The Nuclear Challenge (9): 70 Years After Hiroshima and Nagasaki: Nuclear Zero Litigation
[Prefatory Note: Two prior posts, The Nuclear Challenge (1) & (2) address indirectly the efforts of international law and lawyers to highlight the clash between international law and nuclear weapons. In this post I combine a focus on international law with a continuation of the inquiry into the role of civil society activism that was the theme of The Nuclear Challenge (8). Here I attempt a more concrete gaze at the promise and limitations of international law as a policy instrument available to governments and citizens committed to the goal of a world without nuclear weapons. The Nuclear Zero Lawsuits filed by the Republic of the Marshall Islands on April 24, 2014 provide an occasion for such an appraisal. This litigation reflects opposed counter-currents. It is both an encounter with geopolitical nuclearism and a mode of global consciousness-raising at a time of dangerous complacency about the threats posed by the continuing possession and deployment of nuclear weaponry, as well as the warping of the security mind by supposing that human security can ever be ethically and effectively safeguarded by current strategic thinking surrounding the varying roles assigned to this weaponry by the military planners and political leaders of the nine nuclear weapons states. The text below contains some revisions and corrections of the original post, mainly reflecting my attempt to take account of constructive feedback.]
From the time of the atomic explosions at the end of World War II there have been two contradictory sets of tendencies at work: the repudiation of the weaponry and its contemplated uses as ultimate criminality and the secret feverish refinement of the weaponry to enhance its precision, destructive effects, battlefield capabilities, and delivery systems. To date, the latter tendency has prevailed, but so far, contrary to the worst fears, avoiding uses (but not without unlawful threats to use, think tank proposals for use, and high alert international crises containing unseemly dangers of nuclear war).
From the beginning international law was a tool relied upon by those who challenged the legitimacy of both the atomic attacks themselves and the later developments and doctrines associated with the weaponry and its central role in the superpower rivalry at the core of the Cold War. In the immediate aftermath of the atomic attacks on Japan, there were many governmental pronouncements in the West about nuclear disarmament as an imperative of human survival, and it was widely assumed in the public that international law through the medium of a negotiated treaty containing procedures to assure compliance by all parties was the correct approach to unconditional declearization and principled repudiation of the weaponry, and this remains the consensus view of pro-disarmers at present.
Especially the UN General Assembly from the outset of the nuclear age was a political venue within which the criminality of the weaponry was confirmed, although gradually the impact of nuclear geopolitics moved disarmament off-stage and shifted policy attention to the supposedly more realistic goals of managing the nonproliferation regime and minimizing the spread of the weaponry. As discussed in previous posts, whatever political energy for a world without nuclear weaponry existed has been transferred over time to a variety of civil society venues. During the Cold War, Europe was the most likely military theater for a nuclear confrontation, accounting for a variety of anti-nuclear movements and initiatives. The Campaign for Nuclear Disarmament (CND) in Britain being the best known, but also the German Green Party gained anti-nuclear prominence. Since the end of the Cold War the most activist anti-nuclearism has been associated with advocacy and educational efforts that were oriented around the presumed authoritativeness of international law as reinforced by political commitment and international morality in two major respects:
–the unconditional unlawfulness of the weaponry with respect to threat, use, deployment, possession, and development;
–a reliance on a treaty-making approach to achieve nuclear disarmament by carefully calibrated stages, and subject to monitoring, verification, compliance, and dispute settlement procedures, and containing robust response mechanisms in the event of non-compliance or cheating.
In other words, both the case against all facets of nuclearism as presently operative and the framework proposed for its elimination through a process of total denuclearization are both guided and governed by international law.
At the same time, there are difficulties with an uncritical acceptance of this centrality of international law. First, the evidence is strong that the nuclear weapons states, above all the United States, will not override its security policies as related to nuclear weapons or other vital concerns of foreign policy out of deference to international law. This official lawlessness exists even in the face of assessments of international law enjoying the strong backing of the International Court of Justice, the world’s highest judicial body. The 1996 Advisory Opinion of the ICJ reached two conclusions that should have led to operational adjustments in the announced doctrine and political behavior of governments possessing nuclear weapons: (1) nuclear weapons were only lawfully usable, if ever, when the survival of the state was credibly at issue; and (2) a unanimous views among the judges that the nuclear powers had a good faith obligation to negotiate both an end to the arms race and a disarmament plan, and what is more, and should not be overlooked, that these governments had “an obligation..to bring to a conclusion negotiations leading to nuclear disarmament.”
