The United States has consistently taken the position that the proceedings initiated by Nicaragua in the International Court of Justice are a misuse of the Court for political purposes and that the Court lacks jurisdiction and competence over such a case.  The Court's decision of November 26, 1984, finding that it has jurisdiction, is contrary to law and fact. With great reluctance, the United States has decided not to participate in further proceedings in this case.
 
 US Policy in Central America

   United States policy in Central America has been to promote democracy, reform, and freedom; to support economic development; to help provide a security shield against those -- like Nicaragua, Cuba, and the USSR -- who seek to spread tyranny by force; and to support dialogue and negotiation both within and among the countries of the region.  In providing a security shield, we have acted in the exercise of the inherent right of collective self-defense, enshrined in the United Nations Charter and the Rio Treaty.  We have done so in defense of the vital national security interests of the United States and in support of the peace and security of the hemisphere.

   Nicaragua's efforts to portray the conflict in Central America as a bilateral issue between itself and the United States cannot hide the obvious fact that the scope of the problem is far broader.  In the security dimension, it involves a  wide range of issues: Nicaragua's huge buildup of Soviet arms and Cuban advisers, its cross-border attacks and promotion of insurgency within various nations of the region, and the activities of indigenous opposition groups within Nicaragua. It is also clear that any effort to stop the fighting in the region would be fruitless unless it were part of a comprehensive approach to political settlement, regional security, economic reform and development, and the spread of democracy and human rights.
 
 The Role of the International Court of Justice

   The conflict in Central America, therefore, is not a narrow legal dispute; it is an inherently political problem that is not appropriate for judicial resolution.  The conflict will be solved only by political and diplomatic means -- not through a judicial tribunal.  The International Court of Justice was never intended to resolve issues of collective security and self-defense and is patently unsuited for such a role.  Unlike domestic courts, the World Court has jurisdiction only to the extent that nation-states have consented to it.  When the United States accepted the Court's compulsory jurisdiction in 1946, it certainly never conceived of such a role for the Court in such controversies. Nicaragua's suit against the United States -- which includes an absurd demand for hundreds of millions of dollars in reparations -- is a blatant misuse of the Court for political and propaganda purposes.

   As one of the foremost supporters of the International Court of Justice, the United States is one of only 44 of 159 member states of the United Nations that have accepted the Court's compulsory jurisdiction at all.  Furthermore, the vast majority of these 44 states have attached to their acceptance reservations that substantially limit its scope.  Along with the United Kingdom, the United States is one of only two permanent members of the UN Security council that have accepted that jurisdiction.  And of the 16 judges now claiming to sit in judgment on the United States in this case, 11 are from countries that do not accept the Court's compulsory jurisdiction.

   Few if any other countries in the world would have appeared at all in a case such as this which they considered to be improperly brought.  Nevertheless, out of its traditional respect for the rule of law, the United States has participated fully in the Court's proceedings thus far, to present its view that the Court does not have jurisdiction or competence in this case.
 
 The Decision of November 26

   On November 26, 1984, the Court decided -- in spite of the overwhelming evidence before it -- that it does have jurisdiction over Nicaragua's claims and that it will proceed to a full hearing on the merits of these claims.

   This decision is erroneous as a matter of law and is based on a misreading and distortion of the evidence and precedent:
 
 -- The Court chose to ignore the irrefutable evidence that Nicaragua itself never accepted the Court's compulsory jurisdiction.  Allowing Nicaragua to sue where it could not be sued was a violation of the Court's basic principle of reciprocity, which necessarily underlies our own consent to the Court's compulsory jurisdiction.  On this pivotal issue in the November 26 decision -- decided by a vote of 11-5 -- dissenting judges called the Court's judgment "untenable" and "astonishing" and described the US position as "beyond doubt."  We agree.
 -- El Salvador sought to participate in the suit to argue that the Court was not the appropriate forum to address the Central  American conflict.  El Salvador declared that it was under armed attack by Nicaragua and, in exercise of its inherent right of self-defense, had requested assistance from the United States. The Court rejected El Salvador's application summarily -- without giving reasons and without even granting El Salvador a hearing, in violation of El Salvador's right and in disregard of the Court's own rules.

