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[p89]
The Court,
composed as above,
after deliberation,
having regard to Articles 41 and 48 of the Statute of the Court,
having regard to Article 61 of the Rules of Court,
In the proceedings instituted before the Court by the Application dated May
26th, 1951, by the Government of the United Kingdom of Great Britain and
Northern Ireland, against the Iranian Empire in the case of the
Anglo-Iranian Oil Company, Limited,
Makes the following Order:
Having regard to the Request dated June 22nd, 1951, submitted to the Court
and filed in the Registry on that day whereby the United Kingdom
Government—invoking Article 41 of the Statute and Article 61 of the Rules,
and referring to the Application of May 26th, in which the United Kingdom
Government had reserved [p 90] the right to request the Court to indicate
such interim measures— requested the Court to indicate that pending the
final Judgment of the Court in the Anglo-Iranian Oil Company case:
(a) The Imperial Government of Iran should permit the Anglo-Iranian Oil
Company, Limited, its servants and agents, to search for and extract
petroleum and to transport, refine or treat in any other manner and render
suitable for commerce and to sell or export the petroleum obtained by it,
and generally, to continue to carry on the operations which it was carrying
on prior to the 1st May, 1951, free from interference calculated to impede
or endanger the operations of the Company, by the Imperial Government of
Iran, their servants or agents, or any Board, Commission, Committee, or
other body nominated by them.
(b) The Imperial Government of Iran should not by any executive or
legislative act or judicial process hinder or prevent or attempt to hinder
or prevent the Anglo-Iranian Oil Company, Limited, its servants or agents,
in or from continuing to carry on its operations as aforesaid.
(c) The Imperial Government of Iran should not by any executive or
legislative act or judicial process sequester or seize or attempt to
sequester or seize or otherwise interfere with any property of the
Anglo-Iranian Oil Company, Limited, including (but without prejudice to a
decision on the merits of the case) any property which the Imperial
Government of Iran have already purported to nationalize or otherwise to
expropriate.
(d) The Imperial Government of Iran should not by any executive or
legislative act or judicial process sequester or seize or attempt to
sequester or seize any monies earned by the Anglo-Iranian Oil Company,
Limited, or otherwise in the possession or power of the Anglo-Iranian Oil
Company, Limited, including (but without prejudice to a decision on the
merits of the case) any monies which the Imperial Government of Iran have
purported to nationalize or otherwise to expropriate or any monies earned by
means of property which they have purported so to nationalize, or otherwise
to expropriate.
(e) The Imperial Government of Iran should not by any executive or
legislative act or judicial process require or attempt to require the
Anglo-Iranian Oil Company, Limited, to dispose of the monies referred to in
sub-paragraph (d) above otherwise than in accordance with the terms of the
Convention of 1933 or of any measure to be indicated by the Court.
(f) The Imperial Government of Iran should ensure that no other steps of any
kind are taken capable of prejudicing the right of the Government of the
United Kingdom to have a decision of the Court in its favour on the merits
of the case executed, should the Court render such a decision.
(g) The Imperial Government of Iran and the Government of the United Kingdom
should ensure that no step of any kind is taken [p 91] capable of
aggravating or extending the dispute submitted to the Court, and in
particular, the Imperial Government of Iran should abstain from all
propaganda calculated to inflame opinion in Iran against the Anglo-Iranian
Oil Company, Limited, and the United Kingdom.
Whereas, on the day on which the Request for the indication of interim
measures was filed, it was transmitted to the Iranian Government and the
submissions made therein were communicated by telegraph to the said
Government;
Whereas the Registry, referring to Article 41, paragraph 2, of the Statute,
notified the Secretary-General of the United Nations of the said Request,
and, in accordance with Article 40, paragraph 3, of the Statute communicated
it to the Members of the United Nations through the Secretary-General, and
to the other States entitled to appear before the Court;
Having regard to the message transmitted by telegraph by the President of
the Court on June 23rd to the Prime Minister and to the Minister for Foreign
Affairs in Iran, which was in the following terms:
“Court being due to meet to consider Request for indication interim measures
of protection filed June 22nd by United Kingdom Agent, it is my duty, in
accordance with Article 61 of the Rules, to take such measures as appear
necessary to me to enable the Court to give an effective decision. For this
purpose I have honour suggest to Your Excellencies that Imperial Government
issue appropriate instructions to avoid all measures which might render
impossible or difficult the execution of any judgment which the Court might
subsequently give and to ensure that no action is taken which might
aggravate the dispute submitted to Court. Any measures taken by Imperial
Iranian Government for this purpose would in no way prejudice such
representations as that Government may deem it appropriate to make to Court
either in proceedings on Request for interim measures in which both Parties
will have right to be heard at hearing on June 30th or subsequently in
proceedings on Application filed May 26th by the United Kingdom."