True, this was an advisory opinion, not formally binding on the parties, leading to diverse views as to legal weight of the findings. Also it was the case that the ICJ judges were badly divided, with a slim majority (and even that resting on the President’s second casting vote to break a tie) favoring the view of conditional unlawfulness of the weaponry. Actually, the unlawfulness side was stronger than it seemed by looking only at the vote on the central finding of severely qualified legality as three of the ICJ judges were so committed to unconditional unlawfulness that they refused to support the majority conclusion, which was deliberately made consistent with a very narrowly construed deterrence doctrine. What is more notable is that the nuclear weapons states paid not the slightest operational attention to what these most distinguished judges from the world’s main legal system had determined in the only systematic international review of the arguments about legality that had gone on since the first atomic explosion in wartime (a persuasive national review was set by a Japanese court in the important Shimoda case) . This disdain for the relevance of international law was apparent even before the ICJ issued its advisory opinion, taking the form of the vigorous opposition led by the United States to the General Assembly referral of the question of legality to the World Court, insisting, in effect, that a judicial interpretation of international law was not relevant to the status of nuclear weapons. The substantive claim being made was that the U.S. Government was as it was doing all that it could reasonably do to reduce risks of nuclear war, through arms control, nonproliferation, and deployment policies. Any more foundational judgment was thus deemed inappropriate and misleading. Further, that the ICJ was a judicial body not equipped to evaluate security policy, and thus at best relying on ‘moral’ and ‘political’ considerations couched in legal language.
The same line of reasoning was relevant with respect to the second conclusion relating to the NPT obligation to negotiate in good faith and with an end in view. What was already being done supposedly fulfilled the Article VI obligation of the nuclear weapons states, and the Court had neither the information or the expert competence to pronounce otherwise, although the judges unanimously acted as if they did have the needed knowledge, and hence an institutional responsibility to pronounce their views as to the legality of nuclear weaponry and the requirements of compliance with the NPT.
I think a clear picture evolves. The nuclear weapons states accord primacy to geopolitical policies when in tension with international law, especially on crucial issues bearing on the conduct of warfare and the shaping of peacetime security policies. The geopolitical consensus accepted by all nine weapons states is to disregard or sideline the purported relevance of international law. In reaction to this consensus there is some huffing and puffing by nonnuclear governments, but no political will to mount a challenge on even such a tangential issue as non-compliance with the Article VI obligation, a clear material breach of the NPT. This combination of geopolitical nuclearism and passivity by the members of international society other than ‘the nuclear nine’ has meant that it is up to each of this latter group of states, as a matter of sovereign discretion, to determine what its policies on deployment, threat, and use will be, and whether it will agree or not to specific arms control measures. And because government security policies are treated as the most carefully guarded of all state secrets, there is no meaningful democratic participation, including even by most elected or appointed government officials, and neither knowledge nor leverage by the citizenry. Every government possessing nuclear weapons is authoritarian, with only the head of state having the non-reviewable and unaccountable authority to decide whether and when to use nuclear weaponry against which targets and with what magnitudes of destructive power.
Left to carry on the campaign to rid humanity of the nuclear menace are the disparate and somewhat incoherent forces of civil society as receiving varying degrees of encouragement from non-nuclear states. At times of global crisis, as occurred periodically during the Cold War, these forces from below can be aroused to sound a loud alarm that has some resonance at the political center, but mainly this kind of societal pressure demands prudence and restraint rather than compliance with international law, and gains satisfaction from tiny incremental moves taken to step back from the nuclear precipice. With the decline of anxieties about possible confrontations between major nuclear weapons states after the end of the Cold War, there is mostly evident a mainstream law emphasis on the ‘enforcement’ of the NPT directed at non-nuclear states perceived as seeking to acquire nuclear weapons.
Behind these developments, off to one side, are persevering efforts to insist on the unlawfulness of the weaponry and on gaining support for using the existing legal machinery of states and world society to push harder on the arguments of illegality. As has been pointed out, such efforts even if successful, are unlikely to make the steep climb up the geopolitical mountains on top of which are located the nuclear weapons arsenals. Yet that does not make the struggle to empower law with respect to nuclear weaponry without meaning or irrelevant to a survivable future. The outcome of the ICJ Advisory Opinion on legality, despite the unwelcome outcome of being defiantly deflected by the nuclear weapons states, did have the positive effects of strengthening the political will and morale of anti-nuclear activists and their organizations throughout the world, and even making non-nuclear governments more aware that the nuclear nine were not fulfilling their part of the NPT bargain.
