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[p.803]
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 2 November 1992, the Government of the Islamic Republic of Iran
(hereinafter called "Iran") filed in the Registry of the Court an
Application instituting proceedings against the Government of the United
States of America (hereinafter called "the United States") in respect of a
dispute
"arising out of the attack [on] and destruction of three offshore oil
production complexes, owned and operated for commercial purposes by the
National Iranian Oil Company, by several warships of the United States Navy
on 19 October 1987 and 18 April 1988, respectively".
In its Application, Iran contended that these acts constituted a
"fundamental breach" of various provisions of the Treaty of Amity, Economic
Relations and Consular Rights between the United States of America and Iran,
which was signed in Tehran on 15 August 1955 and entered into force on 16
June 1957 (hereinafter called "the Treaty of 1955"), as well as of
international law. The Application invokes, as a basis for the Court's
jurisdiction, Article XXI, paragraph 2, of the Treaty of 1955.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
immediately communicated to the Government of the United States by the
Registrar; and, pursuant to paragraph 3 of that Article, all States entitled
to appear before the Court were notified of the Application.[p 806]
3. By an Order dated 4 December 1992, the President of the Court fixed 31
May 1993 as the time-limit for the filing of the Memorial of Iran and 30
November 1993 as the time-limit for the filing of the Counter-Memorial of
the United States.
4. By an Order of 3 June 1993, the President of the Court, at the request of
Iran, extended to 8 June 1993 the time-limit for the filing of the Memorial;
the time-limit for the filing of the Counter-Memorial was extended, by the
same Order, to 16 December 1993. Iran duly filed its Memorial within the
time-limit thus extended.
5. Within the extended time-limit fixed for the filing of the
Counter-Memorial, the United States raised a preliminary objection to the
jurisdiction of the Court pursuant to Article 79, paragraph 1, of the Rules
of Court. Consequently, by an Order dated 18 January 1994, the President of
the Court, noting that by virtue of Article 79, paragraph 3, of the Rules of
Court the proceedings on the merits were suspended, fixed 1 July 1994 as the
time-limit within which Iran might present a written statement of its
observations and submissions on the preliminary objection raised by the
United States. Iran filed such a statement within the time-limit so fixed,
and the case became ready for hearing in respect of the preliminary
objection.
6. Since the Court included upon the Bench no judge of Iranian nationality,
Iran availed itself of its right under Article 31, paragraph 2, of the
Statute of the Court to choose a judge ad hoc to sit in the case: it chose
Mr. Francois Rigaux.
7. Pursuant to Article 53, paragraph 2, of the Rules of Court, the pleadings
and annexed documents filed in the case were made accessible to the public
by the Court as from the date of opening of the oral proceedings on the
preliminary objection.
8. Public hearings were held between 16 and 24 September 1996, at which the
Court heard the oral arguments and replies of:
For the United States: Mr. Michael J. Matheson,
Commander Ronald D. Neubauer,
Mr. Andreas F. Lowenfeld,
Mr. John R. Crook,
Mr. Sean Murphy,
Mr. Jack Chorowsky.
For Iran: Mr. M. H. Zahedin-Labbaf,
Dr. S. M. Zeinoddin,
Mr. Rodman R. Bundy,
Mr. Luigi Condorelli,
Mr. James R. Crawford.
At the hearings, judges put questions to the Parties who answered in writing
after the close of the oral proceedings. Referring to the provisions of
Article 72 of the Rules of Court, Iran communicated to the Court its
observations on the replies given by the United States to one of those
questions.
*
9. In the Application, the following requests were made by Iran:
"On the basis of the foregoing, and while reserving the right to supplement
and amend these submissions as appropriate in the course of further [p 807]
proceedings in the case, the Islamic Republic respectfully requests the
Court to adjudge and declare as follows:
(a) that the Court has jurisdiction under the Treaty of Amity to entertain
the dispute and to rule upon the claims submitted by the Islamic Republic;
(b) that in attacking and destroying the oil platforms referred to in the
Application on 19 October 1987 and 18 April 1988, the United States breached
its obligations to the Islamic Republic, inter alia, under Articles I and X
(1) of the Treaty of Amity and international law;
(c) that in adopting a patently hostile and threatening attitude towards the
Islamic Republic that culminated in the attack and destruction of the
Iranian oil platforms, the United States breached the object and purpose of
the Treaty of Amity, including Articles I and X (1), and international law;
(d) that the United States is under an obligation to make reparations to the
Islamic Republic for the violation of its international legal obligations in
an amount to be determined by the Court at a subsequent stage of the
proceedings. The Islamic Republic reserves the right to introduce and
present to the Court in due course a precise evaluation of the reparations
owed by the United States; and
(e) any other remedy the Court may deem appropriate."
10. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Government of Iran,
in the Memorial:
"In the light of the facts and arguments set out above, the Government of
the Islamic Republic of Iran requests the Court to adjudge and declare:
1.That the Court has jurisdiction under the Treaty of Amity to entertain the
dispute and to rule upon the claims submitted by Iran;
2.That in attacking and destroying the oil platforms referred to in Iran's
Application on 19 October 1987 and 18 April 1988, the United States breached
its obligations to Iran, inter alia, under Articles I, IV (1) and Article X
(1) of the Treaty of Amity and international law, and that the United States
bears responsibility for the attacks; and
3.That the United States is accordingly under an obligation to make full
reparation to Iran for the violation of its international legal obligations
and the injury thus caused in a form and amount to be determined by the
Court at a subsequent stage of the proceedings. Iran reserves the right to
introduce and present to the Court in due course a precise evaluation of the
reparation owed by the United States; and
4.Any other remedy the Court may deem appropriate."
On behalf of the Government of the United States,
in the Preliminary Objection:
"The United States of America requests that the Court uphold the [p 808]
objection of the United States to the jurisdiction of the Court and decline
to entertain the case."
On behalf of the Government of Iran,
in the Written Statement of its Observations and Submissions on the
Preliminary Objection:
"In the light of the facts and arguments set out above, the Government of
the Islamic Republic of Iran requests the Court to adjudge and declare:
1.That the Preliminary Objection of the United States is rejected in its
entirety;
2.That, consequently, the Court
[11] has jurisdiction under Article XXI (2) of the Treaty of Amity to
entertain the claims submitted by the Islamic Republic of Iran in its
Application and Memorial as they relate to a dispute between the Parties as
to the interpretation or application of the Treaty;
3.That, on a subsidiary basis in the event the Preliminary Objection is not
rejected outright, it does not possess, in the circumstances of the case, an
exclusively preliminary character within the meaning of Article 79 (7) of
the Rules of Court; and
4.Any other remedy the Court may deem appropriate."
11. In the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Government of the United States,
at the hearing of 23 September 1996:
"The United States of America requests that the Court uphold the objection
of the United States to the jurisdiction of the Court in the case concerning
Oil Platforms (Islamic Republic of Iran v. United States of America)."
On behalf of the Government of Iran,
at the hearing of 24 September 1996:
The submissions read at the hearing were identical to those presented by
Iran in the Written Statement of its Observations and Submissions on the
Preliminary Objection.
***
12. In its Application instituting proceedings, Iran states that, on 19
October 1987 and 18 April 1988, certain oil platforms located on the Iranian
continental shelf and belonging to the National Iranian Oil Company were
attacked and destroyed by naval forces of the United States. Iran maintains
that, by proceeding in this manner, the United States "breached its
obligations to the Islamic Republic, inter alia, under Articles I and X (1)
of the Treaty of Amity". Iran further claims that those actions of the
United States "breached the object and purpose of the Treaty . . ., and
international law". Iran concludes by saying that it falls to the Court, in
accordance with Article XXI, paragraph 2, of the Treaty [p 809] of 1955, to
settle the dispute that has thus come into being between the two States.
13. In the course of subsequent proceedings, Iran developed those arguments
more specifically, maintaining, in its Memorial, that the United States had
also breached the provisions of Article IV, paragraph 1, of the Treaty of
1955. During the hearings, it stated that "its claim is strictly based on
three very specific provisions of the 1955 Treaty of Amity and that the
Court can settle the dispute which is submitted to it on the basis of that
Treaty alone". It further stated that Iran's Application was based on those
three provisions and "not on the violation of the object and purpose of the
Treaty as a whole". As for general international law, this is not invoked by
Iran as such, but rather "in order to identify the content and scope of the
obligations arising from the Treaty". Accordingly, in the most recent
presentation of its arguments, Iran claims only that Article I, Article IV,
paragraph 1, and Article X, paragraph 1, of the Treaty of 1955 have been
infringed by the United States. The dispute thus brought into being is said
to fall within the jurisdiction of the Court pursuant to Article XXI,
paragraph 2, of the same Treaty.
