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Job Jayson Murphy
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2 What is the pdint of view expressed by Amb assador Kirkpatric ~7 / unqer her view. is ther e such a thing as international law? What would it be and where would, J we f /nd it? Why does she argue (top of ~ ) that "the legalistic approach to international affairs" is inadequate? What other appro aches are there?

Nicaragua What was the Court's vuling on May 10, 1984? /' What is a prel inary order? What force and effect does i have? r- " What about the Nove/ mber 26, 198' 4 ruling? v...- Mad the united States accepted the Court's ~ II jurisdiction?

3 Nicaragua What was the Court's vuling on May 10, 1984? /' What is a prel inary order? What force and effect does i have? r- " What about the Nove/ mber 26, 198' 4 ruling? v...- Mad the united States accepted the Court's ~ II jurisdiction? "3 oj~- O{, Look at the 1946 u.s. declaration on... Discuss its provisions: Connally amendment: 6- month withdrawal (why?): multilateral treaty exception (why?). Is reciprocity implicitly (or explicitly)written into this declaration? 1(..:" ~ t;; 0.-., ~ JIdr 3 0r What about the Nicaraguan declaration? Page ~ What does it say? What were its problem~w7ith regard 3 0 jn./ '3/ZrI3 to submission to the PC IJ & ICJ? See ~. Technical defects: which the Court (11-5) said were cured by ]/Za listings over time and acquiescence., Good rule? Should the Court err in favor of expanding its jurisd±ction? ~~ ~ ~ Le.j( ~ "j JLu. ~ ~~' C-ovdr/~ 1<; NoS /uro'-'<l II? 1=fj-1-IJ. U.5. ~ ~ ~_a...~j 0-1,, I), '?~ ~01~(j.S. ~? ~ 4 ~ Jk j~~1'+~~ ' N rj,.j~ ~ ~,y)/ak~~ ~(n, ~ Gc...; ~~~ 1.4:r 1l...L 1CTt+, ~?. A>-!,,~ ~I 0 t Ds 'If,.p-l- University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection ~

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NicaFagu a S II ~ what about th e ~FCN,17 ll Treaty? What i s i t?'see bottom of 1 11"0 ~ ~ I V- z. d...j- J. ~ G,.,..,.r i '<;(Asci cj.o.-.. -pl /l. V ~ W-..:J- '}t,~ '<a 0-..5 (uj4 ~ t-l t'-j~?

5 NicaFagu a S II ~ what about th e ~FCN,17 ll Treaty? What i s i t?'see bottom of 1 11"0 ~ ~ I V- z. d...j- J. ~ G,.,..,.r i '<;(Asci cj.o.-.. -pl /l. V ~ W-..:J- '}t,~ '<a (uj4 ~ t-l t'-j~? (~~-Hfj. /~ J. J~A ~.-L~ /~Jclt/.in... rio fl.. ~ 7 A Treaty Obligation At the World Court To the Editor: Overlooked io the United States withdrawal from the case of Nicara ~ gua v. United States io the World Court was the fact that the Court based its jurisdiction io part on alleged violations of a 1958 treaty of Friendship, Commerce and Navigation between the two countries. The relation of Nicaragua's allegations agaiost the United States to this treaty is perhaps tangential, but nevertheless real. The allegations include mioiog Nicaragua's harbors and covert military and paramilitary activities. While the treaty is addressed to commercial matters, it does contain clauses guaranteeiog freedom of commerce and navigation, and a preamble speaks of "strengthening the bonds of peace and friendship traditionally existing" between the two nations. - O~ ct'?ra ~ fl.. ~ Jrdt --~--- Like many otner treaties bioding the United States, this one grants automatic JUrisdiction to the World Court in the event of disputes between the parties as to Its ioterpreta_ tion or application. For the United States to igoore this treaty basis for jurisdiction would be iotentionajly to break a treaty obligation, something this country prides itseh on Dever having done. The United States should show up io the World Court, at least to argue the ioterpretation and applicability of the 1958 treaty. While the treaty compels the United States to do this much, it, in fact, presents the United States with an excellent opportunity to demonstrate that this country has not completely turned its back on the World Court.. The reasons given by the United States for Withdrawiog from the case were all addressed to the case's "compulsory jurisdiction" aspect; none ot the reasons touched on the 1958 treaty. The opportunity now exists tor statesmanship: to announce that this country w11l participate io the case to the extent only that its 1958 treaty obligations are implicated. AImIONYD'AMAro Professor of Law Northwestern University Chicago, Ian. 28, '1 '11..-

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Nicaragua's lawsuit, which was filed I in April, represents the first case in its history in which the World Court has been asked to resolve a continuing ll11tied conflict.

