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Dissenting Opinion of Judge Schwebel

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Dissenting Opinion of Judge Schwebel DISSENTING OPINION OF JUDGE SCHWEBEL Paragraphs 1-5 II. SUMMARYOF SALIENTLEGAL CONCLUSIONS 6-16 III. FACTUALPREMISES 17-41 A. The Nicaraguan Government came to power on the back of some of the very forms of foreign intervention of which it now complains (Appendix, paras. 2-7) 17-18 B. The new Nicaraguan Government achieved foreign recogni- tion in exchange for international commitments concerning its interna1 and external policies, commitments which it deliber- ately has violated (~p~endix,paras. 8-13) 19 C. The new Nicaraguan Government received unprecedented aid from the international community, including the United States (Appendix, paras. 14-15) 20 D. The Carter Administration suspended aid to Nicaragua in January 1981 because of its support of insurgency in El Sal- vador, support evidenced, inter alia, by documents captured from the Salvadoran guerrillas (Appendix, paras. 16-22) 21 E. The Reagan Administration terminated aid to the Nicaraguan Government while waiving the latter's obligation to return aid already extended in the hope that its support of foreign insur- gencies would cease ; subsequently, it twice officially offered to resume aid if Nicaragua would stop supporting insurgency in El Salvador, offers which were not accepted (Appendix, paras. 23-24) 22 F. The Reagan Administration made clear to the Nicaraguan Government in 1981 that it regarded the Sandinista revolution "as irreversible" ; its condition for CO-existencewas stopping the flow of arms to El Salvador (Appendix, paras. 25-26) 23 G. Before this Court, representatives of the Government of Nica- ragua have falsely maintained that the Nicaraguan Govern- ment has "never" supplied arms or other material assistance to insurgents in El Salvador, has "never" maintained Salvadoran command and control facilities on Nicaraguan territory and "never" permitted its territory to be used for training of Sal- vadoran insurgents (Appendix. para. 27) 24-27 Paragraphs H. The Nicaraguan Governrnent, despite its denials, in fact has acted as the principal conduit for the provision of arrns and munitions to the Salvadoran insurgents from 1979 to the present day ; cornmand and control of the Salvadoran insur- gency has been exercised frorn Nicaraguan territory with the CO-operation of the Cuban and Nicaraguan Governments ; training of Salvadoran insurgents has been carried out in Cuba and Nicaragua ; the Salvadoran insurgents' radio station at one time operated frorn Nicaraguan terntory ; and Nicara- guan political and diplomatic support of the Salvadoran insur- gency has been ardent, open and sustained (Appendix, paras. 28- 188) 28-32 1. In 1979, rnembers of the Nicaraguan National Guard escaped to Honduras, from which they harassed Nicaragua. Officers of the Argentine Army began training these counter-revolution- aries in late 1980 or early in 1981 - and continued to do so until 1984 (Appendix, paras. 189- 196) J. In Novernber 1981, after Nicaragua had failed to accept repeated United States requests to cease its rnaterial support for Salvadoran insurgents. the United States decided to exert rnilitary pressure upon Nicaragua in order to force it to do what it would not agree to do (Appendix, paras. 169- 170, 173, 1IO. 121-122, 128-129) K. The object of United States support of the contras was clairned by the United States to be interdiction of traffic in arms to El Salvador, though clearly that was not the purpose of the con- tras (Appendix, paras. 156-173, and the Court's Judgrnent) L. By October 1983, in apparent response to United States pres- sures, Nicaragua proposed four treaties which were inter- preted as an offer to cease supporting rebellion in El Salvador if the United States would cease support of the contras and of the Government of El Salvador (Appendix, paras. 174- 178) M. In 1983, the United States called upon Nicaragua to cut back its arrns build-up, to sever its ties with the USSR and Cuba, and to carry out its pledges to the OAS and its Members for a democratic society (Appendix, paras. 194- 198) N. By the beginning of 1984, the United States undertook direct if covert rnilitary action against Nicaragua, assaulting oil facili- ties and mining Nicaraguan ports (Appendix, para. 199, and the Court's Judgrnent) O. Particularly since January 1985, the United States has spoken in terms which can be interpreted as requiring cornprehensive change in the policies of, or, alternatively, overthrow of, the Nicaraguan Government as a condition of cessation of its support of the contras (Appendix. paras. 200-205) Paragraphs P. There is evidence of the commission of atrocities by the con- tras, by Nicaraguan Government forces, and by Salvadoran insurgents, and of advocacy by the CIA of actions contrary to the law of war (Appendix, paras. 