14. The United States for its part maintains that the Application of Iran
bears no relation to the Treaty of 1955. It stresses that, as a consequence,
the dispute that has arisen between itself and Iran does not fall within the
provisions of Article XXI, paragraph 2, of the Treaty and deduces from this
that the Court must find that it lacks jurisdiction to deal with it.
***
15. The Court points out, to begin with, that the Parties do not contest
that the Treaty of 1955 was in force at the date of the filing of the
Application of Iran and is moreover still in force. The Court recalls that
it had decided in 1980 that the Treaty of 1955 was applicable at that time
(United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J.
Reports 1980, p. 28, para. 54); none of the circumstances brought to its
knowledge in the present case would cause it now to depart from that view.
By the terms of Article XXI, paragraph 2, of that Treaty:
"Any dispute between the High Contracting Parties as to the interpretation
or application of the present Treaty, not satisfactorily adjusted by
diplomacy, shall be submitted to the International Court of Justice, unless
the High Contracting Parties agree to settlement by some other pacific
means."
16. It is not contested that several of the conditions laid down by this
text have been met in the present case: a dispute has arisen between Iran
and the United States; it has not been possible to adjust that dispute by [p
810] diplomacy and the two States have not agreed "to settlement by some
other pacific means" as contemplated by Article XXI. On the other hand, the
Parties differ on the question whether the dispute between the two States
with respect to the lawfulness of the actions carried out by the United
States against the Iranian oil platforms is a dispute "as to the
interpretation or application" of the Treaty of 1955. In order to answer
that question, the Court cannot limit itself to noting that one of the
Parties maintains that such a dispute exists, and the other denies it. It
must ascertain whether the violations of the Treaty of 1955 pleaded by Iran
do or do not fall within the provisions of the Treaty and whether, as a
consequence, the dispute is one which the Court has jurisdiction ratione
materiae to entertain, pursuant to Article XXI, paragraph 2.
***
17. The objection to jurisdiction raised by the United States comprises two
facets. One concerns the applicability of the Treaty of 1955 in the event of
the use of force; the other relates to the scope of various articles of that
Treaty.
**
18. The Court will deal initially with the Respondent's argument that the
Treaty of 1955 does not apply to questions concerning the use of force. In
this perspective, the United States contends that the attack and destruction
of the oil platforms
"occurred . . . in the context of a long series of attacks by Iranian
military and paramilitary forces on US and other neutral vessels engaged in
peaceful commerce in the Persian Gulf".
According to the Respondent, "it does not matter . . . how these incidents
of armed conflict are characterized"; essentially, the dispute relates to
the lawfulness of actions by naval forces of the United States that
"involved combat operations". Further, Treaties of Friendship, Commerce and
Navigation aim to provide
"protection for the property and interests of American citizens and
companies in the territory of the other party and to assure fair and
nondiscriminatory treatment with respect to engaging in commercial,
industrial and financial activities in those countries, in return for like
assurances for the nationals of those other parties in the territory of the
United States. There is simply no relationship between these wholly
commercial and consular provisions of the Treaty and Iran's Application and
Memorial, which focus exclusively on allegations of unlawful uses of armed
force."
In effect, according to the United States, Iran's claims raise issues
rela-[p 811]ting to the use of force, and these issues do not fall within
the ambit of the Treaty of 1955. For this reason, the Court is said to lack
jurisdiction to entertain the submissions of the Applicant.
19. In its Observations and Submissions on the Preliminary Objection of the
United States, Iran maintains that the dispute that has arisen between the
Parties concerns the interpretation or application of the Treaty of 1955. It
therefore requests that the preliminary objection be rejected, or, on a
subsidiary basis, if it is not rejected outright, that it should be regarded
as not having an exclusively preliminary character within the meaning of
Article 79, paragraph 7, of the Rules of Court.
20. The Court notes in the first place that the Treaty of 1955 contains no
provision expressly excluding certain matters from the jurisdiction of the
Court. Indeed, Article XX, paragraph 1 (d), provides that:
"1. The present Treaty shall not preclude the application of measures:
d) necessary to fulfil the obligations of a High Contracting Party for the
maintenance or restoration of international peace and security, or necessary
to protect its essential security interests."
This text could be interpreted as excluding certain measures from the actual
scope of the Treaty and, consequently, as excluding the jurisdiction of the
Court to test the lawfulness of such measures. It could also be understood
as affording only a defence on the merits. The Court, in its Judgment of 27
June 1986 in the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), adopted the
latter interpretation for the application of an identical clause included in
the Treaty of Friendship, Commerce and Navigation concluded between the
United States and Nicaragua on 21 January 1956 (I.C.J. Reports 1986, p. 116,
para. 222, and p. 136, para. 271). Iran argues, in this case, that the Court
should give the same interpretation to Article XX, paragraph 1 (d). The
United States, for its part, in the most recent presentation of its
arguments, stated that "consideration of the interpretation and application
of Article XX, paragraph 1 (d), was a merits issue". The Court sees no
reason to vary the conclusions it arrived at in 1986. It accordingly takes
the view that Article XX, paragraph 1 (d), does not restrict its
jurisdiction in the present case, but is confined to affording the Parties a
possible defence on the merits to be used should the occasion arise.
21. The Treaty of 1955 imposes on each of the Parties various obligations on
a variety of matters. Any action by one of the Parties that is incompatible
with those obligations is unlawful, regardless of the means by which it is
brought about. A violation of the rights of one party under the Treaty by
means of the use of force is as unlawful as would be a vio[p812]lation by
administrative decision or by any other means. Matters relating to the use
of force are therefore not per se excluded from the reach of the Treaty of
1955. The arguments put forward on this point by the United States must
therefore be rejected.
**
22. In the second place, the Parties differ as to the interpretation to be
given to Article I, Article IV, paragraph 1, and Article X, paragraph 1, of
the Treaty of 1955. According to Iran, the actions which it alleges against
the United States are such as to constitute a breach of those provisions and
the Court consequently has jurisdiction ratione materiae to entertain the
Application. According to the United States, this is not the case.
23. The Court recalls that, according to customary international law as
expressed in Article 31 of the Vienna Convention on the Law of Treaties of
23 May 1969, a treaty must be interpreted in good faith in accordance with
the ordinary meaning to be given to its terms in their context and in the
light of its object and purpose. Under Article 32, recourse may be had to
supplementary means of interpretation such as the preparatory work and the
circumstances in which the treaty was concluded.
*
24. Article I of the Treaty of 1955 provides that: "There shall be firm and
enduring peace and sincere friendship between the United States . . . and
Iran."
25. Iran contends that this provision
"does not merely formulate a recommendation or desire . . ., but imposes
actual obligations on the Contracting Parties, obliging them to maintain
long-lasting peaceful and friendly relations".
This interpretation is said to be required by the context, and to be
reinforced by the circumstances in which the Treaty was concluded. It is
described as the only interpretation which would enable "effectiveness" to
be imparted to Article I. That Article would, then, impose upon the Parties
"the minimum requirement . . . to conduct themselves with regard to the
other in accordance with the principles and rules of general international
law in the domain of peaceful and friendly relations"
and, particularly, in accordance with the relevant provisions of the Charter
of the United Nations and of customary law governing the use of force, as
well as with General Assembly resolution 2625 (XXV) concerning friendly
relations among States. For Iran,
"any violation by one party at the expense of the other of the rules of
international law pertaining to the threat and use of force, as well [p 813]
as pertaining to friendly relations between States, must at the same time be
considered as a violation of the Treaty of Amity".
The Court is accordingly said to have jurisdiction to evaluate the
lawfulness of the armed actions of the United States in relation to the
provisions of Article I of the Treaty of 1955 and, accordingly, in relation
to the rules of general international law thus "incorporated" into the
Treaty.
26. The United States considers, on the contrary, that Iran "reads far too
much into Article I". That text, according to the Respondent, "contains no
standards", but only constitutes a "statement of aspiration". That
interpretation is called for in the context and on account of the "purely
commercial and consular" character of the Treaty. It is said to correspond
to the common intention of the Parties, and to be confirmed by the
circumstances in which the Treaty was concluded and by the practice of the
Parties. It follows that the conduct of the United States cannot, in this
case, be evaluated in relation to the provisions of Article I. The Court is
said to lack jurisdiction to entertain the submissions of Iran based on that
Article.
27. Article I states that "There shall be firm and enduring peace and
sincere friendship" between the two Contracting States. The Court considers
that such a general formulation cannot be interpreted in isolation from the
object and purpose of the Treaty in which it is inserted.
There are some Treaties of Friendship which contain not only a provision on
the lines of that found in Article I but, in addition, clauses aimed at
clarifying the conditions of application: an explicit reference to certain
provisions of the Charter of the United Nations; consultation between the
Parties in certain circumstances, in particular in the event of an armed
conflict with a third State; or co-operation in the event of problems with
neighbouring States. Such, for instance, was the case of the Treaty of
Friendship and Good Neighbourliness between the French Republic and the
United Kingdom of Libya of 10 August 1955, which the Court had occasion to
interpret in its Judgment of 3 February 1994 in the case concerning the
Territorial Dispute (Libyan Arab Jamahiriya/Chad)(I.C.J. Reports 1994, p.