8 Nicaragua's lawsuit, which was filed I in April, represents the first case in its history in which the World Court has been asked to resolve a continuing ll11tied conflict. Formally known as the International Court of Justice, the court is the judicial arm of the United Nations. In the past it has decided disputes over boundaries, fishing, commercial issues and a few cases involving violence, such as Iran's seizure of the United States Embassy in Teheran. It has never decided a case involving open hostilities or guerrilla war. One of the United States' contentions was that only the United Nations Security Council or regional peacekeeping groups cou1d decide issues of war and peace. The Court unanimously re-. ected that contention. \1 _1,~-l us ~~ FArs ~ ~ /.., ~~ - 2-?r T C-..A ~ fi /()/./ f ' 3 ~ {. ;.J...A.;.,.,.. L 'it j a...,... ~7~ ~I..~-

9 US Decision revoking our acceptance of the compulsory jurisdiction of the ICJ, October 7, d),-06 Look again at the 1946 US declaration at.&... &... Can our decision to back out take effect before si~ - months have passed? What are the costs and benefits offuis decision-- make competing arguments. In the State~ Department statement, the spokesperson (45 after we withdraw) said that fewer than 1/3 of the nations/had agreed to the court's jurisdiction and therefore that we were subjecting ourself to somethi ng that the Soviet Union had not agreed to. Is that - a good argument? Look at the list on ~ No natio n not on that list can sue us. So how are we giving the Soviets an advantage? Are those nations that we are afraid to defend our actions against in a court of law? World Court WASHINGTON (AP) _ The Rh'agan administration, stung by c arges that lhe United Stales controls and directs Nicaraguan rebels, announced today it would limit American recognition of decisions by the World COurt. "Our ex"erience with Compulsory JurIsdIction has been deeply d lsappolnllng," the Stale Department said In a statement. f(s,lj /0-7- f'j~

10 RATIONALE FOR THE US WITHDRAWAL FROM THE COMPULSORY JURISDICTION OF THE ICJ, p....- '31.3 Is Judge Sofaer persuasive? What are his arguments? j!j **Not many nations ~ ave accepted the compulsory jurisdiction. 47 out of 162, ~ ']I 3 1M;.. Percentage is declining. UK is the only permanent member of the Security Council. US acceptance thus did not serve as an effective example to others. **connally Amendment prevented us from bringing actions against other nations anyway. ~~. ),,C **Nations that filed a compulsory jurisdiction declaration were "sitting ducks" against other nations that wanted to file one case against them...""'..''. 'IV' could we deal with this by modifying our declaration? [Discuss Nauru case.] **The court isn't fair anyway. 9 out of 15 judges come from countries that do not accept compulsory jurisdiction, and many of them have never used the Court at all. Judges are selected after "intense electioneering." ~?5 ~\ } **The Court's treatment of the US in the Nicaragua case illustrates its bias.... ) z-f lz.. **Its failure to agree with us on the defects of Nicaragua's acceptance of compulsory jurisdiction. **Its rejection of EI Salvador's attempt to intervene. **Its assertion of jurisdiction over a "controversy related to an ongoing use of armed force." this Was the c~urt overly aggressive in asserting jurisdiction in case? p3t ~, Q.9. If so, why? would John Marshall have handled the matter differently? P. Q.I0. should the us resubmit its declaration accepting compulsory jurisdiction? If so, should the declaration be modified? Franck: we should exclude disputes involving armed conflict--like India and Kenya.?3a/~. i in. Why? "The finger on the trigger cannot be that of the global judiciary." Also, we should drop the Connally Amendment. ~. Hypocrisy. 3301/'1 Is the Court biased against the US? Franck notes that the us judge has dissented only 16 out of 98 cases. i ili9jii. J >1 T

11 Discuss three current/recent US cases-- **Italian seizure of US-owned company--~. 5~bJly **Iranian airliner--~. **Damages in the Nicaragua case--? Z. 3~~h What has been the experience using chambers--is that a good system or what? Letting the countries pick the judges?!

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14 2. Nicaragua 1-4 In the early 1980s, the united states Congress appropriated funds that were channeled through the u.s. Central Intelligence Agency to rebel groups (known as "contras") fighting against the Sandinista government which took control of Nicaragua in Some of these funds also supported an operation apparently directed by the Central Intelligence Agency to mine the harbors of Nicaragua. Nicaragua took steps in 1929 and 1935 to accept the jurisdiction of the Permanent Court of International Justice (PCIJ) in a process described and analyzed below. The PCIJ served the same function as the International Court of Justice (ICJ) between the First and Second World Wars. Declarations to the PCIJ that have not lapsed or been withdrawn are generally deemed to be acceptances of the ICJ under Article 36(5) of the ICJ Statute (Documentary Supplement, page 33). The Nicaraguan declaration reads as follows: On behalf of the Republic of Nicaragua, I recognise as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice." Geneva, 24 September (Signed) T. F. MEDINA [Translation from the French] The U.S. declaration accepting the jurisdiction of the ICJ was filed in 1946 and reads as follows: 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;