Having regard to the reply to this message, transmitted by telegraph on June
29th to the Iranian Legation at The Hague, and, on the same day, delivered
to the President of the Court by the Iranian Minister at The Hague, filed
and communicated to the Agent for the United Kingdom Government;
Having regard to the final text of the said reply, consisting of a message
signed "B. Kazemi, Minister for Foreign Affairs of Iran", followed by a
statement together with three annexes delivered to the President of the
Court on June 30th by the Iranian Minister at The Hague, which was also
communicated to the Agent for the United Kingdom Government;[p 92]
Whereas the said reply stated:
"In view of the foregoing considerations the Iranian Government hopes that
the Court will declare that the case is not within its jurisdiction because
of the legal incompetence of the complainant and because of the fact that
exercise of the right of sovereignty is not subject to complaint. Under
these circumstances the request for interim measures of protection would
naturally be rejected."
Whereas on June 23rd, the day following the filing of the Request for the
indication of interim measures of protection, the United Kingdom Government,
through its duly authorized Agent, and the Iranian Government, through its
Minister for Foreign Affairs, were informed that the Court would hold a
hearing on June 30th, for the purpose of giving the Parties an opportunity
of presenting their observations on the subject of the Request;
Whereas, upon the opening of the hearing fixed for this purpose, the
President of the Court took note of the presence in Court of Sir Eric
Beckett, K.C.M.G., K.C., Legal Adviser to the Foreign Office, and of the
Right Honourable Sir Frank Soskice, K.C., M.P., Attorney-General; Professor
H. Lauterpacht, K.C., Professor of International Law at Cambridge
University; Mr. A. K. Rothnie, Eastern Department, Foreign Office; and
Messrs. H. A. P. Fisher and D. H. N. Johnson, Counsel;
Whereas the Iranian Government was not represented at this hearing;
Having heard Sir Frank Soskice on behalf of the United Kingdom Government,
on the Request for the indication of interim measures of protection;
Whereas the submissions in the request of the United Kingdom Government,
quoted above, were maintained in the course of the hearing;
Whereas in its message of June 29th, 1951, the Iranian Government stated
that it rejected the' Request for the indication of interim measures of
protection presented by the United Kingdom Government on the grounds
principally, of the want of competence on the part of the United Kingdom
Government to refer to the Court a dispute which had arisen between the
Iranian Government and the Anglo-Iranian Oil Company, Limited, and of the
fact that this dispute pertaining to the exercise of the sovereign rights of
Iran was exclusively within the national jurisdiction of that State and thus
not subject to the methods of settlement specified in the Charter;
Whereas it appears from the Application by which the Government of the
United Kingdom instituted proceedings, that that Government has adopted the
cause of a British company and is proceeding in virtue of the right of
diplomatic protection;
Whereas the complaint made in the Application is one of an alleged violation
of international law by the breach of the agree-[p 93]ment for a concession
of April 29th, 1933, and by a denial of justice which, according to the
Government of the United Kingdom, would follow from the refusal of the
Iranian Government to accept arbitration in accordance with that agreement,
and whereas it cannot be accepted a priori that a claim based on such a
complaint falls completely outside the scope of international jurisdiction;
Whereas the considerations stated in the preceding paragraph suffice to
empower the Court to entertain the Request for interim measures of
protection;
Whereas the indication of such measures in no way prejudges the question of
the jurisdiction of the Court to deal with the merits of the case and leaves
unaffected the right of the Respondent to submit arguments against such
jurisdiction;
Whereas the object of interim measures of protection provided for in the
Statute is to preserve the respective rights of the Parties pending the
decision of the Court, and whereas from the general terms of Article 41 of
the Statute and from the power recognized by Article 61, paragraph 6, of the
Rules of Court, to indicate interim measures of protection proprio motu, it
follows that the Court must be concerned to preserve by such measures the
rights which may be subsequently adjudged by the Court to belong either to
the Applicant or to the Respondent;
Whereas the existing state of affairs justifies the indication of interim
measures of protection;
For these reasons,
The Court
Indicates, pending its final decision in the proceedings instituted on May
26th, 1951, by the Government of the United Kingdom of Great Britain and
Northern Ireland against the Imperial Government of Iran, the following
provisional measures which will apply on the basis of reciprocal observance:
1. That the Iranian Government and the United Kingdom Government should each
ensure that no action is taken which might prejudice the rights of the other
Party in respect of the carrying out of any decision on the merits which the
Court may subsequently render;
2. That the Iranian Government and the United Kingdom Government should each
ensure that no action of any kind is taken which might aggravate or extend
the dispute submitted to the Court;
3. That the Iranian Government and the United Kingdom Government should each
ensure that no measure of any kind should be taken designed to hinder the
carrying on of the industrial [p 94] and commercial operations of the
Anglo-Iranian Oil Company, Limited, as they were carried on prior to May
1st, 1951;
4. That the Company's operations in Iran should continue under the direction
of its management as it was constituted prior to May 1st, 1951, subject to
such modifications as may be brought about by agreement with the Board of
Supervision referred to in paragraph 5;
5. That, in order to ensure the full effect of the preceding provisions,
which in any case retain their own authority, there should be established by
agreement between the Iranian Government and the United Kingdom Government a
Board to be known as the Board of Supervision composed of two Members
appointed by each of the said Governments and a fifth Member, who should be
a national of a third State and should be chosen by agreement between these
Governments, or, in default of such agreement, and upon the joint request of
the Parties, by the President of the Court.