6). However, this does not apply to the present case.
Article I is in fact inserted not into a treaty of that type, but into a
treaty of "Amity, Economic Relations and Consular Rights" whose object is,
according to the terms of the Preamble, the "encouraging [of] mutually
beneficial trade and investments and closer economic intercourse generally"
as well as "regulating consular relations" between the two States. The
Treaty regulates the conditions of residence of nationals of one of the
parties on the territory of the other (Art. II), the status of companies and
access to the courts and arbitration (Art. III), safeguards for the
nationals and companies of each of the contracting parties as well as their
property and enterprises (Art. IV), the conditions for the purchase and sale
of real property and protection of intellectual property (Art. V), the tax
system (Art. VI), the system of transfers (Art. VII), customs duties and
other import restrictions (Arts. VIII and IX), freedom of [p 814] commerce
and navigation (Arts. X and XI), and the rights and duties of Consuls (Arts.
XII-XIX).
28. It follows that the object and purpose of the Treaty of 1955 was not to
regulate peaceful and friendly relations between the two States in a general
sense. Consequently, Article I cannot be interpreted as incorporating into
the Treaty all of the provisions of international law concerning such
relations. Rather, by incorporating into the body of the Treaty the form of
words used in Article I, the two States intended to stress that peace and
friendship constituted the precondition for a harmonious development of
their commercial, financial and consular relations and that such a
development would in turn reinforce that peace and that friendship. It
follows that Article I must be regarded as fixing an objective, in the light
of which the other Treaty provisions are to be interpreted and applied.
This conclusion is in conformity with that reached by the Court in 1986,
when, on the occasion of its interpretation of the Treaty of Friendship of
1956 between the United States and Nicaragua, it stated in general terms
that:
"There must be a distinction . . . in the case of a treaty of friendship,
between the broad category of unfriendly acts, and the narrower category of
acts tending to defeat the object and purpose of the Treaty. That object and
purpose is the effective implementation of friendship in the specific fields
provided for in the Treaty, not friendship in a vague general sense."
(I.C.J. Reports 1986, p. 137, para. 273.)
29. The Court must now turn its attention to the documents produced by the
Parties in support of their respective positions concerning the meaning to
be given to Article I. In this regard, it may be thought that, if that
Article had the scope that Iran gives it, the Parties would have been led to
point out its importance during the negotiations or the process of
ratification. However, the Court does not have before it any Iranian
document in support of this argument. As for the United States documents
introduced by the two Parties, they show that at no time did the United
States regard Article I as having the meaning now given to it by the
Applicant.
A clause of this type was inserted after the end of the Second World War
into four of the Treaties of Friendship and Commerce or Economic Relations
concluded by the United States, i.e., those concluded with China, Ethiopia
and Iran as well as with Oman and Muscat. Indeed, during the negotiation of
the treaty with China, the United States Department of State had indicated,
in a memorandum addressed to its embassy in Chongqing, that if such a clause
was not customary in treaties of this kind concluded by the United States,
its inclusion was nonetheless justified in that case "in view of the close
political relations between China and the United States". But, during the
discussions in the United States Senate that preceded the ratification of
the four Treaties, the clause does [p 815] not, according to the material
submitted to the Court, appear to have been given any particular attention.
Only in the message from the Secretary of State whereby he transmitted the
Treaty with Ethiopia to the Senate, after referring to the provisions in
question, was it pointed out that:
"Such provisions, though not included in recent treaties of friendship,
commerce and navigation, are in keeping with the character of such
instruments and serve to emphasize the essentially friendly character of the
treaty."
As for the clause on dispute settlement that was included in most of the
treaties of friendship and commerce concluded by the United States after
1945, it appears to have been consistently referred to by the Department of
State as being "limited to differences arising immediately from the specific
treaty concerned", as such treaties deal with "familiar subject matter" in
relation to which "an established body of interpretation already exists".
30. The practice followed by the Parties in regard to the application of the
Treaty does not lead to any different conclusions. The United States has
never relied upon that Article in proceedings involving Iran and, more
particularly, did not invoke that text in the case concerning United States
Diplomatic and Consular Staff in Tehran. Neither did Iran rely on that
Article, for example in the proceedings before this Court in the case
concerning the Aerial Incident of 3 July 1988.
31. In the light of the foregoing, the Court considers that the objective of
peace and friendship proclaimed in Article I of the Treaty of 1955 is such
as to throw light on the interpretation of the other Treaty provisions, and
in particular of Articles IV and X. Article I is thus not without legal
significance for such an interpretation, but cannot, taken in isolation, be
a basis for the jurisdiction of the Court.
*
32. Article IV, paragraph 1, of the Treaty of 1955 provides that:
"Each High Contracting Party shall at all times accord fair and equitable
treatment to nationals and companies of the other High Contracting Party,
and to their property and enterprises; shall refrain from applying
unreasonable or discriminatory measures that would impair their legally
acquired rights and interests; and shall assure that their lawful
contractual rights are afforded effective means of enforcement, in
conformity with the applicable laws."
33. Iran contends that this text places each of the Parties under an
obligation to accord "fair and equitable treatment" to nationals and
property of the other Party and to refrain from applying any "unreasonable
or discriminatory measures" to them, wherever those nationals or that
property may be. It submits that it falls to the Court to evaluate the [p
836] lawfulness of the armed actions of the United States in relation to
those provisions.
34. The United States considers on the contrary that
"Article IV, paragraph 1, deals with the treatment by one Party of nationals
and companies of the other Party that come within its territory for
commercial or private purposes".
It submits that that text
"cannot be read as a wholesale warranty by each Party to avoid all injury to
the nationals and companies of the other Party, regardless of location of
those nationals and companies".
The United States recalls that the actions allegedly committed by it do not
concern Iranian nationals or companies that come within the territory of the
United States. This means, in the view of the United States, that its
conduct cannot be evaluated in this case in relation to Article IV,
paragraph 1. The Court is thus said to lack jurisdiction to entertain the
submissions of Iran based on this text.
35. The Court observes in the first place that Article IV, paragraph 1,
unlike the other paragraphs of the same Article, does not include any
territorial limitation. The general guarantee made available by paragraph 1
has, on that account, a wider scope than the particular obligations laid
down by the other paragraphs in relation to expropriation, or acts of
interference with property or in relation to the management of enterprises.
It follows that the Court cannot accept the arguments of the United States
on this point.
36. However, the Court is no more able to uphold the argument of Iran.
Article IV, paragraph 1, states that the nationals and companies of one of
the contracting parties, as well as their property and enterprises, must be
treated by the other party in a "fair and equitable" manner. This text
prohibits unreasonable or discriminatory measures that would impair certain
rights and interests of those nationals and companies. It concludes by
specifying that their legitimately acquired contractual rights must be
afforded effective means of enforcement. The whole of these provisions is
aimed at the way in which the natural persons and legal entities in question
are, in the exercise of their private or professional activities, to be
treated by the State concerned. In other words, these detailed provisions
concern the treatment by each party of the nationals and companies of the
other party, as well as their property and enterprises. Such provisions do
not cover the actions carried out in this case by the United States against
Iran. Article IV, paragraph 1, thus does not lay down any norms applicable
to this particular case. This Article cannot therefore form the basis of the
Court's jurisdiction.
*
37. It remains to consider what consequences, in terms of the jurisdiction
of the Court, can be drawn from Article X, paragraph 1, of the Treaty of
1955.
That paragraph reads as follows: "Between the territories of the two High
Contracting Parties there shall be freedom of commerce and navigation."
38. It has not been alleged by the Applicant that any military action has
affected its freedom of navigation. Therefore, the question the Court must
decide, in order to determine its jurisdiction, is whether the actions of
the United States complained of by Iran had the potential to affect "freedom
of commerce" as guaranteed by the provision quoted above.
39. Iran has argued that Article X, paragraph 1, does not contemplate only
maritime commerce, but commerce in general; that it protects this without
territorial restriction; and that, apart from the activities of purchase and
sale of goods, it covers those which, at a prior stage, enable the goods to
be made ready for exchange. As a result, the Court is said to have
jurisdiction to evaluate the lawfulness of the armed actions of the United
States in the light of this provision.
40. The United States, for its part, maintained that this was not the case,
and put forward in support of that argument a more restrictive
interpretation of the word "commerce" in the provision in question.
According to the United States, that word must be understood as being
confined to maritime commerce; as being confined to commerce between the
United States and Iran; and as referring solely to the actual sale or
exchange of goods.