   The Court's decision is a marked departure from its past, cautious approach to jurisdictional questions.  The haste with which the Court proceeded to a judgment on these issues -- noted in several of the separate and dissenting opinions -- only adds to the impression that the Court is determined to find in favor of Nicaragua in this case.

   For these reasons, we are forced to conclude that our continued participation in this case could not be justified.

   In addition, much of the evidence that would establish Nicaragua's aggression against its neighbors is of a highly sensitive intelligence character.  We will not risk US national security by presenting such sensitive material in public or before a Court that includes two judges from Warsaw Pact nations.  This problem only confirms the reality that such issues are not suited for the International Court of Justice.
 
 Longer-Term Implications of the Court's Decision

   The Court's decision raises a basic issue of sovereignty. The right of a state to defend itself or to participate in collective self-defense against aggression is an inherent sovereign right that cannot be compromised by an inappropriate proceeding before the World Court.

   We are profoundly concerned also about the long-term implications for the Court itself.  The decision of November 26 represents an overreaching of the Court's limits, a departure from its tradition of judicial restraint, and a risky venture into treacherous political waters.  We have seen in the United Nations, in the last decade or more, how international organizations have become more and more politicized against the interests of the Western democracies.  It would be a tragedy if these trends were to infect the International Court of Justice.  We hope this will not happen, because a politicized Court would mean the end of the Court as a serious, respected institution.  Such a result would do grievous harm to the goal of the rule of law.

   These implications compel us to clarify our 1946 acceptance of the Court's compulsory jurisdiction.  Important premises on which our initial acceptance was based now appear to be in doubt in this type of case.  We are therefore taking steps to clarify our acceptance of the Court's compulsory jurisdiction in order to make explicit what we have understood from the beginning, namely that cases of this nature are not proper for adjudication by the Court.

    We will continue to support the International Court of Justice where it acts within its competence -- as, for example, where specific disputes are brought before it by special agreement of the parties.  One such example is the recent case between the United States and Canada before a special five-member Chamber of the Court to delimit the maritime boundary in the Gulf of Maine area.  Nonetheless, because of our commitment to the rule of law, we must declare our firm conviction that the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law.

In a decision rendered on November 26, 1984, the International Court of Justice: (1) by a vote of 11-5 (U.S., U.K., FRG, Italian and Japanese judges dissenting), found that Nicaragua and the United States had each validly accepted the Court's "compulsory jurisdiction" over Nicaragua's claims; (2) by a vote of 14-2 (U.S. and Argentine judges dissenting), found that a 1956 Treaty of Friendship, Commerce and Navigation (the "FCN Treaty") between Nicaragua and the United States also vested the Court with jurisdiction insofar as Nicaragua's claims arose under the FCN Treaty; (3) by integrating the 11-5 and 14-2 votes, held 15-1 that it had jurisdiction "to entertain the case"; and (4) by a vote of 16-0 (U.S. and U.K. judges expressing reservations), held that Nicaragua's claims were "admissible" (i.e., justiciable) because they were "not about an ongoing armed conflict" and thus did not present a dispute that, under the United Nations Charter, may be addressed only to the political organs of the United Nations.

    Each of the Court's holdings ignores or seriously misstates the evidence and law relevant to the issues before the Court. In brief, the Court:
 
-- Misconstrues the plain language of its own Statute.
 
-- Overrules its own prior holdings on at least two dispositive issues -- the meaning of the provision in the Court's Statute carrying over acceptances of the compulsory jurisdiction of the Permanent Court of International Justice to the present Court, and the necessity that a State comply with the legal requirements set forth in the Statute in order to accept the Court's compulsory jurisdiction.
 