206-224) Q. The Contadora process designed to re-establish peace in Cen- tral America embraces the democratic performance internally of the five Central American Governments (Appendix, paras. 225-227) 4 1 IV. THELAW 42-272 A. Introduction B. Questions of admissibility and of justiciability 1. Political questions 43-50 2. The Court's capacity ta pass upon continuing uses of force 51-60 3. United States Diplomatic and Consular Staff in Tehran case 6 1-68 4. The incapacity of the Court to judge the necessity of con- tinuing use of force in the circumstances of this case 69-77 C. The relevance and effect of the "multilateral treaty" reserva- tion 78-99 1. The Court was and is bound to apply the rese~ation 78-90 2. The relationship of customary international law to the reservation 91-99 D. The question of jurisdiction under the Treaty of Friendship, Commerce and Navigation 100-106 E. The effect of the absence of El Salvador 107-1 13 F. The effect of the absence of the United States 114-127 1. Events bearing on the absence of the United States 114-1 15 2. The meaning of Article 53 of the Statute 116-127 G. The Court's treatment of the evidence 128- 153 1. The title of the case 128-131 2. The failure to use the Court's authority to find the facts 132-134 3. The Court's articulation and application of evidential stan- dards 135- 153 H. The Nicaraguan Government's material support of insurgency in El Salvador is legally tantamount to an armed attack by Nicaragua upon El Salvador 154-161 1. The Court's conclusion is inconsistent with the General Assembly's Definition of Aggression 162-171 J. The question of whether measures in self-defence may be taken only in case of armed attack 172- 173 K. The Court's views on counter-intervention and its implied support for "wars of liberation" 174-181 Paragraphs L. El Salvador is entitled to act in self-defence against Nicara- guan armed attack 182- 184 M. The United States is entitled to act in collective self-defence with El Salvador 185-200 1. The position of El Salvador 185-191 2. The position of the United States 192 3. The pertinence of provisions of the Inter-American Treaty of Reciprocal Assistance 193-197 4. The position under the United Nations Charter and cus- tomary international law 198-200 N. Considerations of necessity and proportionality 201-214 O. Measures of collective self-defence may lawfully extend to Nicaraguan territory 215-220 P. The failure of the United States to notify the Security Council of measures of self-defence 22 1-230 Q. If United States reliance on a claim of self-defence is well founded, it constitutes a complete defence to virtually al1 Nicaraguan claims 231-233 R. The mining of Nicaraguan ports was unlawful in regard to third States but lawful in respect to Nicaragua 234-240 S. The United States has not unlawfully intervened in the inter- na1 or external affairs of Nicaragua 241 -250 T. The United States has not violated its obligations towards Nicaragua under the Treaty of Friendship, Commerce and Navigation 25 1-256 U. Responsibility for violations of the law of war 257-26 1 V. As the State which first used armed force in contravention of the Charter, the aggressor is Nicaragua 262-265 W. The misrepresentations of its representatives in Court must prejudice rather than protect Nicaragua's claims 266-267 X. Nicaragua's unclean hands require the Court in any event to reject its claims 268-272 Paragraphs (Appendix) 1-227 A. The Sandinistas came to power on the back of some of the very forms of intervention of which they now complain 2-7 B. The new Nicaraguan Government achieved foreign recogni- tion in exchange for international pledges concerning its inter- na1 and external policies, commitments which it deliberately has violated 8-13 C. The new Nicaraguan Government received unprecedented aid from the international community, including the United States 14-15 Purugraphs (Appendix) D. The Carter Administration suspended aid to Nicaragua be- cause of its support of insurgency in El Salvador, support evidenced, inter alia, by documents captured from Salvadoran guerrillas 16-22 E. The Reagan Administration terminated aid to the Nicaraguan Government while waiving the latter's obligation to return aid already extended in the hope that its support for foreign insurgencies would cease ; subsequently, it twice officially offered to resume aid if Nicaragua would stop supporting insurgency in El Salvador, offers which were not accepted 23-24 F. The Reagan Administration made clear to the Nicaraguan Government in 1981 that it regarded the Sandinista revolution "as irreversible" ; its sole condition for CO-existencewas stop- ping the flow of arms to El Salvador 25-26 G. Before this Court, representatives of the Government of Nica- ragua have maintained that the Nicaraguan Government has "never" supplied arms or other material assistance to insur- gents in El Salvador, has "never" maintained Salvadoran command and control facilities on Nicaraguan territory and "never" permitted its territory to be used for training of Sal- vadoran insurgents 27 H.
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