of today's papers from the ad-
ministration correct in saying that there are massive arms ship-
ments coming through the ports of Nicaragua?
Mr. DAM. There are certainly very substantial shipments, yes.
Mr. BEREUTER. So would you consider the mining then helping to
interdict arms to some degree?
Mr. DAM. I am not going to talk about mining. But let me just
say in a general way, the weapons have to get into Nicaragua.
Mr. BEREUTER. One more question, is there really--
Ms. SNOWE. Could I get back my time?
Mr. BEREUTER. Is there any difference between using grenades,
or M-16's, or mines? I am not certain that I see the difference.
Mr. BARNES. The gentlelady had reclaimed her time.
Ms. SNOWE. So that gets back to my original question.
If that is the case, then Congress has every reason to be con-
cerned in providing additional funds in support of the administra-
tion's policy in Nicaragua, because we do not know what to expect?
Mr. DAM. Is that a question?
Ms. SNOWE. Yes.
Mr. DAM. We have a system. We are seeking, as you know, $21
million. We have testified, I have testified, many members of the
administration have testified on this score. There was extensive
debate in the Senate, and the vote was overwhelming, overwhelm-
ing. Now you have an opportunity for a vote in the House.
But to suggest that somehow we are flying in the face of the will
of the Congress, I think is just political argument. It has nothing to
do with our--
Ms. SNOWE. Why do you say that? That is what I am not clear
on. Why do you say that it does not fly in the face of congressional
will?
Mr. DAM. I beg your pardon.
Ms. SNOWE. Why do you say that?
Mr. DAM. Because first of all, Congress voted--
Ms. SNOWE. Because I am not clear.
Mr. DAM. Congress voted last fall its support.
Ms. SNOWE: Exactly.
Mr. DAM. Yes. And there is now a proposal before the House, if
conferees are ever appointed, to have a vote in the House on this
subject. I do not see why people are protesting about the opportuni-
ty to vote on the subject.
Mr. BARNES. The time of the gentlelady has expired.
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Ms. SNOWE. Well, can I just get this clear, because I do not think
that it is clear. I asked you the original question about congression-
al support of covert activity.
Mr. DAM. Yes.
Ms. SNOWE. OK.
Mr. DAM. There is support for intelligence activity in the Con-
gress.
Ms. SNOWE. So does that mean that the administration interprets
that as supporting mining of the ports? Because are you now
saying that your action does not fly in the face of congressional
will.
Mr. DAM. As I have explained, I will be glad to talk about intelli-
gence matters this afternoon. But so far as the general proposition
is concerned, no, the administration does not believe that simply
because money is appropriated, that anything goes.
We have a system by which we relate to the Intelligence Com-
mittees which the Congress itself has established. We are just
trying to follow the rules.
Mr. BARNES. The time of the gentlelady have expired. The Chair
recognizes the gentleman from New York, Mr. Weiss.
Mr. WEISS. Thank you very much, Mr. Chairman.
Without wanting to repeat statements or testimony already gone
over, let me just identify myself with the statements expressed by
the gentleman from Massachusetts, Mr. Studds, and the gentleman
from Iowa, Mr. Leach.
Just as a prefatory comment, we engage in discussions in these
sessions in very formal language. It is very difficult for us really to
comment as it is without seeming to breach the language of diplo-
macy that we all engage in in these sessions.
Let me say for myself, Mr. Secretary, that I find that your testi-
mony is such a conglomeration of distortions and evasions that it
borders on your not telling the truth, even though every specific
line that you give may in fact be factual.
Mr. DAM. Thank you very much.
Mr. WEISS. You are very welcome. Let me ask a couple of specif-
ics based on your testimony in your opening statement. You had
said that there were, I think, three or four specifics that we would
expect of the Nicaraguan Government before we would be satisfied.
The first one you mentioned was that they would have to break
off economic and military relations with Cuba and the Soviet
Union.
