POSITION OF THE U.S. REGARDING NICARAGUA'S WORLD COURT CASE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00423R000300240022-3
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 16
• Document Creation Date: December 22, 2016
• Document Release Date: October 1, 2010
• Sequence Number: 22
• Publication Date: December 27, 1984
• Content Type: MEMO

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Office of the Deputy Director for Intelligence
28 December 1984
NOTE FOR: Executive Secretary
Jay,
The General Counsel's recommendations are fine
with me as far as they go. I have an additional
suggestion, however.
On page 3 of the proposed State Department
public statement we should delete the second full
paragraph that begins "In addition." This paragraph
raises an issue that our critics will seize on and
it detracts from what is otherwise a convincing
political/legal argument.
The truth is, the alleged evidence referred
to in this paragraph is not as voluminous or
convincing as we would like, and resting our case
on this contention is likely simply to complicate
further our life with Congress. Additionally,
while the rest of the US argument keeps us
properly on the offensive, this unnecessary
paragraph makes us sound defensive and like
we are grasping for an additional rationale.
Richard Kerr
Associate Deputy Director for Intelligence
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 NATIONAL SCURITY COUNCIL
wAOMuwTON. D.C. sows
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VIA LDX
9326
Executive Registry
84- 10413
December 27, 1984
MEMORANDUM FOR COLONEL R. J. AFFOURTIT
Executive Secretary
Department of Defer{se
RONALD L. BLUNT rI
Special Assistant to the Attorney General
Department of Justce
?
JOHN H. RIXSE
Executive Secretar
Central Intelligence'Agenc.y
SI.III,TECT: Position of the U.~. Regarding Nicaragua's
Attached is the State recommendat on, including a draft
o
announcement, for the U.S. position on the pending case brought
by Nicaragua in the InternationalCourt of Justice. Please
provide your comments by noon on December. Thank you. (S)
I -
cc: The Vice President
Fred Fielding
Charles Hill
Robert M. Kimmitt
Executive Secretary
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World Court Case ( )
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THE SECRETARY OF STATE
WASHIN 8~'
ENSITIVE
December 26, 1984
MEMORANDUM TOR: TAE PRESIDENT
From: George P. S)ultz
-tub ect: Nicaragua Wokld Court Case
j
'we must decide what position tc adopt regarding Nicaragua's
pending case against the United States in the International
Court of Justice (ICJ).
BACKGROUND
You will.recall that Nicaragua filed suit in April,
alleging that the U.S. was engaged I in military activities
(mining Nicaragua's harbors and supporting the Contras) that
Nicaragua argued were in violation of the U.N. Charter and
international law. We argued that the Court does. not have
jurisdiction over this issue and that such matters were
political in nature and thus inappropriate for judicial
resolution. In late November, the Court decided that it has
jurisdiction and competence to hear Nicaragua's claims. This
decision appears to be motivated more by politics than law and
indicates that the U.S. will have difficulty receiving a fair
hearing on the merits.
OPTIONS
We have two basic options, neither of which is appealing.
First, we can remain in the case (under protest) 'and defend to
the hilt the legality of our Central American policy. Second,
we can with raw from the case now -- although the case will in
any event g forward without us.
Under both options, we are almost certain to lose the
case. If we stay and fight, the case should take two years or
more. IL we leave, we can probably expect a judgment during
1985. Under both options, we will eventually have to decide
whether to refuse to comply with any adverse judgment that we
see as contrary to vital national interests.
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DECL:OADR
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Regardless of the option chosen, we should move now to
clarify our 1946 acceptance of the ICJ's compulsory
jurisdiction so as to explicitly exclude cases of this sort in
the future. (The clarification would, for example, exclude all
cases involving "hostilities" or "resort to collective
self-defense".) Opponents will ar~ue that any clarification
now is an admission that the ICJ did indeed have jurisdiction
in'this case. However, such a clafitication would formalise
_,.wbat we have asserted all along --.that the ICJ was never
Intended to be the arbiter'of armed-conflicts.
The question remains, however1jhow best to minimise our
losses in a no-win situation in t s case. The main pros and
cons are as followss
0
Option Is Stay and fight:
Might appear contrary to our position that the Court
is not the proper place to deal with Nicaragua's
accusations.