-- Ignores the terms and unequivocal legal implications of Nicaragua's own pleadings on two other issues -- whether Nicaragua's claims present a dispute involving an ongoing armed conflict, and whether the Central American States other than Nicaragua will be affected by any decision in the case.
 
-- Renders meaningless a reservation to the United States 1946 declaration excluding certain multilateral disputes from the United States acceptance of the Court's compulsory jurisdiction by deciding that the meaning and applicability of the reservation can be determined only after the case has been adjudicated on the merits.

-- Ignores the overwhelming weight of evidence and legal authority on several key issues, although that evidence and authority were briefed by the parties in extensive detail.
 
 I.  The Court's finding that Nicaragua's claims come within its "compulsory jurisdiction"
 
 A.  The Court's finding that Nicaragua had accepted the Court's compulsory jurisdiction

   Under the Court's Statute, a State may accept the Court's "compulsory jurisdiction" in one of two ways: a State may file a declaration with the Secretary-General of the United Nations (Article 36(2) and (4) of the Statute); or a State that had made a declaration accepting the compulsory jurisdiction of the Permanent Court of International Justice that was "still in force" when the Charter of the United Nations came into force is "deemed" to have accepted the present Court's compulsory jurisdiction (Article 36(5)).  Nicaragua had not filed a declaration with the Secretary-General under Article 36(2) and (4).  An 11-5 majority of the Court found that Nicaragua should be "deemed" to have accepted the Court's jurisdiction pursuant to Article 36(5).  Specifically the majority found that a Nicaraguan declaration made in 1929 under the Permanent Court -- although never effective for that Court because the Court's constituent treaty, adherence to which was a legal precondition to the effectiveness of the declaration, had not been ratified by Nicaragua -- became effective for the present Court through Nicaragua's ratification, and the entry into force, of the United Nations Charter in 1945.

 The Court's theory is impossible to reconcile with the plain, consistent texts of four of the five authentic languages of the Charter, which state that only declarations "still in force" in 1945 would have legal effect for the present Court.  Nicaragua's declaration was manifestly not "still in force" in 1945 since, by Nicaragua's own admission, it had never been in force. The British judge correctly concludes that the plain text of the Court's Statute indicates "beyond doubt" that Nicaragua cannot be deemed to have accepted the Court's compulsory jurisdiction under Article 36(5).  The majority seeks to circumvent this conclusion by relying entirely on a minor divergence in the  French text and insisting that the divergence denotes "an intention to widen the scope of Article 36, paragraph 5." In fact, the French delegation in San Francisco in 1945 explicitly said the change in the French text was "not substantive" and was not intended to depart from the other texts.
 
  The Court's jurisdictional theory was explicitly rejected as "impossible" in an opinion by the Court's own Registrar in 1955.  The Court makes no reference to this opinion, although it was repeatedly discussed by the United States in its presentation of the case.
 
  The Court's theory under Article 36(5) is directly contrary to all contemporaneous accounts of the UN Charter and to the published opinions of every scholar who has examined the issue, including the leading experts on the Permanent Court and the current Court.  The court's opinion does not mention these authorities.
 
  The Court's theory is flatly inconsistent with two prior decisions of the Court (the Aerial Incident and Barcelona Traction cases).  The Court ignores the relevant parts of these decisions except to extract out of context quotations that are, in any event, irrelevant to the issue before the Court.  Elsewhere these decisions reject unequivocally the interpretation of the Court's Statute relied upon by the Court in the Nicaraguan case.
 
  The Court's theory can, in effect, be reduced to the view that pertain provisions of the Court's Statute were drafted specifically so that only one State -- Nicaragua -- would be deemed to consent to the Court's compulsory jurisdiction for the first time by ratifying the Charter. The Court offers no evidence whatsoever supporting this conclusion.
 
  The Court ignores the fact that Nicaraguan diplomatic records contemporaneous with Nicaragua's ratification of the United Nations Charter that examine the implications of Nicaragua's ratification in considerable detail do not indicate that Nicaragua itself considered the Charter to bind Nicaragua to the Court's compulsory jurisdiction.
 