Is that an accurate statement or restatement of your position?
Mr. DAM. Let me get the exact formulation.
Mr. WEISS. Please.
Mr. DAM. Because the exact formulation is important. This is a
policy statement. This has nothing to do with conditions related to
covert action.
Mr. WEISS. Just restate it for me.
Mr. DAM. That if they sever their military and security ties to
Cuba and the Soviet bloc-we have not referred to economic and
not to diplomatic ties.
Mr. WEISS. OK. And unless and until they do that, what is our
policy?
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Mr. DAM. Unless and until they do that, we do not think that
they are complying with the document of objectives that they have
signed. We would continue to seek implementation--
Mr. WEISS. Mr. Dam--
DOCUMENT OF OBJECTIVES
Mr. DAM. I answer the question. Of the document of objectives.
Mr. WEISS. The document of objectives at the time of successful
replacement of the Somoza Government?
Mr. DAM. No; this is the negotiated document of objectives ar-
rived at in the Contadora process last September, I believe, the 21
objectives.
Mr. WEISS. Well, that is a process that is moving forward. You
are saying that as far as the Nicaraguan Government is concerned,
they have to meet those objectives right now, or the United States
feels free to harass or worse, is that what you are saying?
Mr. DAM. No; I did not say that. I said that we have policy objec-
tives. I did not say anything about covert action. You were quoting
from what I said in my statement. I am trying to explain it. That is
our policy objective, to see Nicaragua sever its military and securi-
ty ties to Cuba and the Soviet Union.
Perhaps you feel differently. Perhaps you would like to see them
reinforced. But our objective is to see them severed. That is very
simple and straightforward.
Mr. Weiss. What I would like to understand is what justification
the United States of America has to tell any other sovereign nation
as to what kind of military or security ties it will have to any other
nation. Let me go on to my next question.
Mr. DAM. Because we are trying to seek a regional solution to
the problems of Central America. And that is sort of fundamental,
it seems to me.
Mr. WEISS. Well, it may be fundamental to you. Let me ask the
next question.
Mr. DAM. We are not asking them to align themselves with us.
We are asking them to not be military allies of Cuba and the
Soviet Union.
Mr. WEISS. OK.
Mr. DAM. Now, that seems to me to be a reasonable foreign
policy position. In fact, I would be very surprised if there were very
many people who believe that they should be allies of the Soviet
Union and Cuba.
Mr. WEISS. Mr. Secretary, it seems to me that if you live in a
world of sovereign nations, that we are very hard put as one sover-
eign nation to determine for other sovereign nations who their
friends and allies will be, militarily or otherwise. But let me go on
to my next question.
Was mining in self-defense?
You had said in your statement that the mining-this is a hypo-
thetical legal statement-mining or actions such as mining are jus-
tified by the charter of the United Nations on the basis of self-de-
fense. I am paraphrasing, but I assume that that is the position.
Mr. DAM. Collective self-defense--
Mr. WEISS. OK.
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,ip~IR
Mr. DAM [continuing]. Is a ground for the use of force.
Mr. WEISS. Mr. Dam, in my limited time, I would like to use it
myself rather than have you restate the obvious. I assume that
that self-defense then presupposes there to be either a participation
by the nation that is defending itself or a request by that nation of
some of its friends or allies to provide additional defense.
Now are you telling us that in the instance of the mining of the
ports and harbors of Nicaragua, that we are assuming that we are
defending some other country, or that some other country has, in
fact, asked us to undertake the particular action by way of defend-
ing them?
Mr. DAM. Well, certainly, our efforts to defend El Salvador have
been supported by the Congress and are well known. With regard
to other countries, we are certainly concerned about their security.
And I would be glad to answer that question more specifically in
the closed session this afternoon.
Mr. WEISS. Would you, as a general proposition, acknowledge
that since we are not the parties at war with Nicaragua, that since
we are not defending ourselves, that there has to be the defense of
some other country involved in order for us to justify the mining?