SFrJRFT
Avoids a domestic contro rsy that could complicate
chances for Contra funds .
Confirms' traditional U.S.I commitment to the rule of
law. -
Allows us to present our political case against
Nicaragua both inside and outside the courtroom.
May allow us to mitigate the Court's judgment (i.e.,
limit an award of damages to Nicaragua and affect the
terms of any injunction issued against us).
Political change in Central America. in next two years
could favorably affect the case, or perhaps make it
moot.
Will be hard to make ourlecase because much of our best
evidence is sensitive intelligence, and because El
Salvador and Honduras have not yet agreed to-join-us
before the Court. -
We may have to defy the Court's judgment after we
lose. Having participated on the merits of the case,
we may look more like sore losers.
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0tliKtI
Option 2: Walk away from the case now (attached is
,cont ngency press statement )s
,
- Would be affirming that ye will not participate in
e proceedings in which a Court judgment might compromise
the principle of collect ve self-defense and our veto
in the Security Council.!
i
Refusing to participate may ultimately be more
defensible than if we defied the Court only after we
participated and lost.
Would avoid the difficul ies*in making our case (e.g.,
intelligence evidence; participation of El Salvador
and Honduras). I
Would be consistent with the clarification of our
acceptance of ICJ's compulsory jurisdiction and our
position that this type of case involves political
questions that are not appropriate for judicial
resolution.
Domestic controversy would harm our chances for
renewed Contra funding.
M ght appear inconsistent with our efforts to get
o hers (Libya, Iran) to respect rule of law.
Will be construed by many'as an admission that our
Central American'policy.violates international law.
Congressional and media criticism will 'shift focus
onto our conduct rather than Nicaragua's. (The case
will proceed without us, with Nicaragua scoring
propaganda points against an empty U.S. chair in the
courtroom.)
U.S. will lose opportunity to shape and perhaps lessen
scope of adverse result.
DI SCUS9SON
The strongest immediate consideration is what hurts or
helps our Central American policy. From that perspective,
walking out now would complicate our efforts to secure Contra
funding and raise a new controversy that diverts attention from
the real issues in Central America.
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V a._ V S III.. 1
,The long-term and ultimately sabre significant issue,
however, involves the future of the world Court and the
perception of the United States a committed to the rule of law
in,international affairs.
*The U.S. has long been in the forefront of those advocating
the extension and strengthening o international law and
jnstitutionalised structures of j st.ice, including recourse to
Ever since the earliest days of the ICJ, a large and
legitimate body of American opinion has expressed deep concern
the ICJ in appropriate cases. Weve ourselves used the Court
to good effect in'the Iran hostage and Gulf of Maine cases. In
addition, we have spoken out firmly in support of the rule of
law in speeches. statements, and Official declarations to great
effect. Many peoples around the orld look to us as a source
of hope in the commitment to the cause of justice under law.
that a world court would inevitably encroach upon our national
sovereignty and might address political questions that are not
appropriate for judicial resolution. The present case, which
involves issues of collective security and self-defense.
crosses the threshold of what we should accept and amounts to a
circumvention of the Security Council and our veto.
Second. there is a serious concern that the U.S. commitment
to the rule of law is, in this case, being exploited by those
for whom law is not a standard but a tool of political systems
which are dministered in terms of organized or arbitrary power
and to who our concept of due process and justice mean little
or nothing indeed, two-thirds of the ICJ judges come from
nations that do not accept the Court's compulsory jurisdiction
at all, thereby avoiding being held to a process that these
judges would hold us to.
Finally, if we were to defy the Court after having
participated in the case on the merits and lost, our commitment
to the rule of law might suffer even more damage. Also, the
Court's conduct in this case suggests that it is becoming
increasingly politicized. If so, our action now may serve as a
useful warning to the Court and hopefully forestall any such
trend. The rule of law would be weakened if the Court were to
address political questions that are not appropriate for
judicial resolution.