41. The Court must indeed give due weight to the fact that, after Article X,
paragraph 1, in which the word "commerce" appears, the rest of the Article
clearly deals with maritime commerce. Yet this factor is not, in the view of
the Court, sufficient to restrict the scope of the word to maritime
commerce, having regard to other indications in the Treaty of an intention
of the parties to deal with trade and commerce in general. The Court also
takes note in this connection of the recital in Article XXII of the Treaty
which states that the Treaty was to replace, inter alia, a provisional
agreement relating to commercial and other relations, concluded at Tehran on
14 May 1928. The Treaty of 1955 is thus a Treaty relating to trade and
commerce in general, and not one restricted purely to maritime commerce.
42. Also to be considered is the entire range of activities dealt with in
the Treaty < as, for example, the reference in Article IV to the freedom of
companies to conduct their activities, to enjoy the right to continued
control and management of their enterprises, and "to do all other things
necessary or incidental to the effective conduct of their affairs".
43. In these circumstances, the view that the word "commerce" in Article X,
paragraph 1, is confined to maritime commerce does not commend itself to the
Court.
44. The Court does not have to enter into the question whether this
provision is restricted to commerce "between" the Parties. It is not
contested between them that oil exports from Iran to the United States were
< to some degree < ongoing at least until after the destruction of the first
set of oil platforms.
45. The Court must now consider the interpretation according to which the
word "commerce" in Article X, paragraph 1, is restricted to acts of purchase
and sale. According to this interpretation, the protection afforded by this
provision does not cover the antecedent activities which are essential to
maintain commerce as, for example, the procurement of goods with a view to
using them for commerce.
In the view of the Court, there is nothing to indicate that the parties to
the Treaty intended to use the word "commerce" in any sense different from
that which it generally bears. The word "commerce" is not restricted in
ordinary usage to the mere act of purchase and sale; it has connotations
that extend beyond mere purchase and sale to include "the whole of the
transactions, arrangements, etc., therein involved" (The Oxford English
Dictionary, 1989, Vol. 3, p. 552).
In legal language, likewise, this term is not restricted to mere purchase
and sale because it can refer to
"not only the purchase, sale, and exchange of commodities, but also the
instrumentalities and agencies by which it is promoted and the means and
appliances by which it is carried on, and transportation of persons as well
as of goods, both by land and sea" (Black's Law Dictionary, St. Paul Minn.
West Publishing Co., 1990, p. 269).
Similarly, the expression "international commerce" designates, in its true
sense, "all transactions of import and export, relationships of exchange,
purchase, sale, transport, and financial operations between nations" and
sometimes even "all economic, political, intellectual relations between
States and between their nationals" (Dictionnaire de la terminologie du
droit international (produced under the authority of President Basdevant),
Sirey, 1960, p. 126 [translation by the Registry]).
Thus, whether the word "commerce" is taken in its ordinary sense or in its
legal meaning, at the domestic or international level, it has a broader
meaning than the mere reference to purchase and sale.
46. Treaties dealing with trade and commerce cover a vast range of matters
ancillary to trade and commerce, such as shipping, transit of goods and
persons, the right to establish and operate businesses, protection from
molestation, freedom of communication, acquisition and tenure of property.
Furthermore, in his Report entitled "Progressive Development of the Law of
International Trade", the Secretary-General of the United Nations cites,
among a number of items falling within the scope of the Law of International
Trade, the conduct of business activities pertaining to international trade,
insurance, transportation, and other matters (United Nations, Official
Records of the General Assembly, 21[p 819]st session, Annexes, Agenda item
88, doc. A/6396; also in Basic Documents on International Trade Law,
Chia-Jui Cheng (ed.), 2nd rev. ed., p. 3).
The Court notes that the Treaty of 1955 also deals, in its general articles,
with a wide variety of matters ancillary to trade and commerce.
47. It should also be noted that, in the original English version, the
actual title of the Treaty of 1955 - contrary to that of most similar
treaties concluded by the United States at that time, such as the Treaty of
1956 between the United States and Nicaragua - refers, besides "Amity" and
"Consular Rights", not to "Commerce" but, more broadly to "Economic
Relations".
48. The Court also notes that, in the decision in the Oscar Chinn case
(P.C.I.J., Series A/B, No. 63, p. 65), the Permanent Court of International
Justice had occasion to consider the concept of freedom of trade under
Article I of the Convention of Saint-Germain. The dispute before the Court
arose in the context of measures taken by the Belgian Government in relation
to river traffic in the waterways of the Congo. The Permanent Court
observed:
"Freedom of trade, as established by the Convention, consists in the right -
in principle unrestricted - to engage in any commercial activity, whether it
be concerned with trading properly so-called, that is the purchase and sale
of goods, or whether it be concerned with industry, and in particular the
transport business; or, finally, whether it is carried on inside the country
or, by the exchange of imports and exports, with other countries." (Ibid.,
p. 84.)
The expression "freedom of trade" was thus seen by the Permanent Court as
contemplating not only the purchase and sale of goods, but also industry,
and in particular the transport business.
49. The Court concludes from all of the foregoing that it would be a natural
interpretation of the word "commerce" in Article X, paragraph 1, of the
Treaty of 1955 that it includes commercial activities in general < not
merely the immediate act of purchase and sale, but also the ancillary
activities integrally related to commerce.
50. The Court should not in any event overlook that Article X, paragraph 1,
of the Treaty of 1955 does not strictly speaking protect "commerce" but
"freedom of commerce". Any act which would impede that "freedom" is thereby
prohibited. Unless such freedom is to be rendered illusory, the possibility
must be entertained that it could actually be impeded as a result of acts
entailing the destruction of goods destined to be exported, or capable of
affecting their transport and their storage with a view to export.
The Court points out in this respect that the oil pumped from the platforms
attacked in October 1987 passed from there by subsea line to the oil
terminal on Lavan Island and that the Salman complex, object of the attack
of April 1988, was also connected to the [p 820] oil terminal on Lavan by
subsea line.
51. The Court notes that Iran's oil production, a vital part of that
country's economy, constitutes an important component of its foreign trade.
On the material now before the Court, it is indeed not able to determine if
and to what extent the destruction of the Iranian oil platforms had an
effect upon the export trade in Iranian oil; it notes nonetheless that their
destruction was capable of having such an effect and, consequently, of
having an adverse effect upon the freedom of commerce as guaranteed by
Article X, paragraph 1, of the Treaty of 1955. It follows that its
lawfulness can be evaluated in relation to that paragraph. The argument made
on this point by the United States must be rejected.
52. The conclusions which the Court has reached above as to Article X,
paragraph 1, are confirmed by the nature of the Treaty of which this
provision forms a part. Its Article I has, as already observed, been drafted
in terms so general that by itself it is not capable of generating legal
rights and obligations. This is not to say, however, that it cannot be
invoked for the purpose of construing other provisions of the Treaty. The
Court cannot lose sight of the fact that Article I states in general terms
that there shall be firm and enduring peace and sincere friendship between
the Parties. The spirit and intent set out in this Article animate and give
meaning to the entire Treaty and must, in case of doubt, incline the Court
to the construction which seems more in consonance with its overall
objective of achieving friendly relations over the entire range of
activities covered by the Treaty.
***
53. In the light of the foregoing, the Court concludes that there exists
between the Parties a dispute as to the interpretation and the application
of Article X, paragraph 1, of the Treaty of 1955; that this dispute falls
within the scope of the compromissory clause in Article XXI, paragraph 2, of
the Treaty; and that as a consequence the Court has jurisdiction to
entertain this dispute.
54. Since it must thus reject the preliminary objection raised by the United
States, the Court notes that the submissions whereby Iran requested it, on a
subsidiary basis, to find that the objection did not possess, in the
circumstances of the case, an exclusively preliminary character, no longer
have any object.
***[p 821]
55. For these reasons,
THE COURT,
(1) rejects, by fourteen votes to two, the preliminary objection of the
United States of America according to which the Treaty of 1955 does not
provide any basis for the jurisdiction of the Court;
IN FAVOUR: President Bedjaoui; Judges Guillaume, Shahabuddeen, Weeramantry,
Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo,
Higgins, Parra-Aranguren; Judge ad hoc Rigaux;
AGAINST: Vice-President Schwebel; Judge Oda;
(2) finds, by fourteen votes to two, that it has jurisdiction, on the basis
of Article XXI, paragraph 2, of the Treaty of 1955, to entertain the claims
made by the Islamic Republic of Iran under Article X, paragraph 1, of that
Treaty.
IN FAVOUR: President Bedjaoui; Judges Guillaume, Shahabuddeen, Weeramantry,
Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo,
Higgins, Parra-Aranguren; Judge ad hoc Rigaux;
AGAINST:Vice-President Schwebel; Judge Oda.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this twelfth day of December, one thousand nine
hundred and ninety-six, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Islamic Republic of Iran and the Government of the United States of America,
respectively.