Mr. DAM. I am sorry, I did not get the question part.
Mr. BARNES. Would the gentleman from New York yield to the
gentleman from Florida to put a question on the record before the
meeting is over?
Mr. WEISS. Of course, I will.
Mr. SMITH. Thank you. I appreciate the gentleman yielding.
Mr. Dam, there have been published reports in the newspapers
that approximately 2,000 and possibly more Nicaraguans or others
have been trained in Florida and equipped, and sent to Nicaragua.
I would like you to have information this afternoon about that. I
intend to pursue the line. And I am giving you whatever notice
there is between now and the time we come back at the closed
briefing. But I would like very much to have information with ref-
erence to that as it is violation of both Federal and the State of
Florida law. Thank you.
Mr. BARNES. The time of the gentleman from New York has ex-
pired. The committee will reconvene in closed session at 1:30.
Chairman Fascell has indicated that after the closed session, the
committee will go into open session to take up House Concurrent
Resolution 290, which deals with this matter.
[Whereupon, at 12:04, the committee recessed, to reconvene at
1:30 p.m. in closed session.]
The committee met, in open markup session in room 2172, Ray-
burn House Office Building, Hon. Dante B. Fascell (chairman) pre-
siding.
Chairman FASCELL. The committee will come to order.
We meet this afternoon to consider House Concurrent Resolution
290, a resolution expressing the sense of the Congress that no ap-
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propriated funds shall be used for the purpose of mining the ports
or the territorial waters of Nicaragua. i
The bill is a straightforward expression of congressional disap-
proval of the so-called covert laying of mines in Nicaraguan ports
and territorial waters, introduced by our colleague, Mr. Barnes, the
chairman of the Western Hemisphere Affairs Subcommittee, and it
is so short that it is easily understood.
We have heard from the administration. I think all of us under-
stand the difficulty involved here on the question of the decision
with respect to modifying U.S. accession to the jurisdiction of the
International Court of Justice, and also on matters which could not
be discussed in open session.
Mr. BROOMFIELD. Mr. Chairman.
Chairman FASCELL. Mr. Broomfield.
Mr. BROOMFIELD. Could I ask a parliamentary question?
Chairman FASCELL. Certainly.
Mr. BROOMFIELD. I wonder if the chairman would explain to
those of us on the minority side what our rights are under the pro-
cedure.
It is my understanding that it is your desire anyway not only to
consider this resolution today but to go to the Rules Committee to-
night to have it considered on the floor tomorrow. I would like to
know what is the rush in getting this through? It is just a non-
binding resolution. What is the rush in getting it through Congress
tomorrow? The points have been made. The administration has
spoken. Do we have any time to file minority report?
Chairman FASCELL. I will say to my colleague that it is a ques-
tion properly raised. I won't presume to speak for all the members
of the committee, but I will speak for myself, and say that I think
it is important for the Congress, one way or another, to express its
opinion on matters now which have been the focal point of a tre-
mendous amount of interest in this country and abroad. I have had
many Members of Congress express to me their desire to vote on
this matter in the House before the Easter recess in view of the
fact that the other body has acted expeditiously
Additionally, it would not be appropriate for us, since we are on
the eve of Easter recess, to go back to our districts without having
had a vote on this issue in the House itself, and since that only
leaves us tomorrow, it is absolutely essential, in order to get the
House to act on the resolution and get the expression of the House
on this matter, to go to the Rules Committee in order to get on the
floor tomorrow. That is all this involves.
That means, of course, that in order to do this we are going to
take some unusual procedures, such as going to the Rules Commit-
tee, and not filing a report.
For those who are opposed to this resolution, the debate will
have to be carried out on the House floor.
Mr. BROOMFIELD. Mr. Chairman, I am not opposed to the resolu-
tion you have before us. It is just that I can't understand the un-
usual rush in getting this through, other than it must be for politi-
cal reasons. I think it is unfortunate that this matter is being put
into that arena.