RECOMMENDATION
Given the near certainty that we will not get a fair
hearing in this case, we should walk out now and clarify that
we will not accept the Court's jurisdiction in any future case
of this nature. Any defiance of the ICJ after we had
1) ET
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participated in a full hearing of Ithe issues and lost would be
harder to defend than making clea in advance that we regard
the entire proceeding as illegitimate. A draft public
announcement of our position is agtached.
Enclosure - 1
as stated
SECIRET
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US withdrawal from the proceedings Initiated
Nicaragua in the International Court of Justice
t
The United States has consistently taken the position that
the proceedings initiated by Nicaragua in the International
Court of Justice are a misuse df the Court for political
purposes and that the Court lacks jurisdiction and competence
over such a case. The Court's decision of November 26, 1964,
that it has jurisdiction is co trary to law and fact. With
great reluctance, the United S ates has decided not to
participate in further proceedings in this case.
US Policy in Central America I
United States policy in Central America has been to promote
democracy, reform, and freedom; to support economic
development; to help provide a security shield against those --
like Nicaragua, Cuba, and the USSR -- who seek to spread
tyranny by force; and to support dialogue and negotiation both
within and among the countries of the region. In providing a
security shield, we have acted in the exercise of the inherent
right of collective self-defense, enshrined in the United
Nations Charter and the Rio Treaty. We have done so in defense
of the vital national security interests of the United States
and in support of the peace and security of the hemisphere.
Nic ragua's efforts to portray the conflict in Central
America as a bilateral issue between itself and the United
States cannot hide the obvious fact that the scope of the
problem is far broader. In the security dimension, it involves
a wide range of issues: Nicaragua's huge buildup of Soviet
arms and Cuban advisers, its cross-border attacks and promotion
of insurgency within various nations of the region) and the
activities of indigenous opposition groups within Nicaragua.
It is also clear that any effort to stop the fighting in the
region would be fruitless unless it were part.of a
comprehensive approach to political settlement, regional
security, economic reform and development, and the spread of
democracy and human rights. .
The Role of the International Court of Justice
The conflict in Central America, therefore, is not a narrow
legal dispute; it is an inherently political problem that is
not appropriate for judicial resolution. The conflict will be
solved only by political and diplomatic means -- not through a
judicial tribunal. The International Court of Justice was
never intended to resolve ongoing armed conflicts and is
I II
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patently. unsuited for such a role. Unlike domestic courts, the
World Court has jurisdiction only to the extent that
nation-states have consented tQ it. When the United states
accepted the Court's compulsory jurisdiction in 1946, it
:certainly never conceived of such a role for the Court in such
Fontroversies. Nicaragua's sujt against the united states --
which includes an absurd demand for hundreds of millions of
dollars in reparations -- is a!blatant misuse of the Court for
political and propaganda purposes.
p
As one of the foremost sup
orters of the International
Court of Justice, the United S ates is one of only 43 of 159
member states of the United Na ions that have accepted the
Court's compulsory jurisdictio at'all. Furthermore, the vast
majority of these 43 states ha a attached to their acceptance
reservations that substantially limit its scope. Along with
the United kingdom, the United States is one of only two
permanent members of the UN Security Council that have accepted
that jurisdiction. And of the 16 judges now claiming to sit in
judgment on the United States in this case, 11 are from
countries that do not accept the Court.'s compulsory
jurisdiction.
Pew if any other countries in the world would have appeared
at all in a case such as this which they considered to be
improperly brought. Nevertheless, out of its traditional
respect for the rule of law, the united States has participated
fully in the Court's proceedings thus far, to present its view
that th Court does not have jurisdiction or competence in this
case.
The Decision of November 26
On November 26, 1984, the Court decided -- in spite of
the overwhelming evidence before it -- that it does have
jurisdiction over Nicaragua's claims and that it will proceed
to a..full hearing on the merits of these claims.
This decision is erroneous as a matter of law and is based
?'n a misreading and distortion of the evidence and precedent:
-- The Court chose to ignore the "irrefutable evidence
that Nicaragua itself never accepted the Court's
compulsory jurisdiction. Allowing Nicaragua to sue
where it could not be sued was a violation of the
Court's basic principle of reciprocity, which
necessarily underlies our own consent to the Court's
compulsory jurisdiction. On this pivotal issue in the
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November 26 decision J- decided by a vote of 11-5 --
0 dissenting judges called the Court's judgment
'untenable' and 'astonishing' and described the US
position as 'beyond dc{ubt.' We agree.