The Board will have the duty of ensuring that the Company's operations are
carried on in accordance with the provisions above set forth. It will, inter
alia, have the duty of auditing the revenue and expenses and of ensuring
that all revenue in excess of the sums required to be paid in the course of
the normal carrying on of the operations and the other normal expenses
incurred by the Anglo-Iranian Oil Company, Limited, are paid into accounts
at banks to be selected by the Board on the undertaking of such banks not to
dispose of such funds except in accordance with the decisions of the Court
or the agreement of the Parties.
Done in English and French, the English text being authoritative, at the
Peace Palace, The Hague, this fifth day of July, one thousand nine hundred
and fifty-one, in four copies, one of which will be placed in the archives
of the Court, and the others transmitted to the Imperial Government of Iran,
to the Government of the United Kingdom of Great Britain and Northern
Ireland, and to the Secretary-General of the United Nations for transmission
to the Security Council.
(Signed) Basdevant,
President.
(Signed) E. Hambro,
Registrar.
[p 95]
Judges Winiarski and Badawi Pasha, declaring that they are unable to concur
in the Order of the Court, have appended to the Order the joint statement of
their dissenting opinion.
(Initialled) J. B.
(Initialled) E. H.
[p 96]
DISSENTING OPINION OF JUDGES WINIARSKI AND BADAWI PASHA
[ Translation]
However justified the interim measures of protection formulated in this
Order may appear, we are of opinion that the Court should not have indicated
them, on grounds of principle which it is our duty to indicate briefly.
The question of interim measures of protection is linked, for the Court,
with the question of jurisdiction; the Court has power to indicate such
measures only if it holds, should it be only provisionally, that it is
competent to hear the case on its merits. Article 41 of the Statute empowers
the Court to indicate interim measures of protection "if it considers that
circumstances so require". The provisions of this Article presuppose the
competence of the Court; this Article is to be found in the Chapter of the
Statute headed "Procedure", it refers to "the parties": there must therefore
be proceedings within the meaning of the Statute and there must be parties.
Clearly, it could not be claimed that, in the event of a challenge of its
jurisdiction, the Court should finally pronounce on this question before
indicating interim measures of protection; in such a case as this the
request might well become pointless; but the Court must consider its
competence reasonably probable.
Article 41 naturally raises a different question for the consideration of
the Court, the question whether the circumstances require provisional
measures to be taken, and, from this point of view, the power of the
International Court of Justice is not in substance different from that of a
national tribunal. President Anzilotti, in a dissenting opinion (in the
Polish Agrarian Reform case, in 1933) went so far as to say that if the
summaria cognitio, which was characteristic of a procedure of that kind,
enabled the Court to take into account the possibility of the right claimed
and the possibility of the danger to which that right was exposed, a
request for interim measures of protection should be granted. But as interim
measures of protection are exceptional in character and in derogation of
general rights, the tribunal ought to examine the situation as a whole;
thus, for instance, in the countries where there is power to grant a
temporary injunction, in cases where the measures asked for would involve
particular hardship on the respondent, a judge will only grant it if the
right of the applicant appears to him to be clear; thus, too, if it seems to
him to be very probable that the applicant will fail in the proceedings, he
will refuse to grant the relief asked for. The question of the jurisdiction
of the national tribunal does not in practice arise; the application is made
to the [p 97] competent tribunal; if the tribunal has no jurisdiction it
will not order interim measures. But, in municipal law, there is always some
tribunal which has jurisdiction.
