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World Court Digest

I. Substantive International Law - First Part
8.1. 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] In the view of the Court, an act cannot be said to be one calculated to deprive a treaty of its object and purpose, or to impede its due performance, if the possibility of that act has been foreseen in the treaty itself, and it has been expressly agreed that the treaty "shall not preclude" the act, so that it will not constitute a breach of the express terms of the treaty. Accordingly, the Court cannot entertain either the claim of Nicaragua alleging conduct depriving the treaty of its object and purpose, or its claims of breach of specific articles of the treaty, unless it is first satisfied that the conduct complained of is not "measures ... necessary to protect" the essential security interests of the United States.

[p. 250 D.O. Oda] Thus the Court appears to have misinterpreted the words "the object and purpose" of a treaty, as introduced by the 1969 Convention on the Law of Treaties in a completely different context. Independently of that Convention, it is noted that the Court attributes to Nicaragua an argument to the effect that abstention from conduct likely to defeat the object and purpose of a treaty is an obligation implicit in the principle pacta sunt servanda. However, the Judgment does not make it clear whether it is espousing this point of view. In any case, I would like to take this opportunity of indicating my own understanding of this principle, which to my mind requires compliance with the letter of obligations subscribed to, and not necessarily the avoidance of conduct not expressly precluded by the terms of the given treaty. It may furthermore be asked where the jurisdiction granted by a treaty clause would ever end if it were held to entitle the Court to scrutinize any act remotely describable as inimical to the object and purpose of the treaty in question. The ultimate result of so sweeping an assumption could only be an increasing reluctance on the part of States to support the inclusion of such clauses in their treaties.