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“Secret Wars,” Self-Defense and the Charter—A Reply to Professor Moore

Published online by Cambridge University Press:  27 February 2017

James P. Rowles
James P. Rowles*
Affiliation:
Center for International Affairs, Harvard University
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Extract

In a recent article entitled The Secret War in Central America and the Future of World Order, Professor John Norton Moore, a staunch defender of United States actions toward Nicaragua, sets forth a comprehensive array of factual assertions and legal arguments to support his conclusions that support by the United States of Nicaraguan counterrevolutionaries or “contras” and its own actions against Nicaragua are justified as collective self-defense under international law. He also presents arguments to support his conclusion that the International Court of Justice has so exceeded its authority in exercising jurisdiction in the case of Nicaragua v. United States that its decisions are void, and consequently may be ignored by the United States—or, for that matter, Nicaragua. Professor Moore’s analysis and conclusions differ sharply from those of the present writer. It should therefore be useful to identify the main points of disagreement, and to suggest the policy implications of the different legal arguments and conclusions.

Type
Reply
Information
American Journal of International Law , Volume 80 , Issue 3 , July 1986 , pp. 568 - 583
Copyright
Copyright © American Society of International Law 1986

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References

1 Moore, , The Secret War in Central America and the Future of World Order , 80 AJIL 48 (1986)Google Scholar.

2 Id. at 58, 60, 86–87. He also suggests that Nicaragua has launched “armed attacks” against Costa Rica, Guatemala and Honduras by supporting subversive activities in those countries. See, e.g., id. at 86–87. Aside from Nicaraguan attacks on contra bases in Honduras, such alleged “armed attacks” need not be considered here in view of the fact that the strongest case that can be made, by far, is that involving the alleged Nicaraguan “attack” on El Salvador, and that only El Salvador appears to have requested U.S. assistance in meeting such an armed attack by providing measures of collective self–defense. Even if his factual assertions regarding Nicaraguan subversion in Guatemala, Honduras and Costa Rica are accurate—a question that admits of some doubt in view of the sources Moore relies on regarding some incidents—these activities cannot reasonably be construed as representing ongoing “armed attacks” against the countries concerned. This point becomes clearer when we examine the strongest case, that involving the alleged “armed attack” on El Salvador by Nicaragua. (The use of “armed attack” should be understood as referring to that term as it is used in Article 51 of the UN Charter.)

The argument that activities directed against four neighboring states, none of which amounts to an armed attack against any single state, might, taken together, be considered an armed attack against all, is clearly untenable in both logic and law. Although Moore does not explicitly advance such a proposition, arguing instead that Nicaragua’s activities against each constitute an armed attack, the argument is largely implicit in his reasoning. The argument must be rejected on legal grounds because it would eliminate the armed attack requirement contained in Article 51 of the UN Charter. The inadmissibility of such a legal argument, moreover, is supported by the same policy considerations that militate in favor of upholding the requirement of an armed attack before a state may lawfully resort to the use of force in exercise of the right of self–defense under Article 51. See infra note 45 and accompanying text.

Moore, arguing in the alternative, also states that the view espoused by some scholars that Article 51 does not restrict the right of self-defense under customary international law, as it existed prior to the advent of the Charter, “seems correct.” Moore, supra note 1, at 82–83. This is not the view of the majority of publicists. Ago states, for example: “Suffice it to say that the plea of self-defence in justification of the use of armed force by a State in cases other than those in which the State in question is the victim of an armed attack is held by the majority to be utterly inadmissible.” Ago, Addendum to the Eighth Report on State Responsibility, [1980] 2 Y.B. Int’l L. Comm’n, pt. 1 at 13, 66, UN Doc. A/CN.4/SER.A/1980/Add.1. The quoted statement is made in a context that makes clear that Ago does not mean to exclude the right of collective self-defense. His report contains exhaustive references to the literature dealing with the question whether Article 51 limits the customary right of self-defense.