  The Court also ignores the fact that the United States made its own declaration in 1946 on the explicit  understanding, reflected in State Department and Senate Foreign Relations committee documents, that Nicaragua was not among the States that had accepted the compulsory jurisdiction of the Permanent Court.  Thus, Nicaragua's declaration was expressly understood by the United States as not being among those that were "still in force" upon the entry into force of the U.N. Charter.
 
  Nicaragua's Agent represented to the court in April, 1984 both in a letter and in oral argument, that Nicaragua had, in fact, ratified the legal instruments necessary to accept the Permanent Court's jurisdiction in the 1930's. Nicaragua made no reference in its original pleadings or in the lengthy oral arguments in April to the U.N. Charter as binding Nicaragua to the new Court's compulsory jurisdiction in 1945.  In later pleadings and arguments Nicaragua changed its legal theory and admitted that its representations to the Court in April were false.  The majority of the Court does not mention these misrepresentations and fundamentally inconsistent shifts of legal theory by Nicaragua.  The Court, moreover, accepts the attestations of Nicaragua's Agent that Nicaragua had complied in 1935 with all of the steps necessary under Nicaraguan law to permit Nicaragua's President or Foreign Minister to ratify  the legal instruments necessary to accept the Permanent Court's compulsory jurisdiction; in fact, the only contemporaneous evidence before the Court proved exactly the opposite.

    Ten members of the Court also found that, even if ratifying the Charter had not brought Nicaragua's 1929 declaration into force, Nicaragua's conduct since 1945 sufficiently demonstrates its consent to accept compulsory jurisdiction to satisfy the Court's Statute.
 
  In fact, before the case, no Nicaraguan official had ever stated that Nicaragua was bound by the jurisdiction of either the old or the new Court. United States diplomatic records clearly show that in 1943, 1955, and 1956 top Nicaraguan officials represented to the United States that Nicaragua did not consider itself bound.  These records were the only evidence of Nicaragua's conduct presented to the Court and were unrebutted.  Indeed, Nicaragua introduced documents from its files showing that it had been advised in 1956 by its own counsel to file a new declaration accepting the Court's jurisdiction because the 1929 declaration was not binding.
 
  In support of this theory of jurisdiction, the Court relies entirely on Nicaragua's failure to challenge Nicaragua's inclusion over the years in various lists of States that have accepted the Court's jurisdiction.  The Court ignores the facts that (a) the publications in question specifically disclaim to be authoritative; and (b) the publications either include express qualifications of Nicaragua's status or are based on other publications with such qualifications.

  Furthermore, the listings on which the Court relies clearly state that they are predicated solely on Nicaragua's having brought its acceptance of the Permanent Court's compulsory jurisdiction into "force" by ratifying the necessary legal instruments in 1939 -- an action Nicaragua now admits it never took.  Thus, the listings on which the Court's decision rests are directly inconsistent with the legal theory of that decision -- that Nicaragua became bound to the Court's compulsory jurisdiction only in 1945 when it ratified the U.N. Charter and the Charter came into force.  For these reasons, British Judge Jennings described the Court's reliance on the listings as "startling."
 
  In the 1962 Temple case, the Court held that compliance with the procedures set forth in its Statute was mandatory in order for a State to accept the Court's compulsory jurisdiction.  The Court acknowledges that Nicaragua did not comply with those procedures.  The court's decision thus can only be seen as overruling its holding in the Temple case that those procedures are indeed, mandatory.
 
 B.  The Court's finding that the United States had consented to jurisdiction over Nicaragua's claims

   (i) The United States Multilateral Treaty Reservation

   In its 1946 Declaration accepting the Court's compulsory jurisdiction, the United States excluded "disputes arising under a multilateral treaty, unless all parties to the treaties affected by the decision are also parties to the case before  the Court." The United States did so because it did not wish to be bound by a treaty interpretation unless other affected parties to a dispute were similarly bound.  The Court determined that it could decide whether any absent States would be "affected by" its judgment only after the case had been  adjudicated on the merits and therefore refused to dismiss now Nicaragua's claims arising under multilateral treaties.
 
