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III. The International Court of Justice
2.5. Jurisdiction on the Basis of Treaties
2.5.1. General Questions

¤ Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14

[p. 136] It should however be emphasized that the Court does not consider that a compromissory clause of the kind included in Article XXIV, paragraph 2, of the 1956 FCN Treaty, providing for jurisdiction over disputes as to its interpretation or application, would enable the Court to entertain a claim alleging conduct depriving the treaty of its object and purpose. It is only because in the present case the Court has found that it has jurisdiction, apart from Article XXIV, over any legal dispute between the Parties concerning any of the matters enumerated in Article 36, paragraph 2, of the Statute, that it can proceed to examine Nicaragua's claim under this head.

[p. 142] Under the 1956 FCN Treaty, the Court has jurisdiction to determine "any dispute between the Parties as to the interpretation or application of the present Treaty" (Art. XXIV, para. 2); and as the Permanent Court of International Justice stated in the case concerning the Factory at Chorzów,
"Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application." (Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No.9, p. 21.)

[p. 539 D.O. Jennings] First, it should be noted that the 1956 Treaty creates, by Article XXIV, a title of jurisdiction under Article 36, paragraph 1, of the Court's Statute, being a treaty "in force" at the material time. It is a title of jurisdiction which is different from, and independent of, the question of jurisdiction under the United States Declaration made under Article 36, paragraph 2, of the Statute. It is, therefore, a title of jurisdiction which is not touched by the multilateral treaties reservation, which applies only to the Declaration made under Article 36, paragraph 2 and there is, accordingly, nothing to prevent the Court, when it is dealing with matters covered by the jurisdiction clause of the FCN Treaty, from considering and applying, for example, Articles 2, paragraph 4, and 51 of the United Nations Charter or any other relevant multilateral treaties. Indeed, the first part of Article XXI (d) of the FCN Treaty, to be considered below, clearly contemplates certain kinds of "obligations of a Party" arising from the United Nations Charter as being relevant to the interpretation and application of the treaty.
This does not mean that the principal dispute, the subject of the Nicaraguan Application, could be dealt with under the FCN Treaty jurisdiction clause; except indeed in so far as it may involve a dispute which directly concerns the "interpretation or application" of the provisions of the treaty. I am unable to accept the Nicaraguan argument, by which the treaty jurisdiction is supposed to comprise matters which could be said in general terms to be inconsistent with the "object and purpose" of an FCN treaty, but are not referred to specific articles of the treaty. The jurisdiction clause of such a treaty could not be regarded as conferring a jurisdiction to pass upon matters external to the actual provisions of the treaty, even though such matters may affect the operation of the treaty. Suppose hostilities, or even war, should arise between parties to an FCN treaty, then the Court under a jurisdiction clause surely does not have jurisdiction to pass upon the general question of the lawfulness or otherwise of the outbreak of hostilities or of war, on the ground only that this defeated the object and purpose of the treaty; though of course it might have jurisdiction for instance to decide whether there was a "war" or hostilities, for the purposes of interpreting and applying a war clause which was a term of the treaty. If it were otherwise, there would be no apparent limit to the kinds of dispute which might in certain circumstances be claimed to come under such a jurisdiction clause. The conferment of such a potentially roving jurisdiction could not have been within the intention of the parties when they agreed the jurisdiction clause; and if the Court had asserted such a jurisdiction, this would only have discouraged future mention of the Court in such FCN treaty jurisdiction clauses.