One notable expression of this heightened political will was the initiation of litigation in ICJ and American federal courts by the Republic of the Marshall Islands (RMI) based on the alleged treaty failure to implement Article VI of the NPT by the nuclear weapons states that are parties to the treaty, and by customary international law for India, Pakistan, Israel, and North Korea (having withdrawn from the treaty in 2003) that are not. Such litigation was grounded in the unanimous conclusion of the ICJ that good faith obligation to negotiate a nuclear disarmament arrangement that needed to be brought to a conclusion. In the 19 years since the Advisory Opinion there have been persuasive confirmations that the nuclear nine were not at all disposed to seek nuclear disarmament, making it highly reasonable for any non-nuclear party to the NPT to mount such a legal argument based on non-compliance, and indeed material breach of treat obligations.
And what country, other than Japan, had a greater moral and political entitlement to do so than the Marshall Islands? RMI lacks a legal entitlement due to Compact of Free Association, and that creates a certain awkwardness in putting forward the allegations of non-compliance with the disarmament obligations of Article VI as the real motivation arising from the legacy, harm, and memories of the nuclear testing cannot be relied upon it putting forward its legal arguments. In an important respect the past matters less than the future, and the only reason to invoke RMI vicitimization as a result of the testing is to create a stronger atmosphere of receptivity in the International Court of Justice in deliberating on the subtleties of the jurisdictional controversy and to pay a deserved homage to those from RMI who paid such heavy costs due to the harm inflicted by the tests.
This archipelago of 1156 islands and islets occupying 750,000 square miles of ocean space in the Pacific was taken over from Japan by the United States after World War II, and formally given the status of Trust Territory of the Pacific Islands (a political entity that included several other Pacific island groups) by the United Nations in 1947. The tiny population of 68,480 lives on 29 coral atolls. In a most dramatic betrayal of trust imaginable the United States used the Marshall Islands as the principal test site without consulting the indigenous population or seeking their consent. 67 atmospheric nuclear tests were conducted between 1946 and 1958. The largest was code named Castle Bravo and had an explosive magnitude of 15 megatons, which is 1000 times the force of the bomb was dropped on Hiroshima. As a result of this nuclear testing the people of the Marshall Islands have endured a variety of severe harms, ranging from forced evacuation and displacement, radiation sickness that continues to be prevalent, and environmental damage that appears to be permanent. There is a mechanism that has allowed Marshall Islanders to gain compensation from the United States for harm that can be persuasively attributed to the nuclear tests, but at the cost of waiving the pursuit of claims elsewhere as a result of the Compact of Free Association linking RMI to the United States. This mechanism continues to operate as a consequence of the fact that the effects of exposure to high doses of radiation may now result in cancer or genetic defects for many years.
The legal theory behind the case rests on the legal proposition that the Marshall Islands in common with all other parties to the NPT have a legal right to insist on compliance with Article VI. This provides RMI with a basis for arguing that a legal dispute exists with the nuclear weapons states emanating from this alleged treaty breach. RMI contends also as with every state in the world that if a nuclear war occurs, it would be severely harmed as the detrimental effects would be global, impacting upon the security and wellbeing of the Marshall Islands, and indeed of all peoples living on the planet. For the case to be accepted for adjudication by the ICJ a majority of the 15 judges must agree that a ‘legal dispute’ exists between the complaining state and the states accused of being in breach. The wheels of international justice turn slowly, if at all, and it remains to be determined, and I can only hope that the legal team representing the RMI will convince enough of these judges sitting in The Hague to clear this high jurisdictional hurdle. Only then can the court proceed to hear arguments and render a judgment on the merits. This litigation before the ICJ if it goes forward will result in ‘a decision,’ which unlike the 1996 Advisory Opinion is obligatory, and can in theory be enforced by the Security Council acting under Article 94. Any enforcement attempt along these lines could be vetoed by one of the five permanent members, and almost certainly would be. The NPT gives states that are parties the legal option to bring a legal dispute before the ICJ, and every state in the world, including the four nuclear powers that are not parties to the NPT are allegedly also subject to its authority by way of customary international law, which may seem a stretch given the jurisprudential conservatism of the ICJ in the past. The legal reasoning supportive of this extension of customary international law is based on the proposition that the NPT has been so widely adhered to and so fundamental to world order that it has become binding whether or not a country is a party, that it is ‘a lawmaking treaty’ on matters vital to the wellbeing of humanity and that it is obligatory for the entire community of states.
This line of argument raises a complex jurisprudential issue for the ICJ as the legal reasoning goes against the earlier consensus that an attribute of national sovereignty is the option to remain outside of an international legal framework, and even to dissent from it. From the development of progressive international law, this litigation presents a great opportunity for the ICJ to align itself with the authority of international law in the area of war and peace, as well as with respect to global security and human wellbeing in the nuclear age.