3 Moore, supra note 1, at 57.

4 Id. at 58 n.56, 67.

5 See id. at 58.

6 Id.

7 Id. at 58, 60, 64, 89.

8 Id. at 58, 60–64, 89. See infra notes 15–16 and accompanying text.

9 Moore, supra note 1, at 64.

10 Id. (citing statements of Miguel Bolaños Hunter).

11 Moore invites his readers to review reports by the State and Defense Departments, which, he says, “document repeated interception of arms and ammunition shipments.” Id. at 61. This writer invites the reader to do likewise, with a careful eye to the dates involved and the sources of the information on which specific statements are based. The reader might also consult the detailed critiques that have been published in the Washington Post, and elsewhere, following the release of the principal reports. See also Wash. Post, July 19, 1984, at A17, col. 1 (early draft of white paper called supplies “sporadic” only); N.Y. Times, Sept. 12, 1984, at A9, col. 5; N.Y. Times, Apr. 15, 1985, at A9, col. 1. For a general assessment of U.S. evidence regarding the arms flow from Nicaragua to El Salvador, see, e.g., Wash. Post, July 8, 1984, at A1, col. 1.

12 See Moore, supra note 1, at 57.

13 See, e.g., id. at 64 (statement of Alejandro Montenegro).

14 Allowing such activities appears to violate Article 2(4) of the UN Charter, Article 18 of the OAS Charter and customary international law, without, however, constituting an armed attack such as is required by Article 51 of the UN Charter for the United States lawfully to use force against Nicaragua in exercise of the right of collective self–defense. See infra notes 34, 45–46 and accompanying text.

15 H.R. Rep. No. 122, 98th Cong., 1st Sess. 5 (1983), quoted in Moore, supra note 1, at 61.

16 The excerpt reproduced above, which Moore refers to as “congressional findings [that] appear in a report of the House Permanent Select Committee on Intelligence, dated May 13, 1983,” is actually taken from a statement made by the chairman of the committee on March 4, 1982. H.R. Rep. No. 122, supra note 15, at 5. What the committee stated in 1983 was the following:

[T]he Committee believes that the intelligence available to it continues to support the following judgments with certainty:

A major portion of the arms and other material sent by Cuba and other communist countries to the Salvadoran insurgents transits Nicaragua with the permission and assistance of the Sandinistas.

The Salvadoran insurgents rely on the use of sites in Nicaragua, some of which are located in Managua itself, for communications, command-and-control, and for the logistics to conduct their financial, material and propaganda activities.

The Sandinista leadership sanctions and directly facilitates all of the above functions.

Nicaragua provides a range of other support activities, including secure transit of insurgents to and from Cuba, and assistance to the insurgents in planning their activities in El Salvador.

In addition, Nicaragua and Cuba have provided—and appear to continue providing— training to the Salvadoran insurgents.

Id. at 6. The extent to which these judgments were based on intelligence regarding activities as far back as 1980–1981 is not clear.

17 Even the Honduran request for assistance in response to border incursions into Honduras by Nicaraguan forces attacking contra camps, during the week of March 24, 1986, does not appear to have been phrased in terms of an “armed attack” against Honduras. What the Reagan administration labeled a Nicaraguan “invasion” of Honduras appears, in retrospect, to have been a limited attack on the contra camps from which attacks on Nicaragua have been launched, and consequently a proper exercise of the right of self–defense by Nicaragua. The Honduran request for $20 million in emergency military assistance appears to have been made on the initiative of U.S. officials, while the timing suggests the possibility that the so-called invasion was adroitly used by the administration to influence the vote in the Senate on the President’s $100 million request for aid to the contras. See, e.g., Wash. Post, Mar. 29, 1986, at A17, col. 1 (analysis); L.A. Times, Mar. 29, 1986, at 1, col. 2 (U.S. pressure on Honduras to complain of incursion).

18 The requirement of a request by the attacked state for assistance in exercise of the right of collective self-defense inheres in the very concept of collective self-defense. Such a request is required under Article 51 of the UN Charter. See Ago, supra note 2, at 68 (request or consent required). The reporting requirement in Article 51 may be viewed as serving the function of ensuring that such a request has been made.