` El Salvador sought to participate in the suit to argue
? that the Court was note the appropriate forum to
address the Central )serican confict. El Salvador
declared that it was under armed attack by Nicaragua
and, in exercise of its inherent right of
self-defense, had requested assistance from the United
States. The Court rejected El Salvador's application
summarily -- without qiving its reasons and without
even granting El Salvador a hearing, in violation of
E1 Salvador's right and in disregard of the Court's
own rules.
-- The Court's decision is a marked departure from its
past, cautious approach to jurisdictional questions.
The haste with which the Court proceeded to a judgment
on these issues -- noted in several of the separate
and dissenting opinions -- only adds to the impression
that the Court is determined to find in favor of
Nicaragua in this case.
For these reasons, despite our respect for the Court's
decisions in other instances, its conduct in this case calls
into serious question whether the United States will receive a
fair hearing consistent with the law. We are forced to
conclud that our continued participation in this case could
not be ustified.
In addition, much of the evidence that would establish
Nicaragua's aggression against its neighbors is of a highly
sensitive intelligence character. We will not risk US national
'security by presenting such sensitive material in public or
before a Court that includes two judges from Warsaw Pact
nations. This problem only confirms the reality that such
issues are not suited for the International Court of Justice.
Longer-Term Implications of the Court's Decision
The Court's decision raises a basic issue of sovereignty.
The sight of a state to defend itself or to participate in
collective self-defense against aggression is an inherent
sovereign right that cannot be compromised by an inappropriate
proceeding before the World Court.
We are profoundly concerned also about the long-term
implications for the Court itself. The decision. of November 26
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represents an overreaching of the Court's limits, a departure
'from its tradition of judicial-restraint, and a risky venture
into treacherous political waters. We have seen in the United
Nations,, in the last decade or;more, how international
organizations have become more'and more politicized against the
interests of the Western democ acies. It would be a tragedy if
these trends were to infect th. International Court of
Justice. We hope this will nop happen, because a politicized
Court would mean the end of th Court as a serious, respected
institution. Such a result wo Id do grievous harm to the goal
of the rule of law.
I
These implications compel is to clarify our 1946 acceptance
of the Court's compulsory juri diction. Important premises on
which our initial acceptance w s based now appear to be in
doubt in this type of case. are therefore taking steps to
clarify our acceptance of the ourt's compulsory jurisdiction
in order to make explicit what we have understood from the
beginning, namely that cases of this nature are not proper for
adjudication by the Court.
We will continue to support the International Court of
Justice where it acts within its competence -- as, for example,
where specific disputes are brought before it by special
agreement of the parties. One such example is the recent case
between the United States and Canada before a special
five=member Chamber of the Court to delimit the maritime
boundary in the Gulf of Maine area. Nonetheless, because of
our commitment to the rule of law, we must declare our firm
conviction that the course on which the Court may now be
embarked could do egormous harm,to it as an institution and to
the cau a of international law.
I
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12/26/84:x22372
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uuly
DDO
D/OLL
Do you have any problems with GC's proposed
response? Please provide a response to me by 1400
hours today--negative response as well.
NSIOUS
5-75 IoI EDITIOREV
M USE
Date 28 December 1984
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Central Intelligence Agency
MEMORANDUM FOR: Robert M. Kimmitt
Executive Secretary
National Security Council
SUBJECT: Nicaraguan World Court Case
1. CIA concurs with the State Department recommendation.
We would suggest the following changes to the proposed release:
a. On the last line on page one delete "ongoing arms
conflicts" and substitute for that phrase "issues of
collective security and self-defense." The reason for this
suggested change is to dispel any question that we admit
that we are involved in an armed conflict with Nicaragua at
this time.
b. On page three delete from the first full paragraph
the following language "despite our respect for the Court's
decisions in other instances." I believe that this phrase
diminishes the hard-hitting impact of the proposed
statement.
2. We commend the excellent analysis of the case that is
provided by the State Department.
xecutive Secretary
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