(Signed) Mohammed BEDJAOUI,
President.
(Signed) Eduardo VALENCIA-OSPINA,
Registrar.
Judges SHAHABUDDEEN, RANJEVA, HIGGINS and PARRA-ARANGUREN and Judge ad hoc
RIGAUX append separate opinions to the Judgment of the Court.
Vice-President SCHWEBEL and Judge ODA append dissenting opinions to the
Judgment of the Court.
(Initialled) M. B.
(Initialled) E. V. O.
[p 822]
SEPARATE OPINION OF JUDGE SHAHABUDDEEN
Preliminary
The question before the Court is whether the Applicant has a right to have
its claim adjudicated. The Respondent says there is not such a right. The
objection presents the Court with the delicate problem of ensuring, on the
one hand, that the Respondent is not given cause to complain that it has
been brought before the Court against its will, and, on the other hand, that
the Applicant is not left to feel that it has been needlessly driven from
the judgment seat. It is necessary to navigate carefully between these
perils.
As the Court has found, there is a dispute between the Parties, which it has
not been possible to adjust by diplomacy, and which the Parties have not
agreed to settle by any pacific means other than recourse to the Court. To
that extent, the corresponding conditions of the compromis-sory clause are
therefore satisfied. Nevertheless, the Parties differ on the question
whether there is a right of recourse to the Court, the particular issue
being
"whether the dispute between the two States with respect to the lawfulness
of the actions carried out by the United States against the Iranian oil
platforms is a dispute 'as to the interpretation or application' of the
Treaty of 1955" (Judgment, para. 16).
The Court has taken the position that:
"In order to answer that question, . . .[i]t must ascertain whether the
violations of the Treaty of 1955 pleaded by Iran do or do not fall within
the provisions of the Treaty and whether, as a consequence, the dispute is
one which the Court has jurisdiction ratione materiae to entertain, pursuant
to Article XXI, paragraph 2." (Ibid.)
Thus, in the view of the Court, the test of jurisdiction is whether the
alleged violations "do or do not fall within the provisions of the Treaty".
Some seeming plasticity in that statement notwithstanding, the remainder of
the Judgment makes it clear that what the statement means is that the Court
is required to make a definitive interpretation of the Treaty at this
jurisdictional phase. In paragraph 52, for example, the Court holds that
Article I of the Treaty "by itself ... is not capable of generating legal
rights and obligations" thus definitively determining the main issue
dividing the Parties on that provision. The Applicant had contended for a
lower test, which, however worded, does not involve the making of a
definitive interpretation of the Treaty at this stage. Without addressing [p
823] extensive arguments on the point, the Court has opted for the higher
test. If a lower test is used, the consequences are not wholly congruent
with those produced by the Court's test. Which is the right test?
The Objection
Put briefly, the issue now before the Court arises this way: the Respondent
contends that the 1955 FCN Treaty between itself and the Applicant is
irrelevant to the matters alleged in the Applicant's claim, and therefore
that the jurisdiction conferred by the compromissory clause of the Treaty is
not available.
To underpin the objection, the Respondent makes the opening submission that
the Court has to be satisfied that the compromissory clause of the Treaty
establishes that the Respondent has consented to the jurisdiction of the
Court in respect of this particular case. That is correct; the Applicant
does not say otherwise. It may be added that the Court must be clearly
satisfied that it has jurisdiction. However, whether the Court can be
satisfied, and satisfied with the requisite clarity, that the Parties have
consented to jurisdiction in this particular case depends on what exactly is
the kind of dispute over which they have agreed that the Court should have
jurisdiction. What they have agreed to submit to the Court is not a specific
dispute which can be concretely identified, but a category of disputes
defined as "[a]ny dispute between the High Contracting Parties as to the
interpretation or application of the present Treaty. . .'"FN1. The amplitude
of that language in a treaty is apparent; it embraces all "difficulties
which might be raised by this treaty" [translation by the Registry]FN2.
---------------------------------------------------------------------------------------------------------------------
FN1
In treaty practice, the phrase "interpretation or application" dates back to
the 1880s. See Factory at Chorzow, P.C.I.J., Series C, No. 13 (I), "Rιponse
du Gouvernement allemand ΰ l'exception prιliminaire du Gouvernement
polonais", pp. 174-176, and J. B. Moore, History and Digest of the
International Arbitrations to Which the United States Has Been a Party.
1898, Vol. V, p. 5057.
FN2 A. Merignhac, Traitι thιorique et pratique de l'arbitrage international.
Le rτle du droit, 1895, p. 202, para. 198. And see Dionisio Anzilotti, Corso
di diritto internazionale, Vol. 3, 1915, p. 56; Factory at Chorzow,
Jurisdiction, P.C.I.J., Series A, No. 9, p. 24; and I.C.J. Pleadings, United
States Diplomatic and Consular Staff in Tehran, p. 152 and p. 153, footnote
14.
---------------------------------------------------------------------------------------------------------------------
In this respect, it has to be borne in mind that, unlike the case with some
treaties, the compromissory clause of the 1955 FCN Treaty is not limited to
disputes as to the interpretation or application of some only of the
provisions of the Treaty: it extends to "any dispute ... as to the
interpretation or application of the present Treaty", i.e., as to any part
of the Treaty. Thus, the jurisdiction conferred by the compromissory clause
[p 824] could apply in relation to a provision of the Treaty even if the
provision creates no legal obligation; for, even if, on a true construction,
it creates no legal obligation, there could be a dispute between the Parties
as to whether it does a point not considered by the Court in its treatment
of the normative value and jurisdictional status of Article I of the Treaty.
More generally, the jurisdiction conferred by the compromissory clause could
be exercised even though it turns out that the Treaty does not apply to the
alleged acts or circumstances; for there can be a dispute as to the
interpretation or application of the Treaty in relation to a matter to which
it is eventually held that the Treaty does not apply. But reason says that
there must equally be a limit beyond which it is not possible for a dispute
as to the interpretation or application of a treaty to arise in relation to
matters to which the Treaty does not apply; beyond that limit, the
compromissory clause no longer operates to confer jurisdiction. Where is
that limit to be drawn?
The Jurisdictional Test
The location of the limit beyond which it is not possible for a dispute to
arise as to the interpretation or application of a treaty within the meaning
of its compromissory clause depends on the relationship between the claim
and the treaty on which the claim is sought to be based. The test as to what
should be the requisite relationship has been variously worded. It is
possible to argue, both interestingly and sagely, about which formulation is
best. Possibly, the differences in wording reflect the specific
characteristics of the particular cases. For present purposes, it is
sufficient to take the broad position that the various formulations may be
reasonably understood as embodying what, in an omnibus way, may be called a
form of relativity test. This opinion will consequently abstain from
microscopic examination of particular phrases used; it will call on them
interchangeably. They occur in the following dicta:
It "is not necessary for the Court to find . . . that the [claimant]
Government's interpretation of the Treaty is the correct one", nor for that
"Government to show. . . that an alleged treaty violation has an
unassailable legal basis" {Ambatielos, Merits, Judgment, I.C.J. Reports
1953, p. 18). But it "is not enough for the claimant Government to
establish a remote connection between the facts of the claim and the
Treaty" relied on (ibid.). The proper test is met where "the arguments
advanced by the [claimant] Government in respect of the treaty provisions on
which the . . . claim is said to be based, are of a sufficiently plausible
character to warrant a conclusion that the claim is based on the Treaty" [p
825] (I.C.J. Reports 1953, p. 18) or where "the interpretation given by the
[claimant] Government to any of the provisions relied upon appears to be one
of the possible interpretations that may be placed upon it, though not
necessarily the correct one . . ." (ibid.) or, "if it is made to appear that
the [claimant] Government is relying upon an arguable construction of the
Treaty, that is to say, a construction which can be defended whether or not
it ultimately prevails ..." (ibid.) or, where "the complaint . . .
indicatefs] some genuine relationship between the complaint and the
provisions invoked . . ." (Judgments of the Administrative Tribunal of the
ILO upon Complaints Made against Unesco, Advisory Opinion, I.C.J. Reports
1956, p. 89); or where "the terms and the provisions invoked appear to have
a substantial and not merely an artificial connexion with the" alleged act
(ibid.) or, where the assertion that the instrument relied on gave the
right claimed has "some serious juridical basis" (ibid., p. 90); or where
"the grounds invoked by the [claimant] Government are such as to justify
the provisional conclusion that they may be of relevance in [the] case . .
." (Interhandel, Judgment, I.C.J. Reports 1959, p. 24); or where the
provision in question "may be of relevance for the solution of the . . .
dispute" (ibid.) or where there is "a reasonable connection between the
Treaty and the claims submitted to the Court" (Military and Paramilitary
Activities in and against Nicaragua, Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1984, p. 427, para. 81).
*
Some of these formulations related to the functions of a body other than the
Court; others to the functions of the Court itself. Some were made at the
jurisdictional phase of a case before the Court; others at the merits phase.