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.tI
We have already been told by the administration that there is
not any mining going on at the present time. They have got the
message at the White House, and certainly the vote in the Senate,
84 to 12 was very convincing.
It seems to me that it won't hurt to delay this until after we
come back from the recess.
I indicate again that I am not opposed to what you have in the
resolution, a nonbinding resolution. I just can't understand the ur-
gency in getting this through at this time.
Chairman FASCELL. I will say to my colleague that I respect his
opinion and his feelings, both in a personal sense and in a political
sense, but I am here to tell you that the other body has acted.
Members of this committee have had a chance to stand up and be
counted on this issue, and a great many Members of the House
want the opportunity to vote yes or no on this matter whether the
mining continues or whether the administration has gotten the
message, and they want to do it before the Easter recess, because
this is a matter of such importance that they want to be registered
on this issue.
That is the justification for this expedited procedure. It may not
satisfy you, but that is the reason we are moving as rapidly as we
have. We have been in session on this issue all day. Everyone, I
think, has pretty much made up his mind on what he wants to do.
Yes, I will agree with the minority that in the normal course of
events, we would like to have had the time to give the minority the
full right to write whatever it wants in terms of disagreement with
the majority position of this issue.
Suffice it to say that if we get a rule, both sides will have an op-
portunity to express their feelings on the subject, procedurally and
substantively, when we get to the floor. Otherwise, in my judg-
ment, we will look very foolish if this is put off for 2 weeks.
Is there any other discussion? The clerk will report the resolu-
tion
Mr. BRADY [reading]:
House Concurrent Resolution 290, concurrent resolution expressing the sense of
the Congress that no appropriated funds shall be used for the purpose of mining the
ports or territorial waters of Nicaragua.
Chairman FASCELL. The sponsor of the resolution, Mr. Barnes, is
recognized for 5 minutes in support of his resolution.
Mr. BARNES. Thank you, Mr. Chairman.
I urge an aye vote.
Chairman FASCELL. Is there any further discussion?
Mr. SOLOMON. Mr. Chairman.
Chairman FASCELL. Mr. Solomon is recognized for 5 minutes.
Mr. SOLOMON. Mr. Chairman, I am not surprised that Mr. Barnes
only had three words to say. He had enough to say earlier when
the session was open, when all the political rhetoric was flowing,
but I want to take some exception with some of the things that he
had to say.
Chairman Barnes, in his opening partisan statement said, among
other things, that in his travels abroad he found no respect for our
President. That is funny. I have traveled abroad in the same areas,
and it is strange that I would find just the opposite-a great deal of
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respect for our President Ronald Reagan, especially compared to
what we have had in the past under other Democratic and Republi-
can Presidents.
I think that the crux of this resolution can be explained by a
recent questionnaire that I just received back from over 20,000 of
my constituents, in which I asked the question, "Is President
Reagan doing a good job?" You know, 71 percent of those people
said yes.
Then I asked a second question: "Is Congress as a whole doing a
good job?" and do you know what the answer was? Seventy percent
said no. They said no because they don't think that we ought to be
participating in the kind of political gimmickry that we are in-
volved in today.
I would hope that the resolution would be defeated.
Mr. GE.DENSON. Move the resolution.
Chairman FASCELL. Any further discussion? All those in favor of
the resolution, signify by saying "aye." All those opposed, "no."
Mr. STUDDS. Mr. Chairman, I ask for a recorded vote.
Chairman FASCELL. A recorded vote is demanded. All those in
favor of taking this vote by a rollcall raise your right hand.
Evidently a sufficient number. The clerk will call the roll.
Mr. BRADY. Chairman Fascell.
Chairman FASCELL. Aye.
Mr. BRADY. Mr. Hamilton.
[No response.]
Mr. BRADY. Mr. Yatron.
Mr. YATRON. Aye.
Mr. BRADY. Mr. Solarz.