The companion case filed by the Marshall Islands in a Federal District Court resulted in a dismissal on February 3, 2015 resting on the highly questionable notion that the alleged damage to the Marshall Islands was too speculative to qualify as a legal interest that a court of law should adjudicate, and that the issue raised was, in any event, precluded by judicial review as a result of the Political Question Doctrine (PQD), which has led past courts to dismiss international law claims bearing on national security and foreign policy.
Such dismissals invoked separation of powers reasoning and regressively ignores the relevance of international law to the lawfulness of foreign policy, which occurred in stages since the initial formulations of PQD in a period when recourse to war was not covered by international law. Unfortunately, PQD has been interpreted by American courts to mean that such issues are not for the courts to decide, but are matters of foreign policy that should be resolved within the exclusive domain of the executive branch. Accordingly, the judiciary should not venture an assessment of this kind of challenge to security policy even if formulated by reference to a treaty obligation, which the U.S. Constitution explicitly avows as ‘the supreme law of the land.’ This dismissal of the RMI initiative has been appealed to the Court of Appeals of the Ninth Circuit in San Francisco for review and decision. The continuing invocation of PQD in cases of this kind is to restrict severely the prerogatives of the citizenry to ensure that their elected representatives uphold international law and accept the applicability of a global rule of law when it comes to foreign policy.
Whatever the eventual outcome of these parallel judicial initiatives, the cases have already had a significant civil society impact, which has been galvanized by the law suits, acting to raise public awareness of their potential importance. The Nuclear Age Peace Foundation has played a central role in this undertaking in the realm of public education. It has taken the lead in fashioning a consortium of more than 90 civil society organizations supportive of the litigation, and through its websites it has tracked the progress of the cases through the courts in a manner that is both educative and energizing. Whether this litigation can ignite the sort of transnational collaboration between governments and civil society organization in the manner that proved so successful in generating support for an anti-personnel land mines treaty and for the International Criminal Court remains to be seen. Such a positive outcome for an anti-nuclear grassroots and moderate government coalition can only be conjectured at this point, but such a result would be no more surprising than establishing the ICC over the objections of the world’s leading geopolitical actors.
These law suits have also brought much wider and overdue attention to the nuclear exploitation of the Marshall Islanders, as well as admiration for the willingness of this tiny stressed and subordinated polity to put forward such a controversial legal argument, especially considering that their own security and economic viability is so linked to the good will of the United States embodied in a paternalistic ‘compact’ (Compact of Free Association with the United States) that entered into force as the trust status was superseded in 1988 when the Marshall Island became “a presidential republic in free association with the United States.” In tangible terms this has meant that the United States has accepted responsibility for the defense and protection of the Marshall Islands and for granting a range of economic subsidies, and in exchange retains use of a missile test site on Kwajalein Atoll, undoubtedly a reminder of the years when the island group was the principal site for developing new generations of nuclear weaponry.
It is pathetic that it has taken so many decades to mount this very limited legal challenge to nuclearism and that the challenge is being made by this small and vulnerable republic while the rest of the governments throughout the world continue to sit on their hands while nuclearism remains essentially unchallenged. To remove all doubts as to its future expectations, the U.S. Government has budgeted $1 trillion over the next thirty years to keep its superior nuclear capabilities up to date so as to ensure its continuing dominance of the outer frontiers of nuclear security strategy. We can only at this stage be thankful to the RMI for embarking on these nuclear lawsuits, and wish that the judicial bodies given this great opportunity to apply international law in a manner directly related to the wellbeing, and indeed the survival, of humanity, will respond appropriately.
Global Justice in the 21st Century 
The Spiritual Sources of Legal Creativity: The Legacy of Father Miguel d
31 Oct[Preliminary Remarks: What follows is the modified transcript of a talk given at Fordham University School of Law honoring the memory of the recently deceased Maryknoll priest, Father Miguel d’Escoto, who had been both the Foreign Minister of Sandinista Nicaragua and President of the UN General Assembly, as well as pastor to the poor in the spirit of Pope Francis, an extraordinary person who fused a practical engagement in the world with a deeply spiritual nature that affected all who were privileged to know and work with him.]
THE INAUGURAL FR. MIGUEL D’ESCOTO
MEMORIAL LECTURE: “THE SPIRITUAL SOURCES OF LEGAL CREATIVITY”
October 24, 2017
Program
Fordham University School of Law
150 West 62nd Street Room 3-03
Chair:
Kevin M. Cahill, M.D.
