Nicaraguan-American relations took another erratic turn last week with the refusal of U.S. visas for the customary complement of delegates wishing to attend the new U.N. General Assembly in New York. Yet, despite its rocky up-and-down course, the cease-fire agreement between Nicaragua and the U.S.-supported Contras may still be headed for resolution of the conflict there. Most of us pray that it will. But that would not close the matter for the United States.
I do not speak primarily of remorse, or of debate over the "loss" of Nicaragua, or of the trials of Americans charged with violating federal laws in the conduct of U.S. policy. There is an international tribunal that our nation still must face.
Few legislators and commentators, let alone the general public, are aware of the nature of the June, 1986, judgment of the International Court of Justice, popularly known as the World Court. The possibility of a multibillion-dollar damage award in consequence of our violations of international law has been given no attention at all.
In the minds of many, the Nicaraguan case at the World Court is associated with nothing more than the Central Intelligence Agency's mining of Managua's harbor in early 1984. That is as erroneous as the belief that the case was concluded by the ruling against us in 1986.
The World Court case is very much alive. The Nicaraguan claim for an immediate award of damages ("reparations" in international law) was rejected in 1986 as premature. The parties were told to come back to the court for further hearings if they could not settle the case by diplomatic negotiations.
The litigation was not settled; repeated requests by Nicaragua to negotiate have been rejected.
Two of the court's rulings against U.S. contentions are of potential consequence now: The May, 1985, trade embargo against Nicaragua, imposed by executive order, was condemned as a treaty violation; and the United States' "training, arming, financing and supplying" of the Contra force was held to be wrongful intervention into the affairs of a nation with which we were at peace.
Obviously there is a great deal more at stake here than merely the damage done by mining the harbor for a few weeks. The embargo is still in effect, with consequences so severe that they might now be considered a matter of humanitarian concern. Even if the arming of Contra forces has by now ceased, calculation of the amount of reparations for the effects of lethal aid is unfinished judicial business at the Hague, where the World Court sits.
In a note to the secretary-general of the United Nations last October, the late Nora Astorga, then Nicaragua's ambassador to the international organization, referred to "more than 43,176 victims and material damage which surpasses $2.8 billion" as the components of the reparations claim.
The case was reactivated by a petition filed by Nicaragua's attorneys. The court ordered a hearing; the State Department declined to appear. The court set a timetable for the filing of written statements. Nicaragua's "bill of particulars" (which exceeded Astorga's dollar estimate) was filed when due, on March 28. The United States, given until July 29 to respond, ignored the court as it had in the past.
During the summer of 1986, we were insulated (by the exercise of our veto power at the U.N. Security Council) from sanctions or other steps to enforce the "cease and desist" features of the court's interim order. But that does not guarantee that the next round at the court will be equally futile. The one-shot veto of Security Council enforcement action did not terminate our treaty obligation under the U.N. Charter to "comply with the judgment of the International Court of Justice."
A money judgment does not require further U.N. action. Although we became a "debtor nation" a couple of years ago, we have vulnerable assets all over the world.
In considering the stubborn refusal of Washington to negotiate with Managua, we had better remember that so-called "sovereign immunity" is not necessarily going to be a shield for our assets, even among the friendliest of our allies. Addressing this very issue in 1982 in a lecture at the Hague Academy, Columbia Law School's distinguished international law professor, Oscar Schachter, declared that "the immunity cannot prevail over the obligations of the State under the United Nations Charter to carry out the Court's decision."
Wise litigators always prefer settlements to chancy victories. Why we should not attempt direct talks with Nicaragua has never been satisfactorily explained by Washington. To try for a courthouse settlement would cost nothing, and might gain the prize of peace.