  The Court ignores the explicit representations of all four of the Central American States other than Nicaragua that they would, in fact, be affected by any decision of the Court in this case.
 
  The Court also ignores Nicaragua's own pleadings, which repeatedly name other Central American States and indisputably implicate them in Nicaragua's allegations against the United States.
 
  The Court, in effect, renders the United States multilateral treaty reservation a nullity since the very purpose of the reservation was to withhold consent to adjudication in the absence of interested treaty parties. The Court's ruling requires adjudication before jurisdiction may be decided under the reservation.  The multilateral treaty reservation thus can never exclude adjudication of the merits of a case such as this, even though that was the purpose of the United States in making the reservation when it accepted the Court's compulsory jurisdiction in 1946.

    (ii) The United States Notice of April 6, 1984 indicating that the United States would not accept the Court's jurisdiction over Nicaragua's claims

   The Court (with the US, British, and Japanese judges strongly dissenting) found that the April 6 notice modifying U.S. acceptance of the Court's compulsory jurisdiction could only be effective after six months because the United States 1946 Declaration contains a six-month termination clause. Although the April 9 notice did not "terminate" the United States declaration, the Court nevertheless held the termination clause applicable.  The Court also said that the possibility that Nicaragua could terminate its own declaration (assuming it was valid) on shorter notice was entirely irrelevant and not subject to the principle of reciprocity underlying all acceptances of the Court's compulsory jurisdiction.
 
  By binding the United States to its 38-year-old termination clause, the Court's holding ignores intervening State practice and hence customary international law. Indeed, the Court does not even examine that practice in reaching its decision.  The Japanese judge in his separate opinion says he is "astonished" at the holding because "it seems that the Court is quite unaware of the development of the Optional Clause during the past decades . . . ." In particular, the Court ignores the fact that a number of States have modified their declarations with immediate effect in order to avoid jurisdiction and that States have been allowed to withdraw from the United Nations entirely on only 24 hours notice.
 
  The most analogous case on this issue was the Right of Passage case between India and Portugal, in which the Court closely examined the nature of declarations accepting the Court's jurisdiction and the right of States to modify those declarations.  The United States explained in great detail in both its written and oral pleadings why the logic of that decision required the Court to give effect to the April 6 notice.  The Court does not mention the decision or the United States arguments.
 
  The Court's holding also attributes a limitation on Nicaragua's right to terminate its own 1929 declarations no such limitation appears in the  declaration, nor is such a limitation supported by State practice.
 
  The Court holds that, even were Nicaragua able to terminate its declaration without notice, the United States would still be unable to exercise the same right on the basis of reciprocity -- even though reciprocity is the fundamental principle underlying the Court's jurisdiction generally and was an explicit condition to the United States acceptance of the Court's compulsory jurisdiction in 1946.
 
 II.  The Court's Finding of Jurisdiction Under the FCN Treaty

   The Court noted that the 1956 FCN Treaty has a clause permitting referral to the Court of disputes under the Treaty "not satisfactorily adjusted by diplomacy," and held that it has jurisdiction to determine whether any of Nicaragua's claims  are violations of the Treaty.  (The resulting jurisdiction would be much narrower than the general "compulsory jurisdiction" of the Court's first theory.)
 
  Nicaragua did not cite the FCN Treaty in its original pleading despite explicit requirements in the Court's rules and precedents indicating that all jurisdictional bases have to be specified at the outset.  Further, Nicaragua failed even to discuss the Treaty in nearly eight hours of oral argument in April and nearly eight hours of additional argument in October.  The Court thus relied upon a jurisdictional basis that Nicaragua itself cannot be considered to have argued seriously.
 