15 1-5 ~. 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 (Signed) HARRY S. TRUMAN.* On April 6, 1984, the United states filed a letter with the Secretary General of the United Nations stating that it would not accept the jurisdiction of the ICJ over disputes involving Central America for a period of two years. U.S. representatives later argued that U.s. aid to the contras in Nicaragua was justified by Nicaragua's support of leftist guerrillas in El Salvador and that the International Court of Justice was an inappropriate forum to deal with what was essentially a political and military dispute. Jeanne J. Kirkpatrick, chief u.s. delegate to the United Nations, said in a speech on April 12 before the American Society of International Law that nnicaragua is engaged in a continuing, determined armed attack against its neighbors A and nhas initiated the violation of international law through the use of violence against its neighbors. A She said the rules against use of military force in the United Nations Charter (Article 2(4» were not Aa suicide pact,a and suggested that violations by the Soviet Union, Nicaragua, and other nations required a response in kind. AUnilateral compliance with the Charter's principles of nonintervention and nonuse of force may *The proviso numbered "(b)a is generally referred to as the nconnally Amendment," named after its sponsor in the U.s. Senate.

16 ~ make sense in some specific isolated instances," she said, "but are hardly a sound basis for either u.s. policy or for international peace and stability." Mrs. Kirkpatrick said that nthe legalistic approach to international affairs" was inadequate to cope with the realities of Communist aggression and' subversion, but she stopped short of saying that the United states should disregard international law. Two days later, Michael Kozak, Deputy Legal Adviser to the u.s. Department of, state, added that the United states thought that litigation on this issue would divert attention from ongoing negotiations and was concerned that intelligence sources might be compromised if the United states were required to reveal the factual basis for its policies. 1-6 On April 9, 1984, Nicaragua filed a complaint against the United states in the ICJ which included the following language: Nicaragua requests the Court to adjudge and declare as follows: A. The United states is recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding and,directing military and paramilitary action in and against Nicaragua, had violated and is violating its expressed charter obligation to Nicaragua, and in particular its charter and treaty obligation under Article 2 paragraph 4 of the United Nations Charter, Article 18 and 20 of the charter of the Organization of American states, Article 8 of the Convention of Rights and Duties of states, Article 1, third, of the Convention Concerning the Duties and Rights of states in the Event of Civil Strife. B. The United states, in breach of its obligation under general and customary international law, has violated and is violating the sovereignty of Nicaragua by armed attacks a,gainst Nicaragua by air, land and sea incursions into Nicaraguan territorial waters, aerial trespass into Nicaraguan airspace and efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua. C. The United States, in breach of its obligation under general and customary international law, has used and is using force and the threat of force against Nicaragua.

17 1-7 D. The United states, in breach of its obligations under general and customary law, has intervened and is intervening in the internal affairs of Nicaragua. E. The united states, in breach of its obligations under general and customary international law, has infringed and is infringing the freedom of the high seas and is interrupting peaceful maritime commerce. F. The United states, in breach of its obligations under general and customary international law, has killed, wounded and kidnapped, and is killing, wounding and kidnapping citizens of Nicaragua. G. In view of its breaches of the forebearing legal obligations, the United states is under a particular duty to cease and desist immediately from all use of force -- direct or indirect, overt or covert -- against Nicaragua and all threats of force against Nicaragua. From all violations of the sovereignty, territorial integrity or political independence of Nicaragua, including all intervention, direct or indirect, into the internal affairs of Nicaragua. From all support of any kind -- including the provision of training, arms or ammunition, financing, supplies, assistance, direction or any other form of support -- to any nations, groups, organizations, movements or individuals engaging or planning to engage in military or paramilitary operations in or against Nicaragua. From all efforts to restrict, block or endanger access to or from Nicaraguan ports. From all killing, wounding and kidnapping of Nicaraguan citizens. H. That the United states has an obligation to pay Nicaragua reparations for damages to persons, property and the Nicaraguan economy caused by the foregoing violations of international law as found to be determined by the Court. The United states appeared for oral argument in this case on April 25, but argued that the ICJ did not have jurisdiction over the matter. On May 10, 1984, the ICJ issued a preliminary order, ruling unanimously that:

18 1-8 nthe UNITED STATES OF AMERICA should immediately cease and refrain from any action restricting, blocking or endangering access to or from Nicaraguan ports, and, in particular, the laying of mines. n The Court also ruled by 14 votes to 1 (Judge Schwebel dissenting) that nthe RIGHT to sovereignty and to political independence possessed by the Republic of Nicaragua, like any other state of the region or of the world, should be fully respected and should not in any way be jeopardized by any military and paramilitary activities which are prohibited by principles of international law, in particular the principle that states should refrain in their international relations from the threat or use of force against the territorial integrity or the political independence of any state, and the principle concerning the duty not to intervene in matters within the domestic jurisdiction of a state, principles embodied in the United Nations Charter and the Charter of the Organization of American States. n The Court heard oral arguments on the jurisdictional questions during the summer of 1984 and issued its decision on November 26, The decision is explained and analyzed in the materials that follow:

* Mined ports * Destroyed oil installations * Armed and trained the contras

* Mined ports * Destroyed oil installations * Armed and trained the contras NICARAGUA v. UNITED STATES (ICJ 1986) What were the human rights violations in Nicaragua? Did they reach the level of "gross violations of fundamental human rights"? Did they shock the conscience of the