University Professor, IIHA, Fordham University
Lecturer:
Richard A. Falk
Professor Emeritus, Princeton University School of Law
Discussant:
Martin S. Flaherty
Leitner Family Professor of Law, Fordham Law School
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It is a humbling honor to speak at this gathering of remembrance dedicated to a truly great human being who inspired and touched the lives and activities of so many of us in this room. Kevin Cahill is among those here who had such an intimate and sustained friendship with Father Miguel. Kevin is also a person with his own abundant inspirational gifts, and I remain deeply grateful to him for originally bringing me into contact with Miguel.
Others here today could assuredly speak more knowingly about the person. I will only offer this personal observation: Miguel exhibited a remarkable quality of moral radiance that was immediately apparent to all those fortunate enough to cross his path. The only person in my experience who possessed a comparable depth of ethical being was Nelson Mandela with whom I had a single and brief, yet memorable, encounter.
The title given to my remarks is something I admit imposing upon myself, and now at this moment of delivery strikes me now as far too ambitious. I chose such a theme because it does reflect the most enduring and empowering dimension of my association with Miguel, and seemed appropriate to reflect upon in the venerable academic venue of the Fordham School of Law.
My point of departure is this: if we believe, which many do not, that justice is the proper end of law, then we must struggle to overcome the calculative or transactional mentality that dominates our legal culture, restricting our attitudes and endeavors involving law to the domain of the feasible. I am fully aware that I am endorsing an unconventional outlook by elevating the moral imagination and what I would call ‘utopian realism.’ This kind of formulation disregards the conventional understanding of law as essentially offering a suite of techniques for problem-solving that presupposes a view of politics as ‘the art of the possible.’
It is this kind of ethical radicalism that made the life of Father Miguel so exemplary, and in the best sense, ‘revolutionary,’ for all those whose lives he affected whether in ministering to the poor or challenging the high and mighty, whether acting in a pastoral capacity or as a man of the world. It is important to appreciate that Miguel was both an ardent Nicaraguan nationalist and a passionate citizen of the world, what I call a ‘citizen pilgrim,’ embarked on a pilgrimage to a global future that embodies peace with justice.
Let me preface this inquiry into the spiritual sources of legal creativity with a general remark that pertains particularly to international law. I may be almost alone among law professors in believing that that international law is the field of law that is most relevant to the ultimate survival of the human species. The sad reality is that international law continues to struggle for survival as a field of study, being often denigrated, evaded, and violated by the most powerful governments on the planet whenever law is seen as blocking a preferred policy and there are always many apologists among the ranks of legal experts and diplomats ready to offer a comforting rationalization.
And yet viewed from a perspective other than war/peace and security, international law in relation to trade and investment has basically served to protect the interests of the rich and powerful, while shackling the poor and vulnerable. In other words, international law has this dual face: it bends to the geopolitical will of the militarily powerful while often cruelly imposing accountability on the weak. At the founding of the UN a Mexican diplomat caustically observed that ‘we have created an organization that regulates the mice while the tigers roam freely.’ And so it is.
It is against this background that Miguel d’Escoto’s spiritual wisdom creates a contrast with business as usual in the world of real politik. Even for most global reformers, the criterion for constructive action is a realistic appreciation of achievable limits, what I would identify as horizons of feasibility. We are living increasingly in a world in which there are growing gaps between what is feasible and what is necessary, what I identify as horizons of necessity. Adapting to climate change in the Age of Trump underscores this menacing gap between feasibility and necessity. As a diplomat Father Miguel was almost unconcerned with feasibility as conventionally understood if it stood in the way of necessity or desirability. He was deeply sensitive to the imperatives of necessity, and even more so to the moral and spiritual imperatives of doing what is right under a particular set of circumstances, and for this reason alone he was most responsive to what I identify here as horizons of spirituality.
He was motivated by a belief, undoubtedly reflecting his religious faith, in the potency of right reason, and on this basis conceived of international law as a crucial vehicle for realizing such a vision, embracing with moral enthusiasm a kind of ‘politics of impossibility’ in which considerations of justice outweighed calculations of feasibility or the obstacles associated with geopolitics. It is with an awareness of the trials and tribulation of Nicaragua and its long suffering population that Father Miguel turned to law as an imaginative means of empowerment.