Mr. SOLARZ. Aye.
Mr. BRADY. Mr. Bonker.
Mr. BONKER. Aye.
Mr. BRADY. Mr. Studds.
Mr. STUDDS. Aye.
Mr. Brady. Mr. Ireland.
Mr. Ireland. Aye.
Mr. BRADY. Mr. Mica.
[No response.]
Mr. BRADY. Mr. Barnes.
Mr. BARNES. Aye.
Mr. BRADY. Mr. Wolpe.
Mr. WOLPE. Aye.
Mr. BRADY. Mr. Crockett.
Mr. CROCKETT. Aye.
Mr. BRADY. Mr. Gejdenson.
Mr. GEJDENSON. Aye.
Mr. BRADY. Mr. Dymally.
[No response.]
Mr. BRADY. Mr. Lantos.
[No response.]
Mr. BRADY. Mr. Kostmayer.
Mr. KOSTMAYER. Aye.
Mr. BRADY. Mr. Torricelli.
Mr. TORRICELLI. Aye.
Mr. BRADY. Mr. Smith.
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Mr. SMITH. Aye.
Mr.- BRADY. Mr. Berman.
Mr. BERMAN. Aye.
Mr. BRADY. Mr. Reid.
[No response.]
Mr. BRADY. Mr. Levine.
Mr. LEVINE. Aye.
Mr. BRADY. Mr. Feighan.
Mr. FEIGHAN. Aye.
Mr. BRADY. Mr. Weiss.
Mr. WEISS. Aye.
Mr. BRADY. Mr. Ackerman.
[No response.]
Mr. BRADY. Mr. Garcia.
[No response.]
Mr. BRADY. Mr. Broomfield.
Mr. BROOMFIELD. Aye.
Mr. BRADY. Mr. Winn.
Mr. WINN. Aye.
Mr. BRADY. Mr. Gilman.
Mr. GILMAN. Aye.
Mr. BRADY. Mr. Lagomarsino.
[No response.]
Mr. BRADY. Mr. Pritchard.
[No response.]
Mr. BRADY. Mr. Leach.
Mr. LEACH. Aye.
Mr. BRADY. Mr. Roth.
[No response.]
Mr. BRADY. Ms. Snowe.
Ms. SNOWE. Aye
Mr. BRADY. Mr. Hyde.
[No response.]
Mr. BRADY. Mr. Solomon.
Mr. SOLOMON. No.
Mr. BRADY. Mr. Bereuter.
[No response.]
Mr. BRADY. Mr. Siljander.
[No response.]
Mr. BRADY. Mr. Zschau.
Mr. ZSCHAU. Aye.
Chairman FASCELL. A unanimous-consent request by the gentle-
man from Michigan.
Mr. BROOMFIELD. Mr. Chairman, I would like to have the time
left open for other members to vote on this, whatever time you
would suggest in view of the Rules Committee and so forth.
Chairman FASCELL. Until such time as we go to the Rules Com-
mittee, I have no objection, Mr. Broomfield.
The request is that the roll be left open to allow other members
to vote, and we will close it off prior to the time we go to the Rules
Committee, if there is no objection.
Mr. SOLARZ. When are you going to Rules?
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51
Chairman FASCELL. We are trying to find out. The last I heard
was 5 o'clock, but it will be 5:15 or 5:30. We are checking on it
right now.
Is there any objection to the request?
Hearing none, it is so ordered. We will see you at the Rules Com-
mittee.
[Whereupon, at 4:50 p.m., the committee was adjourned.]
