The things we choose to care about: ICJ decision on the Contra Affair

There is a scene in The West Wing where the president and his chief of staff are discussing an attempt to bring a foreign leader to trial in the US for using his position to support terrorists. The chief of staff says that they have to make sure that his plane lands in D.C. proper and not one of the nearby airports in Virginia or Maryland to ensure that a federal court has jurisdiction. The president just smiles and shakes his head, and then says, “You know, the law cracks me up sometimes. The things we choose to care about…”

This is precisely how I felt recently when I read the ICJ decision in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States). For Model UN geeks like myself this is a fairly famous and significant case for establishing the so-called effective control rule. In its 1986 decision, the court established the rule that if a state has effective control over a foreign violent non-state actor, in this case the Contras, then the state has some responsibility for the group’s actions. However, that is not what I’m going to be talking about here. Instead, I’m going to focus on the less well known 1984 decision in the same case on preliminary objections raised by the US government, because it really does leave you shaking your head and makes you ask why any of this matters.

The US objected to the jurisdiction of the court to even entertain the case. In this particular case, Nicaragua’s claim to jurisdiction was based on declarations. The Statute of the ICJ allows parties to make declarations accepting the jurisdiction of the Court in certain areas of international law and spells out what restriction and conditions, like reciprocity, may placed on the these declarations. The United States had made such a declaration in 1946, and was found to be in good standing.

The issues were with Nicaraguan declaration, arising from a small but significant divergence between the French and English texts of the Statute of the Court. The Statute has provisions setting up the ICJ as a successor the to the Permanent Court of International Justice, the judicial body of the League of Nations. The PCIJ allowed for similar declarations, so the Statute basically says that declarations made for the PCIJ also apply to ICJ. The issue is that the English text refers to “declarations…which are still in force”, whereas the French text refers to “déclarations faites…pour une durée qui n’est pas encore expirée” (declarations made for a duration which has not yet expired). While these expressions obviously mean very different things, cases in which a declaration is included by one formulation, but excluded by the other are not going be common. However, Nicaragua’s declaration is precisely such a case. The declaration was made unconditionally and without temporal limits, so clearly for a duration, which had not expired, but it had never entered into force (at least for the PCIJ).

The reasons why this happened is where you get the “things we choose care about” moment. In 1929, Nicaragua’s ambassador in Geneva on instructions from President Jose Maria Moncada made a declaration accepting the jurisdiction of the PCIJ. However, unlike ICJ declarations, PCIJ declarations were subject to ratification. This took a while, but in 1935, the Nicaraguan parliament ratified the declaration. Despite all of this, the declaration never entered into force, because an instrument of ratification was never deposited with Secretary-General of the League of Nations. The reason for this is that it never made it to Geneva. It was sent by sea a few years later, but, with World War Two having broken out, the ship it was on was sunk by German U-boats. And so because of a seemingly unrelated act of economic warfare some fifty years prior, the jurisdiction of the ICJ was called into question.

In the end, the Court ruled that Nicaragua’s declaration did fall within the scope the succession provisions and had entered into force when Nicaragua joined the UN, but it really does make me echo Jed Bartlet’s sentiments: “The law cracks me up sometimes.”