Let me illustrate by reference to the historic case that Nicaragua brought against the United States in the early 1980s at the International Court of Justice in The Hague. It was a daring legal flight of moral fancy to suppose that tiny and beleaguered Nicaragua could shift its struggle from the bloody battlefields of U.S. armed intervention and a mercenary insurgency against the Sandinista Government of which he was then Foreign Minister to the lofty legal terrain that itself had been originally crafted to reflect the values and interests of dominant states, the geopolitical players on the global stage. But more than this it was a brilliant leap of political imagination to envision the soft power of law neutralizing the hard power of high tech weaponry in a high stakes ideological struggle being waged in the midst of the Cold War.
Such an attempt to shift the balance of forces in an ongoing conflict by recourse to international law and the World Court had never before been made in any serious way. It was a David and Goliath challenge that the World Court as the highest judicial institution in the UN System had yet to face in a war/peace context, and it turned out to be a test of the integrity of the institution.
Let me recall the situation in Nicaragua briefly. The United States was supporting a right-wing insurgency, the counterrevolutionary remnant of the Somoza dictatorship, a single family that had cruelly and corruptly ruled Nicaragua between 1936 and 1974 on behalf of corporate America (the era of ‘banana republics’), leaving the country in impoverished ruins when the Somoza dynasty finally collapsed. The Somoza-oriented insurgents were known as the Contras, and were called ‘freedom fighters’ by their American sponsors and paymaster because they were opposing the Sandinista Government that had won a war of national liberation in 1979, but was accused by its detractors of leftist tendencies and Soviet sympathies, which was the right-wing ideological way of obscuring the true affinity of the Sandinista leadership with the teachings of Liberation Theology rather than with the secular dogmatics of Marxism. It was a way of depriving the people of Nicaragua of their inalienable right of self-determination. The United States Government via the CIA was training and equipping the Contras, and quite overtly committing acts of war by mining and blockading Managua, Nicaragua’s main harbor and its lifeline to the world.
It was these interventionary undertakings that flouted the authority of international law and the UN Charter. Father Miguel’s addressed the UN General Assembly in his capacity as Nicaragua’s acting Foreign Minister, vividly describing the conflict with some well-chosen provocative words: “It is obvious that the war to which Nicaragua is being subjected is a U.S. war, and the so-called Contras are merely hired hands serving the diabolical objectives of the Reagan Administration.” Later in the same speech he condemned the U.S. Government for recently appropriating an additional $100 million “to finance genocide against our people.” [Address to UNGA, Nov. 3, 1986]
I quote this robust language partly to show that Father Miguel’s spiritual nature did not always mean a gentle demeanor or denote the absence of a fighting spirit. As here, when deemed appropriate to the situation, Miguel readily relied on undiplomatic candor to get his point across. He was also insistent on using such occasions to talk truth to power and to lay blame and responsibility for the torment of the Nicaraguan people where it belonged, however impolitic it was to do so.
Without going into the details of the case, it was possible for Nicaragua to lodge such a complaint against the United States because the U.S. Government had earlier agreed to accept the authority of the ICJ if the other side in an international conflict had been similarly committed. With this awareness, Father Miguel in his role as Foreign Minister (1979-90) realized two things: that the sovereign rights of Nicaragua were being overridden in a manner in flagrant violation of international law and that the World Court was supposed to provide countries with a nonviolent option of resolving international legal disputes, seen as an important contribution to maintaining world peace that the U.S. had itself strongly championed throughout most of the 20th century.
It may not seem so unusual for a small country to take advantage of a potential judicial remedy, but in fact it had never happened—no small state had ever gone to the World Court to protect itself against such military intervention, and to do so on behalf of a progressive government in the Third World in the midst of the Cold War seemed to many at the time like a waste of time and money that Nicaragua could ill afford.
It is here where one begins to grasp this potentially revolutionary idea of relying upon the spiritual sources of legal creativity. Father Miguel was convinced that what the United States Government was doing was legally and morally wrong, and that it was an opportune time for the mice to fight back against the predator tiger. It was an apt occasion to act by reference to horizons of spirituality.
Yet this did not mean that Miguel would ignore the pragmatic dimensions of effectiveness. Nicaragua managed to persuade Harvard law professor, Abram Chayes, to act on their behalf as head legal counsel. This was a brilliant tactical move that I applauded at the time (even though it meant that as Nicaragua’s second choice I lost out). Aside from being a first-class international lawyer with a high global profile, Chayes had previously served as John F. Kennedy’s Legal Advisor and close confidant at the time of the Cuban Missile Crisis. The symbolism could not have been more pointed, underlining the fact that Chayes was committed to upholding international law rather than being a combatant in the ideological sideshow carried on throughout the Cold War. Not surprisingly, the Wall Street Journal audaciously described Chayes as ‘a traitor’ for accepting such a role.
