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The Nicaragua Case and the Deterioration of World Order

Published online by Cambridge University Press:  27 February 2017

John Norton Moore
John Norton Moore*
Affiliation:
University of Virginia
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Extract

For all their greatness, democracies historically have difficulty in perceiving and deterring totalitarian aggression. William Stevenson reminds us in A Man Called Intrepid that debate raged within the United States as to whether we should enter World War II on the side of England even after the rest of Europe had fallen to the Nazis. The American ambassador to England cautioned against such entry, arguing that England was militarily doomed. President Roosevelt, who had months earlier secretly committed U.S. intelligence assets to British support, felt that he did not have the necessary popular support to enter the war. And the British were so concerned about American indecisiveness that even after Pearl Harbor they executed a covert operation to persuade Hitler to declare war on the United States, which, of course, he did before America entered the war against Germany.

Type
Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits)
Information
American Journal of International Law , Volume 81 , Issue 1 , January 1987 , pp. 151 - 159
Copyright
Copyright © American Society of International Law 1987

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References

1 See Stevenson, W., A Man Called Intrepid 82–84, 114, 123, 299–300 (1976)Google Scholar.

2 Id. at 45.

3 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27).

4 See UN Docs. S/PV.2694–98 (July 1–3, 1986). In this debate only the United States and El Salvador spoke of the continuing Nicaraguan aggression against neighboring states.

5 163 U.S. 537 (1896). Plessy is the infamous U.S. Supreme Court decision that upheld the doctrine of separate, but equal, under the equal protection clause of the U.S. Constitution.

6 347 U.S. 483 (1954). Brawn overturned Plessy.

7 See Moore, The Secret War in Central America and the Future of World Order, 80 AJIL 43 (1986).

8 Moore, J., The Secret War in Central America (1987)Google Scholar.

9 Turner, R., Nicaragua v. United States: A Look at the Facts (1987)Google Scholar.

10 See, e.g., Associated Press, Oct. 7, 1983, a.m. cycle (two stories); United Press International, Oct. 7, 1983, a.m. cycle (two stories); and Oct. 8, 1983, a.m. cycle. These contra threats to shipping were sufficiently clear that Nicaragua sent a protest note to the United States saying that it would hold it responsible for any attacks against shipping. See United Press International, Oct. 7, 1983, a.m. cycle.

11 Nicaraguan Guerrillas Report Laying Mines at a Key Port, N.Y. Times, Oct. 8, 1983, at 3, col. 6.

12 Communication from K. J. Bickmore, Manager, Intelligence Department, Lloyd’s of London, to the author (Oct. 2, 1986, on file at the University of Virginia School of Law).

13 In a hearing before the House Committee on Foreign Affairs, Deputy Secretary of State Kenneth Dam testified that “all nations are, in fact, warned and were warned through Lloyd’s of London by the Contras . . . .” The Mining of Nicaraguan Ports and Harbors: Hearings on H. Cong. Res. 290 Before the House Comm. on Foreign Affairs, 98th Cong., 2d Sess. 31 (1984).

14 See Hague Convention Relative to the Laying of Automatic Submarine Contact Mines, Oct. 18, 1907, 36 Stat. 2332, TS No. 541, reprinted in 2 AJIL Supp. 138 (1908).

15 The author has confirmed the General Assembly rejection with at least one legal expert involved in the negotiations to define aggression. Judge Schwebel has an excellent discussion of the point in his dissenting opinion. See Dissenting Opinion of Judge Schwebel, 1986 ICJ Rep. at 259, 341–47, paras. 162–71.

16 See Moore, supra note 7, at 63.

17 See id. at 113–15.

18 See OAS Charter, done at Bogotá Apr. 30, 1948, 2 UST 2394, TIAS No. 2361, 119 UNTS 3, as amended Feb. 27, 1967, 21 UST 607, TIAS No. 6847; Inter-American Treaty of Reciprocal Assistance (Rio Treaty), Sept. 2, 1947, 62 Stat. 1681, TIAS No. 1838, 21 UNTS 77.

19 See OAS Charter and Rio Treaty, supra note 18.

20 See 1986 ICJ Rep. at 313, para. 109 (Schwebel, J., dissenting).

21 See id. at 314–15, para. 115.

22 The public record is replete with official statements by Salvadorans that they are being subjected to Nicaraguan aggression and that the United States is assisting in response against this attack. See, e.g., statements in Moore, supra note 7, at 62–63 and 63 n.77. In the manuscript of his book on the Central American war, Turner gives more than three pages of such Salvadoran official statements under numerous administrations. See R. Turner, supra note 9. These Salvadoran statements date from as early as May and June of 1980.

23 With respect to the contra manual, one wonders whether the Court was aware that one of Nicaragua’s principal witnesses before the Court, Edgar Chamorro, had supervisory responsibility for the Spanish translation of the manual, that it was this translation from the English that was principally responsible for the introduction of the controversial language and that the manual was largely corrected by other FDN members before it was distributed. It was this early and discarded translation prepared under Chamorro that was leaked to the press and rightly criticized by the Court.

24 See 2 Nations Suspend Peace Talks Role, Wash. Post, Nov. 8, 1986, at A19, cols. 4–6.

25 For an interesting discussion of some elements of the broader problem, see Revel, J.-F., How Democracies Perish (1984)Google Scholar. Revel’s collection of Western newspaper accounts ignoring the Cambodian genocide is a graphic example of the denial syndrome also at work in the Nicaragua case. See also Rosenne, Terrorism: Who Is Responsible? What Can Be Done?, 148 World Aff. 169 (1985–86).