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APPENDIX 1
STATEMENT SUBMITTED BY THE DEPARTMENT OF STATE REGARDING
THE NOTIFICATION TO THE SECRETARY GENERAL OF THE UNITED
NATIONS OF A TEMPORARY AND LIMITED MODIFICATION OF THE
SCOPE OF THE U.S. ACCEPTANCE OF THE COMPULSORY JURISDICTION
OF THE INTERNATIONAL COURT OF JUSTICE IN THE HAGUE
The United States-has notified the Secretary General of the
United Nations of a temporary and limited modification of the
scope of the U.S. acceptance of the compulsory jurisdiction of
the International Court of Justice in the Hague. The
notification, effective april 6, provides that the Court's
compulsory jurisdiction shall not apply to the united states
with respect to disputes with any Central American state or any
dispute arising out of or related to events in Central America,
for a period of two years.
Similar action has been taken by a number of countries in
the past, among them Australia, India and the United Kingdom.
In addition, a large number of countries have not accepted the
compulsory jurisdiction of the ICJ at all -- France, Italy, the
Federal Republic of Germany, Spain, the Soviet Union and other
communist countries, to name only a few. Many other countries
have accepted ICJ jurisdiction, but with many more reservations
than the United States. The United States has long been active
in its support for the Court, and its readiness to make full
use of the Court in the Iran Hostages case and the now-pending
Gulf of Maine case clearly demonstrate this longstanding
commitment.
This step has been taken to preclude the Court's being
misused to divert attention from the real issues in the region
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and to disrupt'the ongoing regional peace process by protracted
litigation, of claims and counterclaims. We believe that, as
evidenced by their appeal to the United Nations Security
.Council, recent Nicaraguan behavior has shown a lack of serious
interest in addressing regional issues or the Contadora
discussions. We do not wish to see the Court abused as a forum
for furthering a propaganda campaign. The parties to the
Contadora process can determine for themselves in what respect
they wish to submit regional issues to adjudication or other
forms of dispute resolution.
The regional peace process, while slow, has achieved
notable successes. In agreeing to the 21 objectives last
September, the parties set forth an agreed framework for
continuing and completing their efforts to achieve a
comprehensive regional peace dealing with the interrelated
political, security, social and economic problems of the
region. This work has recently entered a stage involving
.issues of both technical and political difficulty. While this
is the point at which the greatest attention and commitment to
that work is required, Nicaragua is regrettably considering
action to attempt to divert attention from its failure to
address those issues seriously by staging propaganda
spectaculars in other fora. By our action we served notice
that we do not intend to cooperate with this plan, or to permit
the Court.to be misused in that manner.
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TEXT OF SECRETARY OF STATE'S NOTE TO U.N. SECRETARY GENERAL
PEREZ DE CUELLAR, DELIVERED APRIL 6. 1984.
I have the honor on behalf of the Government of the United
States of America to refer to the Declaration of my Government
of August 26, 1946, concerning the acceptance by the United
States of America of the compulsory jurisdiction of the
International Court of Justice, and to state 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.
[signed] George P. Shultz
Secretary of State of the United States of America.
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2!
26 VIII 46.
I, Harry S. Truman, President of the United States of America,
declare on behalf of the United States of America, under Article 36,
paragraph 2, of the Statute of the International Court of Justice, and
in accordance with the Resolution of 2 August 1946 of the Senate
of the United States of America (two-thirds of the Senators present
concurring therein), that the United States of America recognizes as
compulsory ipso facto and without special agreement, in relation to
any other State accepting the same obligation, the jurisdiction of the
International Court of Justice in all legal disputes hereafter arising
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;
Provided, that this declaration shall not apply to-
(a) disputes the solution of which the parties shall entrust to other
tribunals by virtue of agreements already in existence or which
may be concluded in the future; or
(b) disputes with regard to matters which are essentially within the
domestic jurisdiction of the United States of America as determined
by the United States of America; or
(c) 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; and
Provided further, that 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.
Done at Washington this fourteenth day of August 1946.
(Signed) Harry S. TAus w.
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INTERNATIONAL
COURT OF JUSTICE
Statute of the International Court ci jusuee
annexed to the Charter of the United
Nations. All Members of the United Nations
are ipw fans pmies to the Statue (article 93.