I had the opportunity to work with Chayes and Father Miguel in the American Irish Historical Society here in Manhattan that was operating under the benign tutelage of none other than Dr. Kevin Cahill. We worked hard for several days as a team developing the arguments both as to the authority of the ICJ to adjudicate, what we lawyers call ‘jurisdiction,’ to be decided in a separate preliminary decision, as well as on the substance of Nicaragua’s allegations, which constituted the second phase of the litigation. What was so impressive to me then, and even now, almost 40 years later, is that this effort to combine a somewhat utopian motivated legal undertaking with a practical mastery of the technical dimensions of the case illustrated for me the extraordinary blending of spiritually grounded, yet worldly wisdom with the down to earth skills of legal craft.
The outcome of the Nicaragua narrative is too complicated to describe properly, but in short—counsel for Nicaragua persuaded the Court that it had jurisdictional authority, at which point the United States petulantly, yet not unexpectedly, withdrew from the proceedings correctly realizing that if it could not prevail at this jurisdictional phase it had virtually no chance to have its legal arguments accepted at the merits phase of the case. Further, the U.S. Government was so displeased with the ICJ that it seized the occasion to renounce its earlier formal acceptance of what is technically referred to as ‘compulsory jurisdiction,’ which meant that no state could commence such an action against the USG in the future, and that the U.S. was itself permanently foreclosed from proceeding against a state against which it had legal grievances unless that state gave its consent.
This retreat from adjudicating international legal disputes has been an unintended and unfortunate lasting effect of the Nicaragua case. The American stance of viewing international law as only viable when it supports its geopolitical tactics has sent a damaging message to the world. It has definitely weakened the role and potential of the ICJ and of international judicial authority generally. In one sense, the US withdrawal was understandable for those who are driven to shape foreign policy by feasibility calculations rather than by certain abiding values such as, here, adhering to the rule of law. It hardly required a legal genius in the State Department to anticipate that if the Court upheld its legal authority to pronounce upon the controversy, then it would almost certainly rule in favor of Nicaragua on the substantive issues. Despite some technical issues involving the selection of the applicable legal authority, given the sweeping prohibitions of international law and the UN Charter against uses of force except in situations of self-defense against a prior armed attack, the pro-Nicaragua outcome was entirely predictable.
What was rather intriguing from a jurisprudential point of view was that despite its much hyped boycott of the proceedings and accompanying denunciation of the jurisdictional finding, the U.S. in the end quietly complied with the principal finding in The Hague, namely, that the naval blockade of Nicaragua’s harbors was unlawful. As would be expected, the USG never acknowledged that it was complying, nor did Nicaragua dance in the streets of Managua, but the cause/effect relationship between the judicial decision and compliant behavior was clear to any close observer.
There was then some reality to the expression ‘the force of law,’ and the USG, even during the Reagan presidency, did not want to stand before the world as openly defying the law, even international law. Such an assessment may have reflected the fact that the U.S. Government was in the midst of a struggle to win the legitimacy war being waged against the Soviet Union, which partly hinged on the relative reputation of these two dueling superpowers in relation to respect for international law and human rights, signature issues of ‘the free world.’
For me this Nicaragua experience was a compelling example of Father Miguel’s achievements that followed directly from his deep commitment to the horizons of spirituality and decency. It was far from the only instance. Let me mention two others very quickly. One of my other connections with Father Miguel was to serve as one of his Special Advisors during his year as President of the UN General Assembly thoughout its 63rd session, 2008-09. As continues to be the case, life could become difficult for any leading UN official who openly opposed Israel. Father Miguel was deeply aware of the Palestinian ordeal and unabashedly supportive of my contested role as Special Rapporteur for Occupied Palestine on behalf of the Human Rights Council in Geneva. When I was detained in an Israeli prison and then expelled from Israel at the end of 2008, Father Miguel wanted to organize a press conference in NYC to give me an opportunity to explain what had happened and defend my position. I declined his initiative, perhaps unadvisedly, as I didn’t want to place Miguel in the line of fire sure to follow.
At the end of 2008 Israel launched a massive attack against Gaza, known as Cast Lead, and Father Miguel sought to have the General Assembly condemn the attack and call for an immediate ceasefire and Israeli withdrawal. It was a difficult moment for Father Miguel, feeling certain that this was the legally and morally the right thing to do. Yet as events proceeded and diplomatic positions were disclosed, Miguel was forced to recognize that the logic of geopolitics worked differently, in fact so starkly differently that even the diplomat representing the Palestinian Authority at the UN intervened to support a milder reaction than what Miguel deemed appropriate. Unlike his Nicaraguan experience, here the backers of feasibility prevailed, but in a manner that Father Miguel could never reconcile himself to accept.
