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The Nicaragua Case: A Response to Judge Schwebel

Published online by Cambridge University Press:  20 January 2017

Paul S. Reichler
Paul S. Reichler*
Affiliation:
Foley Hoag LLP
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Extract

Judge Stephen Schwebel has every right to attack the International Court of Justice's judgment in the Nicaragua case and to defend his dissenting opinion. But he goes too far when he accuses Nicaragua of perpetrating a "fraud on the Court." A response is appropriate, especially from counsel cited by Judge Schwebel for "proposing, developing, and arguing Nicaragua's case."

Type
Notes and Comments
Information
American Journal of International Law , Volume 106 , Issue 2 , April 2012 , pp. 316 - 321
Copyright
Copyright © American Society of International Law 2012

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References

1 See Schwebel, Stephen M., Editorial Comment: Celebrating a Fraud on the Court , 106 AJIL 102 (2012)CrossRefGoogle Scholar.

2 Id. at 102 n.2 (citing Reichler, Paul S., Holding America to Its Own Best Standards: Abe Chayes and Nicaragua in the World Court, 42 Harv. Int’l L. J. 15, 22-24 (2001)Google Scholar). My co-counsel in the case included Ian Brownlie, Abram Chayes, and Alain Pellet.

3 Schwebel, supra note 1, at 102.

4 Id. at 102-03 (citing Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, para. 147 (June 27)).

5 Id. at 103.

6 1986 ICJ Rep., para. 70.

7 Schwebel, supra note 1, at 103; 1986 ICJ Rep., para. 134.

8 Verbatim Record, Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S), ICJ Doc. CR 1985/17, at 55 (“Q.•’ In your opinion, if the Government of Nicaragua was sending arms to rebels in El Salvador, could it do so without detection by United States intelligence-gathering capabilities? A.: In any significant manner over this long period of time I do not believe they could have done so. Q: And there was in fact no such detection during the period that you served in the Central Intelligence Agency? A.: No.”).

9 Id. (“ Q.: In your opinion, if arms in significant quantities were being sent from Nicaraguán territory to the rebels in El Salvador—with or without the Government’s knowledge or consent—could these shipments have been accomplished without detection by United States intelligence capabilities? A.: If you say in significant quantities over any reasonable period of time, no I do not believe so.”).

10 Id. (“Q..• And there was in fact no such detection during your period of service with the Agency? A.: No.”).

11 Schwebel, supra note 1, at 103.

12 1986 ICJ Rep., para 135 (quoting Verbatim Record, supra note 8, at 65).

13 Id. The exact exchange is as follows:

Q.: I understand you to be saying, Mr. MacMichael, that you believe that it could be taken as a fact that at least in late 1980 or early 1981 the Nicaraguán Government was involved in the supply of arms to the Salvadoran insurgency. Is that the conclusion I can draw from your remarks?

A.: I hate to have it appear that you are drawing this from me like a nail out of a block of wood but, yes, that is my opinion.

Verbatim Record, supra note 8, at 65; see also testimony quoted supra notes 8-10.

14 1986 ICJ Rep., para. 160.

15 See Reichler, supra note 2, at 26.

16 See id.

17 See id.

18 1986 ICJ Rep., para. 156.

19 See Schwebel, supra note 1, at 103.

20 See id. at 103-05.

21 See id.

22 See id.

23 See id.

24 See id. at 103-04 (citing Rosenne, Shabtai, The World Court: What It Is and How It Works 152-53 (5th ed. 1995)Google Scholar).

25 Douglas Farah, Managua Blast Rips Lid off Secrets, Wash. Post, July 14, 1993, at Al.

26 See Verbatim Record, supra note 8, at 123; 1986 1C] Rep., para. 73.

27 See Rules of the Court, Arts. 49-52, 56-58; Statute of the Court, Art. 43; 1986 ICJ Rep., para. 73 (“The United States publication was not submitted to the Court in any formal manner contemplated by the Statute and Rules of Court. . . .”).

28 See 1986 ICJ Rep., para. 73.

29 See Verbatim Record, supra note 8, at 123; 1986 ICJ Rep., para. 73.

30 See Military and Paramilitary Activities in and Against Nicaragua, Diss. Op. Schwebel, J.; cf. id., Diss. Op. Oda, J., paras. 61-64 (questioning incomplete picture of dispute as portrayed by Court, in light of lack of sufficient means for fact-finding).

31 The speakets included Judges Bruno Simma and Abdulqawi Ahmed Yusuf, along with Payam Akhavan (McGill University), Alan Boyle (University of Edinburgh), James Crawford (University of Cambridge), Lori Damrosch (Columbia University), Pierre-Marie Dupuy (Graduate Institute Geneva), Michael Glennon (Fletcher School of Law and Diplomacy), Alain Pellet (University of Paris Ouest Nanterre La Défense), Philippe Sands (University College London), Nico Schrijver (Leiden University), Brigitte Stern (University of Paris I), and Joe Ver hoeven (University of Paris II). Other speakers were Ambassador Carlos Arguello Gómez, the agent of Nicaragua in the case; and the author of this Comment. The event was sponsored by the Leiden University Law School, Neth erlands Society of International Law, University College London Institute of Global Law, and the law firm of Foley Hoag LLP (of which the author is a member). The papers are being published in the Leiden Journal of International Law, 25 Leiden J. Int’l L. 131 (2012).