A reasonable view, however, is that they may all be understood as
applicable to the functions of the Court itself in a situation in which it
is called upon to consider whether the alleged acts bear such a relationship
to the treaty relied on as to attract the jurisdiction provided for under
its compromissory clause.
In Ambatielos, it was at the merits stage of the case before it that the
Court spoke of the relevant jurisdictional criteria, and it spoke of them in
relation to the functions of an arbitral tribunal. It held that the United
Kingdom was under a treaty obligation to refer a dispute to arbitration. The
problem, presented late in the arguments, was how far could the Court go in
affirming such a duty without encroaching on the authority of the arbitral
body, in exercise of its competence de la competence, to decide on its own
jurisdiction. It is possible to see how the problem arose (see I.C.J.
Pleadings, Ambatielos, pp. 356ff., Henri Rolin, and p. 385, Fitzmaurice). A
distinction no doubt existed between the competence of the Court to
determine whether there was a duty to submit to arbitration and the
competence of the arbitral tribunal subsequently to determine whether it had
jurisdiction. Nevertheless, so far as the Court was con-[p 826]cerned, it
could scarcely hold that there was a duty to submit to arbitration without
also at least presuming that the dispute would be within the jurisdiction of
the arbitral body. Not surprisingly, there is a strong view that the Court
in substance held that the dispute would be within the jurisdiction of the
arbitral bodyFN3. It is difficult to see why, subject to subsequent
jurisprudential refinement, the substance of the Ambatielos test should not
apply wherever an issue arises as to whether a matter falls within the
jurisdiction of any deciding body, including the Court itself. The identity
of the particular deciding body is not material; what is material is the
juridical question involved. This is always the same whatever may be the
deciding authority. It is not logical to suppose that the Court would put
forward one jurisdictional test in the case of other tribunals and adopt a
different one in the case of itself.
---------------------------------------------------------------------------------------------------------------------
FN3
Sir Hersch Lauterpacht, The Development of International Law by the
International Court, 1958, p. 239.
---------------------------------------------------------------------------------------------------------------------
That the same test applies in relation to the Court is suggested by the
Interhandel and Military and Paramilitary Activities in and against
Nicaragua cases, in which the particular point at issue concerned the
jurisdiction of the Court itself. In Interhandel, whether there was an
obligation to submit a matter to arbitration was the subject of "an
alternative submission" by Switzerland. However, Switzerland's "principal
submission" sought an exercise of the Court's own jurisdiction for the
purpose of adjudging and declaring that the United States of America was
under an obligation to restore the seized assets of Interhandel (I.C.J.
Reports 1959, p. 19). In ruling on the respondent's objection to the Court's
jurisdiction on the ground that the seizure and retention of the assets were
matters within the domestic jurisdiction of the respondent, the Court said:
"In order to determine whether examination of the grounds . . . invoked [by
Switzerland] is excluded from the jurisdiction of the Court for the reason
alleged by the United States, the Court will base itself on the course
followed by the Permanent Court of International Justice in its Advisory
Opinion concerning Nationality Decrees Issued in Tunis and Morocco (Series
B, No. 4), when dealing with a similar divergence of view. Accordingly, the
Court does not, at the present stage of the proceedings, intend to assess
the validity of the grounds invoked by the Swiss Government or to give an
opinion on their interpretation, since that would be to enter upon the
merits of the dispute. The Court will confine itself to considering whether
the grounds invoked by the Swiss Government are such as to justify the
provisional conclusion that they may be of relevance in [p 827] this case
and, if so, whether questions relating to the validity and interpretation of
those grounds are questions of international law." (Interhandel, Judgment,
I.C.J. Reports 1959, p. 24.)
It is reasonably clear that in Interhandel the Court adopted a form of
relativity test in relation to its own jurisdiction. The Court did likewise
in Military and Paramilitary Activities in and against Nicaragua. It is not
satisfactory to say that the Court was merely recalling the respondent's
argument when it said:
"In order to establish the Court's jurisdiction over the present dispute
under the Treaty, Nicaragua must establish a reasonable connection between
the Treaty and the claims submitted to the Court." (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984,
p. 427, para. 81.)
In so far as the Court was recalling the respondent's submission, the Court
was also adopting it. It certainly did not reject the proposition; on the
contrary, its subsequent treatment of the matter accorded with the
proposition. It referred to or summarized five articles of the treaty in
question and then, without intervening remark, said:
"Taking into account these Articles of the Treaty . . ., there can be no
doubt that, in the circumstances in which Nicaragua brought its Application
to the Court, and on the basis of the facts there asserted, there is a
dispute between the Parties, inter alia, as to the 'interpretation or
application' of the Treaty." (Ibid., p. 428, para. 83.)
The Court did not make a definitive interpretation of the treaty texts; it
did not analyse them; it gave them limited consideration almost restricted
to inspection for the purpose of determining whether there was "a
reasonable connection" between them and the claims submitted to the Court.
Interestingly, also, almost throughout its written and oral presentation in
the instant case the Respondent argued in favour of a "reasonable
connection" test, as it did in the Military and Paramilitary Activities in
and against Nicaragua case, and so to this extent accepted that some form of
relativity test was applicable.
A Definitive Interpretation of the Treaty Cannot Be Made at the Preliminary
Stage
Developing the point last alluded to, one may recall that Military and
Paramilitary Activities in and against Nicaragua was not the only case in
which the Court refrained from making a definitive interpretation of the
relevant texts. Similar restraint was shown in Ambatielos. Likewise in [p
828] Interhandel, as appears from the passage cited above. It will be
remembered that in the last-mentioned case the United States of America
contended that Article IV of the Washington Accord, which was relied on by
Switzerland, was "of no relevance whatever in the present dispute" an idea
central to the objection in this case. The Parties were in disagreement over
certain terms of that Article. Referring to this, the Court said:
"The interpretation of these terms is a question of international law which
affects the merits of the dispute. At the present stage of the proceedings,
it is sufficient for the Court to note that Article IV of the Washington
Accord may be of relevance for the solution of the present dispute and that
its interpretation relates to international law." (I.C.J. Reports 1959, p.
24.)
Thus, the instrument relied on may be judged relevant for the solution of
the dispute, with resulting jurisdiction, even though the interpretation of
its terms is regarded as a matter for the merits.
In the course of determining whether the alleged circumstances bear the
requisite relationship to the treaty relied on in order to attract the
jurisdiction provided for by the compromissory clause, the Court cannot
altogether avoid some interpretation of the treaty. But, if the foregoing
approach is correct, the issue before the Court at the preliminary stage,
and on which jurisdiction under the compromissory clause turns, is not
whether the treaty applies to the alleged circumstances, but whether the
applicant has an arguable contention to that effect. Thus, the Court can
only interpret the treaty at the jurisdictional stage in so far as it is
necessary to do so for the purpose of determining whether the applicant's
interpretation of the treaty is an arguable one, and not for the purpose of
determining definitively whether the treaty applies to the alleged
circumstances. The more limited function is undertaken by the Court in
exercise of its competence de la competence; the more definitive function is
undertaken in exercise of its substantive jurisdiction. In exercise of its
competence de la competence, the Court could well hold that the applicant
has an arguable contention that the treaty applies to the alleged
circum-stances even if, in exercise of the substantive jurisdiction which
flows from that holding, it eventually holds that the treaty does not. In
effect, the treaty may not apply to the alleged circumstances and yet the
Court may have substantive jurisdiction to determine precisely whether it
does.
*
There is a different line of holdings. Cases have occurred in which, when
dealing with the question whether the dispute fell within the jurisdiction
conferred on the Court by the compromissory clause of the [p 829] treaty,
the Court took a position which suggests that it was of the view that it was
required at the jurisdictional stage to determine definitively whether the
provisions relied on by the applicant applied, on their true construction,
to the alleged circumstances (see, for example, Mavromma-tis Palestine
Concessions, P.C.I.J., Series A, No. 2, p. 16, and Application of the
Convention on the Prevention and Punishment of the Crime of Genocide,
Judgment, I.C.J. Reports 1996, pp. 615-617, paras. 30-33). That view, which
the Court has adopted in this case, differs materially from the more limited
view that the duty of the Court at this stage is merely to decide whether
the construction of the treaty on which the applicant relies for saying that
the treaty applies to the alleged circumstances is an arguable one in the
sense mentioned above.