I met many diplomats at UN Headquarters here in NY who said that no one had ever occupied a high position at the UN with Father Miguel’s manifest quality as someone so passionately dedicated to righteous principle. Pondering this, it occurred to me that one possible exception was Dag Hammarskjöld, an early outstanding UN Secretary General, who died in a plane crash, apparently assassinated in 1961 for his principled, yet geopolitically inconvenient, dedication to peace and justice. From his private writings we know that Hammarskjöld’s UN efforts also sprung from wellsprings of spirituality.
Most GA presidents take the post as an honorific feather in their cap, the symbolic culmination of a public sector career, and spend the year presiding over numerous tedious meetings and hosting an endless series of afternoon receptions, but never make any effort to influence, much less enhance, the role of the General Assembly or otherwise strengthen the UN as an institution of potential global governance. Miguel, in contrast worked tirelessly to make the UN more effective, more respectful of law, more democratic, and above all, more sensitive to claims reflective of global justice.
Miguel took full advantage of his term as president of the General Assembly to provide venues within the Organization that offered humane alternatives to neoliberal economic globalization. He sponsored and organized meetings at the UN designed to overcome current patterns of economic and ecological injustice, making use of the presence in New York City of such non-mainstream economists as Jeffrey Sachs and Joseph Stiglitz, and the prominent Canadian activist author, Maude Barlow. Here again Father Miguel demonstrated his grounded spirituality by once more combining the visionary with the practical.
I had the opportunity to work with Father Miguel on several proposals to raise the profile and role of the General Assembly as the most representative and democratic organ of the UN. This initiative was rather strategic and partly meant to counter the US-led campaign to concentrate UN authority in Security Council so that Third World aspirations and demands could be effectively thwarted, and the primacy of geopolitics reestablished after the assault mounted in the 1970s by the then ascendant Nonaligned Movement.
What I have tried to describe is this deep bond in the life and work of Father Miguel between the spirituality of his character and motivations and the practicality of his involvement in what the German philosopher, Habermas, calls ‘the lifeworld.’ I find it indicative of Father Miguel’s deep spiritual identity that he suffered a punitive response to his life’s work from the institution he loved and dedicated his life to serving, being suspended in 1985 by Pope John Paul II from the priesthood because of his involvement in the Nicaraguan Revolution. Miguel was reinstated 29 years later by Pope Francis, who many view as a kindred spirit to Miguel.
There is an object lesson here for all of us: in a political crisis the moral imperative of service to people and ideals deserves precedence over blind obedience to even a cherished and hallowed institution. This would undoubtedly almost always pose a difficult and painful choice, but it was one that defined Father Miguel d’Escoto at the core of his being, which he expressed over and over by doing the right thing in a spirit of love and humility, but also in a manner that left no one doubting his firmness, his affinities and commitments, as well as his unwavering and abiding convictions.
As I suggested at the outset, the daring and creativity that Father Miguel brought to the law and to his work at the UN sprung from spiritual roots that were deeply grounded in both religious tradition and in an unshakable solidarity with those among us who are poor, vulnerable, oppressed, and victimized. For Miguel spirituality did not primarily equate with peace, but rather with justice and an accompanying uncompromising and lifelong struggle on behalf of what was right and righteous in every social context, whether personal or global.
There is no assurance that this way of believing and acting will control every development in the world or even control the ultimate destiny of the human species. Humanity retains the freedom to fail, which could mean extinction in the foreseeable future.The happy ending of the Nicaragua case needs to be balanced against the prolonged and tragic ordeal of the Palestinian people for which there is still no end in sight. Beyond wins and losses, what I think should be clear is that unless many more of us become attentive to the horizons of spirituality and necessity the outlook for the human future is presently bleak. Father Miguel d’Escoto’s disavowal of the domain of the feasible is assuredly not the only way to serve humanity, but it is a most inspiring way, and points us all in a direction that is underrepresented in the operations of governments and other public institutions, not to mention during the speculative frenzies on Wall Street and the backrooms of hedge fund offices.
In my language, Father Miguel d’Escoto was one of the great citizen pilgrims of our time. His life was a continuous journey toward what St. Paul called ‘a better city, a heavenly city’ to manage and shape the totality of life on Planet Earth.
Tags: International Court of Justice, international law, Miguel d'Escoto, Nicaragua, Religion & Politics, Spirituality, UN Reform