In the present case, the requirement of a request from the attacked state is expressly mandated by Article 3(2) of the Rio Treaty, which provides:

On the request of the State or States directly attacked and until the decision of the Organ of Consultation of the Inter-American System, each one of the Contracting Parties may determine the immediate measures which it may individually take in fulfillment of the obligation contained in the preceding paragraph [i.e., to assist in collective self-defense] and in accordance with the principle of continental solidarity. The Organ of Consultation shall meet without delay for the purpose of examining those measures and agreeing upon the measures of a collective character that should be taken. Art. 3(2), Inter-American Treaty of Reciprocal Assistance, Sept. 2, 1947, 62 Stat. 1681, TIAS No. 1838, 21 UNTS 77 [hereinafter cited as Rio Treaty].

Article 3(1) of the Rio Treaty establishes that the parties “agree that an armed attack by any State against an American State shall be considered as an attack against all the American States,” and, consequently, that each “undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self–defense recognized by Article 51 of the United Nations Charter.” Id., Art 3(1). Similarly, Article 27 of the OAS Charter provides: “Every act of aggression by a State against the territorial integrity or the inviolability of the territory or against the sovereignty or political independence of an American State shall be considered an act of aggression against the other American States.” Art. 27, Organization of American States Charter, Apr. 30, 1948, 2 UST 2394, TIAS No. 2361, 179 UNTS 3, as amended by Protocol of Buenos Aires, 21 UST 607, TIAS No. 6847 [hereinafter cited as OAS Charter]. However, it is clear that both Article 3(1) of the Rio Treaty and Article 27 of the OAS Charter are subject to the requirement of a request contained in Article 3(2) of the Rio Treaty. The principle in Article 27 of the OAS Charter is subject to the provision, in Article 28, that the measures and procedures established in the Rio Treaty shall apply in the case of an armed attack or other act of aggression. OAS Charter, supra, arts. 27–28. Consequently, neither Article 3(1) nor Article 27 establishes a basis for the argument that the parties have made a prior and valid request for assistance in exercise of the right of self–defense. Article 3(2) effectively precludes any such possibility.

19 Moore, supra note 1, at 104 n.240.

20 U.S. Dep’t of State, U.S. Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice, Jan. 18, 1985, reprinted in 24 ILM 246, 248 (1985).

21 Declaration of Intervention (Article 63 of the Statute) of the Republic of El Salvador (Nicar. v. U.S.) (submitted to the Court on Aug. 15, 1984), reprinted in 24 ILM 38, 38, 41 (1985). On the Salvadoran intervention, see generally Sztucki, , Intervention under Article 63 of the ICJ Statute in the Phase of Preliminary Proceedings: The “Salvadoran Incident,” 79 AJIL 1005 (1985)Google Scholar.

22 Moreover, El Salvador does not appear to have ever reported to the Security Council the details of the measures it has undertaken in exercise of the right of self-defense against the armed attack of Nicaragua, despite the reporting requirement contained in Article 51 of the Charter.

23 Moore, supra note 1, at 72.

24 Id. at 58.

25 Id. at87n.l83.

26 Id. at 112–14.

27 Id. at 114.

28 Id. at 89. Interestingly, Moore cites congressional limitations on U.S. assistance to the contras as evidence of the restrained nature of the U.S. response. See id. at 72–73.

29 Id. at 114.

30 Id. The reason for his careful qualification of even this assertion, by using the word “seems,” is not clear.

31 See generally Dickey, C., With the Contras (1985)Google Scholar; infra note 44.

32 Moore, supra note 1, at 74–75.

33 Id. at 75. Continued references to the Sandinista “pledges” to the OAS, made in a communication of their intentions sent prior to assuming power, seem oddly malapropos in view of the absolutely binding legal obligations Nicaragua has assumed by ratifying the American Convention on Human Rights and other human rights treaties. Perhaps this continued reference can be explained only as an attempt to call attention to the issue of human rights, without at the same time drawing attention to the fact that the American Convention has been sitting in the Senate, gathering dust, since President Carter presented it for Senate approval in 1978.