  The jurisdictional clause of the FCN Treaty by its terms only applies to disputes "not satisfactorily adjusted by diplomacy," and Nicaragua had never raised the question of Treaty violations in diplomatic discussions with the United States.  The Court dismissed this objection, interpreting the Treaty, despite its plain languages not to require any efforts at diplomatic resolution before a party may apply unilaterally to the Court.
 
  The FCN Treaty on its face deals entirely with commercial matters in the treatment of one country's nationals in the territory of the other; it has nothing to do with allegations about the use of force.  This is confirmed by an exclusionary clause in the Treaty providing that it "shall not preclude the application of measures regulating traffic in arms or necessary to protect a party's essential security interests." The Court ignores all of these provisions even though they were fully briefed by the United States and Nicaragua did not contest the U.S. interpretation.

   III.  The Court's Holding that the Case is Admissible

   The Court rejected several arguments by the United States that Nicaragua's claims were inadmissible (i.e., non-justiciable), most notably the United States argument that disputes of this nature are entrusted by the United Nations Charter to the political organs of the UN, not the Court.
 
  The United States adduced extensive evidence and expert opinion demonstrating that the drafters and signatories of the United Nations Charter envisioned that disputes of this nature would be resolved by the political organs of the UN.  The Court ignored this evidence and cited no evidence whatsoever indicating that the drafters or the signatories of the Charter considered the Court an appropriate forum for such disputes.
 
  Nicaragua specifically stated in its pleadings that its claims before the Court were identical to those it had made before the Security Council alleging that United States actions were a "threat to the peace, breach of the peace, or act of aggression" -- language taken verbatim from Article 39 of the Charter, which vests the authority to make such determinations exclusively in the Security  Council.  Nicaragua reiterated this claim at great length over many hours of oral hearings.  The Court simply ignored the terms of Nicaragua's own pleadings and oral argument and decided that the Nicaraguan complaint was "not about an ongoing armed conflict."
 
  The Court cited the Corfu Channel and Aerial Incident cases as establishing the Court's competence to determine the lawfulness of an alleged use of armed force.  The United States pointed out that neither of those cases involved an alleged use of force that was actually in progress, so as to engage the competence of the Security Council under the Charter.  The Court dismissed this crucial distinction only by stating that it was "not relevant."
 
  Article 51 of the Charter provides that nothing in the Charter, short of Security Council action, shall impair the inherent right of States to individual and collective self-defense.  The Security Council, five days before Nicaragua filed its case with the Court, declined to grant Nicaragua the same relief it requested from the Court. Although both governments admitted in their pleadings that claims to self-defense were central to the case, the Court ignored Article 51 and its express prohibition of action to limit the right of self-defense by United Nations organizations other than the Security Council.
 
  The Court relied heavily on the Iran Hostages case in claiming the competence to adjudicate a situation of alleged ongoing armed hostilities.  The Court ignored the  facts that in the Hostages case: (a) no question of an ongoing unlawful use of force was before the Court; (b) the issues before the Court were entirely distinct from those before the Security Council so that the Court could pass upon the narrow legal claims of the United States without in any way interfering with a matter before the Council; and (c) Iran had specially consented, in various international agreements, to have the questions before the Court submitted to the Court in the event of a dispute. All these factors were dealt with in detail in the United States written and oral pleadings; the Court's November 26 judgment does not respond to them.
 
  The Court made light of the extraordinary evidentiary problems presented by the case: the absence from the case of many of the parties directly involved, namely, the other Central American States and the various insurgents, including both those in Nicaragua and those supported by Nicaragua in the territories of its neighbors; the constantly shifting facts in related, ongoing armed conflicts within or across the borders of several countries and in difficult terrain; and the obvious unwillingness or inability of some parties to disclose to a court evidence that would compromise their intelligence sources in the very midst of an armed conflict.
 
  The essence of the Court's ruling is that it may preside over ongoing armed hostilities, assessing relative fault and directing the parties on the proper use of force in the midst of the hostilities, in the midst of negotiations among the parties to the hostilities, and despite Security Council oversight.