In international law it is the consent of the parties which confers
jurisdiction on the Court; the Court has jurisdiction only in so far as that
jurisdiction has been accepted by the parties. The power given to the Court
by Article 41 is not unconditional; it is given for the purposes of the
proceedings and is limited to those proceedings. If there is no
jurisdiction as to the merits, there can be no jurisdiction to indicate
interim measures of protection. Measures of this kind in international law
are exceptional in character to an even greater extent than they are in
municipal law; they may easily be considered a scarcely tolerable
interference in the affairs of a sovereign State. For this reason, too, the
Court ought not to indicate interim measures of protection unless its
competence, in the event of this being challenged, appears to the Court to
be nevertheless reasonably probable. Its opinion on this point should be
reached after a summary consideration; it can only be provisional and cannot
prejudge its final decision, after the detailed consideration to which the
Court will proceed in the course of adjudicating on the question in
conformity with all the Rules laid down for its procedure.
We find it difficult to accept the view that if prima facie the total lack
of jurisdiction of the Court is not patent, that is, if there is a
possibility, however remote, that the Court may be competent, then it may
indicate interim measures of protection. This approach, which also involves
an element of judgment, and which does not reserve to any greater extent the
right of the Court to give a final decision as to its jurisdiction, appears
however to be based on a presumption in favour of the competence of the
Court which is not in consonance with the principles of international law.
In order to accord with these principles, the position should be reversed:
if there exist weighty arguments in favour of the challenged jurisdiction,
the Court may indicate interim measures of protection; if there exist
serious doubts or weighty arguments against this jurisdiction such measures
cannot be indicated.
In order to minimize the seriousness of this question, there have been
invoked before the Court examples taken from the practice of the Mixed
Arbitral Tribunals. But these tribunals, as joint organs of two States,
differ both as to their character and as to their procedure from an
international tribunal, and, therefore, from the International Court of
Justice, and there is, consequently, nothing to be learned from their
precedents.
There were also invoked precedents of the Permanent Court of International
Justice; these precedents, however, in no way support the argument put
forward. Interim measures of protection were requested in six cases; the
requests were granted in only two. In the Belgian-Chinese case (in 1927),
the President first refused, then [p 98] granted, and, finally, revoked the
interim measures of protection. In his Order, the President was careful to
say: "Provisionally, pending the final decision of the Court .... either on
the question of its jurisdiction or on the merits." In revoking these
measures the President pointed out what were the circumstances: "the
time-limit allowed for the filing of the Counter-Case has not expired, the
Respondent has not had an opportunity of indicating whether he accepts the
Court's jurisdiction in the case". In the case concerning the Electricity
Company of Sofia and Bulgaria (in 1939), Bulgaria objected to the
jurisdiction of the Court. The objection was considered by the Court and
allowed in part; as to the remainder, the Court held itself competent. It
was only after this finding that the Court indicated interim measures of
protection, and then in very general terms.
There are certainly cases in which the objection to the jurisdiction is
regarded as a mere ground of defence, and in which the party overruled in
its objection continues to take part in the proceedings. But in this case
the facts are quite different. Iran affirms that it has not accepted the
jurisdiction of the Court in the present matter and that it is in no way
bound in law; it has refused to appear before the Court and has put forward
reasons for its attitude. The Court ought therefore to decide, in a summary
way and provisionally, for the purpose of arriving at the decision which it
must take on the question of interim measures of protection, which is the
more probable of the two conclusions which it may finally come to on the
question of its jurisdiction.
In this connection, a consideration, entirely summary in character, of the
various grounds upon which the Government of the United Kingdom alleges that
the Court has jurisdiction, leads us to the provisional conclusion that if
Iran does not accept the jurisdiction of the Court in pursuance of the
suggestion made by the United Kingdom in paragraph 20 of the Application
("Alternatively, whether or not the Court has the right to exercize
jurisdiction in this case .... the Government of the United Kingdom expects
that Iran .... will agree to appear before the Court voluntarily"), the
Court will at the time of its final decision be compelled to hold itself
without jurisdiction in this case and that, in these circumstances, interim
measures of protection should not have been indicated.
(Signed) B. Winiarski.
(Signed) Badawi Pasha. |
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