34 See, e.g., UN Charter art. 2, para. 4; OAS Charter, supra note 18, art. 18. The text of Article 18 is particularly significant:

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements.

35 Time, Mar. 31, 1986, at 16.

36 Id.

37 N.Y. Times, Mar. 17, 1985, at A1, col. 5.

38 D’Amato, Nicaragua and International Law: The “Academic” and the “Real,” 79 AJIL 657, 658 (1985)Google Scholar.

39 Moore, supra note 1, at 89.

40 Franck, , Icy Day at the ICJ , 79 AJIL 379, 379 (1985)Google Scholar.

41 Moore, supra note 1, at 58 n.56.

42 See supra notes 8–9, 12–13 and accompanying text.

43 See, e.g., Leiken, , The Salvadoran Left , in Central America: Anatomy of Conflict 11 (1984)Google Scholar; Baloyra, E., El Salvador in Transition 116–19, 160–66 (1982)Google Scholar.

44 The House Permanent Select Committee on Intelligence, in its 1983 report, concluded as follows:

The activities and purposes of the anti-Sandinista insurgents ultimately shape the program. Their openly acknowledged goal of overthrowing the Sandinistas, the size of their forces and efforts to increase such forces, and finally their activities now and while they were on the Nicaraguan-Honduras border, point not to arms interdiction, but to military confrontation. As the numbers and equipment of the anti-Sandinista insurgents have increased, the violence of their attacks on targets unrelated to arms interdiction has grown, as has the intensity of the confrontation with Sandinista troops.

. . . .

There are certainly a number of ways to interdict arms, but developing a sizable military force and deploying it in Nicaragua is one which strains credibility as an operation only to interdict arms.

Finally, and most importantly, the program has not interdicted arms. . . . [T]he only real results have been a challenge to the regime and heightened tensions with Nicaragua.

H.R. Rep. No. 122, supra note 15, at 11. See generally C. Dickey, supra note 31.

45 This assertion is contrary to existing law. See, e.g., I. Brownlie, International Law and the Use of Force by States 278–79, 372–73 (1963). While Moore also suggests such direction and control exists, there appears to be little, if any, reliable evidence in the public record to support this view. See Moore, supra note 1, at 86–87. Consequently, the position he advances is either based on factual predicates rejected above, or amounts to the argument set forth in the text.

46 See, e.g., Malanczuk, , Countermeasures and Self-Defense as Circumstances Precluding Wrongfulness in the International Law Commission’s Draft Articles on State Responsibility , 43 Zeitschrift für Ausländisches öffentuches Recht und Völkerrecht 705, 768–69 (1983)Google Scholar; I. Brownlie, supra note 45, at 261–64, 372–73, 433–36.

47 Moore, supra note 1, at 96–99

48 Id. at 97.

49 Id. at 95. See supra note 21 and accompanying text.

50 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 442 (Judgment of Nov. 26).

51 Professor Reisman has made the same argument based on the doctrine of excès de pouvoir. Reisman, , Has the International Court Exceeded its Jurisdiction? , 80 AJIL 128 (1986)Google Scholar. Reisman also seems to have overlooked Article 94(1) of the UN Charter.

52 UN Charter art. 92.

53 See Statute of the International Court of Justice, Art. 60; UN Charter art. 94, para. 1.

54 Moore, supra note 1, at 99. See also id. at 99–101.

55 Article 38(1) of the ICJ Statute clearly confers authority on the Court “to decide in accordance with international law such disputes as are submitted to it.” See, e.g., United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 21–22 (Judgment of May 24) (merits).

56 Highet, , Litigation Implications of the U.S. Withdrawal from the Nicaragua Case , 79 AJIL 992, 1003 (1985)Google Scholar.