*
Which of these two different strands of jurisprudence should the Court now
follow? The solution is to be found in returning to the terms of the
compromissory clause. Under this, jurisdiction depends on whether there is a
dispute between the parties as to the interpretation or application of the
treaty. There could be a dispute as to whether there is a dispute as to the
interpretation or application of the treaty. To decide on the correctness
of the applicant's interpretation is to decide the second dispute, not the
first; and that is to determine part of the substance of the claim before
the merits stage has been reached. The reason is that, as in munici-pal law,
proof of a claim before the Court involves proof of two things, first, that
the alleged obligation exists in law, and, second, that the obligation was
breached on the facts (see, in this respect, Ambatielos, Merits, Judgment,
I.C.J. Reports 1953, p. 17). The second of these two points would turn on
the evidence. The first point would be determined by making a definitive
interpretation of the texts relied on (including general international law)
with a view to ascertaining whether they placed the respondent under the
asserted obligation. The making of that interpretation is therefore a matter
for the merits. The proposition may be tested this way.
It is possible to conceive of a dispute in which, the facts being agreed,
the sole question is whether, on its true interpretation, the treaty relied
on applies to those facts. If, in the course of determining a preliminary
objection that the treaty is wholly irrelevant to the claim, the Court were
to decide the question of interpretation in favour of the applicant, nothing
would be left for determination at the merits stage; the Court would be
determining the merits at the preliminary stage, that is to say, at a time
when, according to Article 79, paragraph 3, of the Rules of Court, the
merits stood suspended. On the view presently offered, there would be
something left for determination at the merits stage, since all that the
Court would be now deciding is that the applicant can present an argu-[p
830] able construction of the treaty to support its claim that the treaty
applies to the alleged facts. Whether the treaty, on its true construction,
does indeed apply would then be determined at the merits stage.
If it is thought that that example leads to an undesirable necessity to
continue the proceedings to the merits stage, the answer lies in the fact
that, as has been often observed, the Court lacks a filter mechanism through
which, on the model available in some municipal legal systems, part of the
merits could be argued and decided in advance of the normal merits stage. In
such systems it is possible to argue, ahead of the normal merits phase,
that, taking the facts alleged by the plaintiff at their highest, they do
not justify the claim for the reason that the asserted obligation does not
exist in law, or that, if it exists, it is not breached by the alleged
facts. The practice of thus "striking out" an application has not yet
developed in proceedings before this Court. Except in the indirect sense in
which they are contemplated by Article 36, paragraph 6, of the Statute, the
latter lays down no procedure relating to preliminary objections. An
applicant is entitled under the Statute to a hearing at the normal merits
stage, both for the purpose of showing that, on the law, the alleged
obligation exists, and for the purpose of showing that, on the facts, the
obligation was breached by the respondent. Misunderstanding arises if this
difference between the Court's system and municipal systems is not borne in
mind in fixing the limits of preliminary proceedings based on an objection
which in effect asserts that there is no dispute within the meaning of the
compromissory clause sought to be invoked for the reason that the treaty
containing the clause is irrelevant to the applicant's claim. The
determination of such an objection cannot extend to the question whether, on
a true construction of the treaty, the asserted obligation exists. This
would be a matter for the merits in the ordinary way; preliminary
pro-ceedings cannot change that.
There being no desire to extend this opinion unduly, it is simply submitted
that the 1972 changes in the Rules of Court did not abrogate the fundamental
principle that a preliminary decision cannot decide, or even prejudge,
issues belonging to the merits. The idea that, in determining preliminary
objections, the Court's enquiry could "touch" on the merits went back to the
1920s. The 1972 amendments encouraged the Court to proceed along earlier
established lines and consequently to dispose of preliminary objections even
if the Court would have to "touch" on the merits, but only within the limits
of the equally long-settled principle that the Court cannot determine or
prejudge the merits at the preliminary stage; the 1972 amendments did not
authorize the Court to depart from this principle. Therefore, all that the
Court can decide in preliminary proceedings of this kind is whether the
applicant's construction of the treaty is or is not arguable. [p 831]
One accepts that, since jurisdiction depends on consent, the Court has to
decide definitively, and not provisionally, that the particular dispute is
"within the category of disputes for which the [Respondent] has accepted the
jurisdiction of the Court" (Mavrommatis Palestine Concessions, Judgment No.
2, 1924, P. C.I. J., Series A, No. 2, p. 29; and see ibid., p. 16). But a
distinction has to be drawn between the making of a definitive decision as
to whether the dispute falls within the stipulated category of disputes and
the criterion on which the decision is made. There is no reason why a
definitive decision of that kind can not be made on the basis of a criterion
based on a possibility in this case, the possibility that the applicant
can present an arguable construction of the instrument to support its
claim. Other areas of the law show that a court could well take definitive
decisions on the basis of its appreciation of a possibility.
The circumstance that the correct criterion to be employed was not argued in
the line of cases ending with the recent case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide does
not mean that those cases should be disregarded. But that circumstance may
be properly borne in mind in considering the value of other and more fully
reasoned cases which suggest that the task of the Court at this stage is not
to make a definitive interpretation of the treaty, but only to determine
whether the construction of the treaty on which the applicant relies is an
arguable one in the sense mentioned above. It is respectfully submitted that
this is the correct position, and that that adopted by the Court is
mistaken.
How Can a Relativity Test Be Applied?
The conclusion is reached then that the Court's statement in Ambatielos that
it "is not necessary for the Court to find . . . that the [claimant]
Government's interpretation of the treaty is the correct one" is applicable
to the determination of any issue (however worded) as to whether the
instrument relied on is relevant to the claim. It follows that, since the
Court cannot at this stage place a definitive construction on the 1955
Treaty and consequently cannot thereby set up a known benchmark by reference
to which it could determine whether there is a reasonable con-nection
between the Treaty and the claim, all that the Court can do in determining
whether such a connection exists is to say whether the interpretation given
by the applicant to the treaty "relied upon appears to be one of the
possible interpretations that may be placed upon it, though not necessarily
the correct one ..." (Ambatielos, Merits, Judgment, I.C.J. Reports 1953, p.
18).
Further, in determining whether the requisite connection exists, it is
useful to consider that, in the nature of things, it is only in exceptional
and clear cases that the Court may find that an applicant's assertion that
the instrument relied on gave the right claimed lacks "some serious
juridi-[p 832]cal basis", to use one of the phrases employed by the Court.
Counsel would not advise litigation unless it was considered that some
serious juridical basis existed. That thought does not of course absolve the
Court of its responsibility to exclude cases lacking that characteristic;
but it does advise caution. If the Court has to wrestle its way to the
conclusion that a claim lacks a serious juridical basis, that is scarcely a
case for exclusion. The Jaffa claims in the Mavrommatis Palestine
Concessions case are illustrative. There the Court held that the dispute
between the two Governments concerning the claims "has no connection with
Article 11 of the Mandate and consequently does not fall within the
category of disputes for which the Mandatory has accepted the jurisdiction
of the Court" (P.C.I.J., Series A, No. 2, p. 29). In coming to this
conclusion and the word "connection" may be noted the Court observed
that it was "impossible to maintain" an argument leading to the opposite
effect (ibid., p. 28). Translated into the terminology of the later
jurisprudence, that observation in a very early case would mean that, in
the view of the Court, the applicant's construction of the instruments
relied on as capable of showing the necessary "connection" between the
claims and Article 11 of the Mandate was simply not arguable in the sense
mentioned above.
How then is it to be determined whether the applicant's construction of the
treaty is arguable? An objection that there is no reasonable connection
between a claim and the treaty relied on really raises a dispute as to
whether there is a dispute within the meaning of the compromissory clause
which is sought to be invoked. So, it is helpful to recall that, as a
general matter, there is no dispute within the meaning of the law where the
claim lacks any reasonably arguable legal basis or where it is manifestly
frivolous or unsupportable (Nuclear Tests (Australia v. France), I.C.J.
Reports 1974, p. 430, Judge ad hoc Barwick, dissenting, and Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, p. 535, Judge Jennings,
dissenting. See also the analogous views of Judge ad hoc Spiropoulos in his
separate opinion in Ambatielos, Preliminary Objection, Judgment, I.C.J.
Reports 1952, p. 56). As was observed in the joint dissenting opinion in the
Nuclear Tests (Australia v. France) case:
"if an applicant were to dress up as a legal claim a case which to any
informed legal mind could not be said to have any rational, that is,
reasonably arguable, legal basis, an objection contesting the legal [p 833]
character of the dispute might be susceptible of decision in limine as a
preliminary question" (I.C.J. Reports 1974, p. 364, para. 107).
A tenable view is that whether the Applicant's construction of the Treaty in
this case is "arguable", or whether it is "sufficiently plausible," or
whether the Treaty is "of relevance" to the claim, or whether the claim has
some "serious juridical basis", is likewise to be decided by the Court from
the point of view that might be taken by "any informed legal mind". The
Court can only hold that the Applicant's construction is not "arguable", or
that it is not "sufficiently plausible", or that the Treaty is not "of
relevance" to the claim, or that the claim lacks some "serious juridical
basis", or that the corresponding criterion set by other similar
formulations is not met, if, from the point of view of an informed legal
mind, it finds that the construction relied on is not based on rational and
reasonably arguable grounds, account being taken of the fact that, as was
remarked by Brierly, "different minds, equally competent may and often do
arrive at different and equally reasonable results"FN4. To hold that this
opens the way to inadmissible subjectivity is to misunderstand the
processes of judicial thought: an ultimate standard by which the Court
appreciates many a legal issue is that set by the informed legal mind.