UN Charter).
59 Stu. 1055; TS 995; S Ile.arle 1153.
In addition, the following cotmnies not
members of the UN have become parties to
the Statute pursuant to resolutions adopted
by the General Aa.emMy:
Liechtenstein (51 UNTS 115)?
San Marino (196 UNTS 295)
Switzerland (17 UNTS )11)
Countries which have accepted the
jtrbdietiorn of the International
Cam of Justice under article 36 of the
Statute of the Court (59 Stat.1055; TS 993);
Australia'
Austria'
Aarbodos' .
Bdg-?n
eoswana'
caaad.n
Colombia'
costa Rica
Dessmark'
comimcan Rep.'
Ply .d.0
Fula nd'
Gambia. That
Haiti
Ha ndures'
ladle'
braes'
Kamya'
Lrberiat
Malta
Matsuda'
Mexico'
Nether ands'
New Zealand'
Nicaragua
Niferial
-~ray'
pia
Panama'
nwippirml
t'N'
Somalian
smbn'
Swwaaband'
Sweden'
Switzerland'
Togo'
Uganda'
United Kingdom'
United States' I
Uruguay
NOTES:
' With conditiau.
Declaration signed by the President
August 14.1946(61 Stat.1215; TIAS 1598; 4
Dean: 140; 1 UNTS 9).
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Exam les.of Modification of Acceptance of Co ulso
Jurisdiction to Avoi Adiu ication
1. INDIA (1956) To avoid an application by Portugal
concerning rights of passage over Indian territory, India
modified one reservation from 'disputes with regard to
questions which by international law fall exclusively within
the jurisdiction of India' to 'matters which are essentially
witin the domestic jurisdiction of India as determined by the
Government of India.' (1955-561 I.C.J. Yearbook at 186-871
11953-541 I.C.J. Yearbook at 216 (former reservation)$ Waldock,
Decline of the Optional Clause, 32 Brit. Y.B. Int'l L. 244, 268
(1955-56).
2. UNITED 9INGDON (1955). In October 1955 the U.K. terminated
a declaration issued five months previously and substituted a
new one containing a new reservation excluding 'disputes in
respect of which arbitral or judicial proceedings are taking,
or have taken, place, with any State which, at the data of the
commencement of the proceedings, has not itself accepted the
compulsory jurisdiction of the (ICJ).' This was in response to
the breakdown of an arbitration with Saudi Arabia due to Saudi
bribery of potential witnesses. 11955-561 Z.C.J. Yearbook at
185, Waldock, supra, at 268.
3. AUSTRALIA (1954). In 1954, to avoid a Japanese application
to the ICJ on rights to pearl fisheries off the Australian
coast, Australia submitted a new declaration excluding 1.
'disputes arising out of or concerning jurisdiction'or rights
claimed or exercised by Australia . in restpect of the
continental shelf of Australia; . . in respec of the natural
resources of the sea-bed and subsoil of that continental shelf,
including the products of sedentary fisheries; or in respect of
Australian waters . . . being jurisdiction or rights claimed or
exercised in respect of those waters . . , except a dispute in
relation to which the parties have first agreed upon a modus
vivendi pending the final decision of the Court on the
dispute.' (1953-543 I.C.J. Yearbook at 210; Waldock, supra, at
267-68.
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98TH CONGRESS
2D SESSION
Mr. BARNES submitted the following concurrent resolution; which
was referred to jointly to the Committees on Foreign Affairs
and Intelligence
Expressing the sense of the Congress that no appropriated funds
shall be used for the purpose of mining the ports or
territorial waters of Nicaragua.
1 Resolved by the House of Representatives (the Senate
is
2 concurring), That it^the sense of the Congress that no funds
3 heretofore or hereafter appropriated in any Act of Congress
4 shall be obligated or expended for the purpose of planning,
5 directing, executing, or supporting the mining of the ports
6 or territorial waters of Nicaragua.
O
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