---------------------------------------------------------------------------------------------------------------------
FN4
Sir Hersch Lauterpacht and C. H. M. Waldock (eds.), The Basis of Obligation
in International Law and Other Papers by the Late James Leslie Brierly,
1958, p. 98. Or, as it was said in an English case,
"Two reasonable [persons] can perfectly reasonably come to opposite
conclusions on the same set of facts without forfeiting their title to be
regarded as reasonable. . . . Not every reasonable exercise of judgment is
right, and not every mistaken exercise of judgment is unreasonable." (Per
Lord Hailsham, In re W. (An Infant), [1971] AC 682, HL, p. 700.)
---------------------------------------------------------------------------------------------------------------------
In sum, the law in action as I also believe, the legal scientific
community gives recognition to the possibility of an arguable contention
being made that a given situation falls within a certain juridical category
as well as to the impossibility of an arguable contention being made to that
effect. In the first situation, there is a reasonable chance that the
contention may or may not prevail; in the second, it is clear that the
contention must fail. In other words, the law in some cases allows for an
evaluation of the prospects of success, with resulting legal consequences.
In like manner, the jurisprudence of the Court discloses a jurisdictionally
significant distinction between a claim which is based on an arguable
construction of the instrument relied on and a claim which is not based on
an arguable construction of the instrument relied on. In all these cases the
Court judges by the standard set by an informed legal mind. [p 834]
The Judgment in Relation to Particular Provisions of the Treaty
If a lower test, such as that of a reasonable connection, is the right one,
it would strengthen the Judgment on some points, although also tending on
other points to yield results which might not be exactly the same as those
reached by the Court on the basis of the higher test used by it.
In a prefatory way, it would be right to have regard to the nature of the
case. The Respondent admits that it destroyed the Applicant's oil platforms
in question, but it says that it did so in self-defence against previous
acts of aggression committed against it by the Applicant. If the Applicant
accepted that the Respondent was acting in self-defence but sought to
contend that the Treaty nonetheless prohibited the use of force in
self-defence, its contention to that effect would, in terms of the
jurisprudence referred to above, be unarguable to the point of being
artificial. In that event, it would be the duty of the Court to say at this
stage that such a contention could not found a dispute as to the
interpretation or application of the Treaty within the meaning of its
compromissory clause and accordingly to hold that the Court has no
jurisdiction thereunder. To hold otherwise would be to overlook the
responsibility of the Court to defend its process against abuse.
But the Applicant does not accept that the Respondent was acting in
self-defence; nor does it make the improbable assertion that the Treaty
prohibits the use of force in self-defence. It is saying that the use of
force by the Respondent was aggressive and that such use of force by one
Party against the other is prohibited by the Treaty (apart from any
prohibition flowing from general international law). The Respondent rightly
accepts that, for jurisdictional purposes, the Court has to proceed on the
footing that the Applicant is correct in its allegations as to what were the
facts relating to the merits. (For supporting dicta, see Mavrommatis
Palestine Concessions, Judgment No. 2, 1927, P. C.I. J., Series A, No. 2,
pp. 74-75, dissenting opinion of Judge Moore, and Nottebohm, Second Phase,
Judgment, I.C.J. Reports 1955, p. 34, dissenting opinion of Judge Read). In
particular, the Respondent accepts that it is not open to the Court at this
stage of the proceedings to make a finding on its contention that it was
acting in self-defence (CR 96/13, p. 61). It is on this basis that the
present issues should be approached.
*
As to Article I of the Treaty, in addition to the elements of the Preamble
referred to in the third paragraph of paragraph 27 of the Judgment,
relating to trade, investments, economic intercourse and consular [p 835]
relations, the Preamble, in its opening sentences, stated that the parties
were "desirous of emphasizing the friendly relations which have long
prevailed between their peoples, of reaffirming the high principles in the
regulation of human affairs to which they are committed . . .". Stressing
this part of the Preamble as being also pertinent to an appreciation of the
object and purpose of the Treaty, the Applicant emphasized that Article I
(which has no counterpart in the FCN Treaty in Military and Paramilitary
Activities in and against Nicaragua) is in any event not a preambular
statement; it is part of the operative provisions of the Treaty. Being an
operative provision, it might be thought that it is at least arguable that
it is not merely "aspirational", but that it has a normative character
that it propounds a rule of conduct. There is not in principle any reason
why parties cannot by treaty bind themselves legally to live in firm and
enduring peace and sincere friendship with each other. In Military and
Paramilitary Activities in and against Nicaragua, the Court recognized that
it was possible for parties by an appropriately worded treaty to bind
themselves "to abstain from any act toward the other party which could be
classified as an unfriendly act, even if such act is not in itself the
breach of an international obligation" (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, pp. 136-137, para. 273). To
determine whether there is jurisdiction to decide whether Article I of the
1955 Treaty is such a provision, the Court would have needed to ask whether
the close and extensive arguments between the Parties (not here fully
recited) sufficed to show that the Applicant's construction of the provision
was an arguable one, even if it might later turn out to be incorrect. This
has not been the Court's approach.
There is a further point. The Court seems to have proceeded on the basis
that, if the provision does not create a legal obligation, that suffices to
negative the existence of jurisdiction (see Judgment, paras. 31 and 52).
However, even if the provision does not create a legal obligation, it need
not follow that there cannot be a dispute as to its interpretation or
application so as to give the Court jurisdiction. As has been noted above,
unlike the position in some other treaties, the compromissory clause in this
case applies in relation to the whole of the treaty, and not only to some
parts of it; the clause speaks of "[a]ny dispute ... as to the
interpretation or application of the present Treaty . . .". Article I is
part of the Treaty. There can be a dispute between the Parties as to whether
it creates a legal norm. That dispute can be a dispute within the meaning
of the compromissory clause and can give rise to jurisdiction. The Court has
not pursued the enquiry along these lines.
Also, if the existence of a dispute as to whether Article I of the Treaty
creates a legal obligation suffices to confer jurisdiction, there could be
cir-[p 836]cularity in holding that there is no jurisdiction because the
provision does not create a legal obligation. Whether it creates a legal
obligation is the substance of the dispute and can only be ascertained in
exercise of jurisdiction to determine the dispute. On the test which it has
used, the Court has not had occasion to consider whether a holding that the
provision creates no legal obligation presupposes the existence of the
jurisdiction which has been found wanting in respect of the provision.
Finally, I entertain a reservation over the Court's treatment of the
Respondent's internal documentation relating to its ratification procedures
(Judgment, para. 29, first paragraph). This material does not form part of
the travaux prιparatoires of the previously ended treaty negotiations or
part of the circumstances of the conclusion of the Treaty. Nor does it
evidence any subsequent practice of the Parties in the application of the
Treaty which establishes their agreement regarding its interpretation. The
argument based on the fact that the material was in part introduced by the
Applicant is a powerful one ; but perhaps it does not go far enough. It is
necessary to distinguish between the material and what it proves, and more
particularly as compared with what has to be proved. In Anglo-Iranian Oil
Co., in the view of the Court what had to be proved was the intention of a
single party in making a declaration which was treated by the Court as a
unilateral statement, and not as a treaty provision; the material in
question was regarded as admissible to prove that intention (I.C.J. Reports
1952, p. 107). In this case, what has to be proved is the common intention
of both Parties as expressed in the text of the concluded treaty. The Court
does not say that the material in question shows that the Applicant's
understanding of the Treaty was the same as the Respondent's. Taken at the
highest in favour of the Respondent, what the material shows is that the
Respondent's then understanding of the Treaty was the same as its present
understanding. But this unilateral consistency does not make the material
relevant to proof of that which has to be proved; what is relevant is not
the Respondent's separate understanding, however consistent, but the common
intention of both Parties as expressed in the terms of the concluded Treaty.
*
As to Article IV, paragraph 1, of the Treaty, the Judgment favours the
Applicant on all points, save one. This concerns the meaning of the word
"treatment" in the phrase "fair and equitable treatment" appearing in that
provision. The result of the Court's reasoning is that the word does not
cover a case of State destruction by armed force. If, as seems likely, [p
837] the word covers a case of property which is, by armed force, taken and
retained by a State for its own use, it may be arguable that it likewise
covers a case of property which is, by armed force, taken by the State by
destroying it: the idea that property destroyed is property taken is known
to lawFN5. Hence, if a State takes property, either for its own use or for
the purpose of destroying it, there could be a question whether that
constitutes impermissible "treatment" in one case as much as in the other.
On the test which it has used, the Court has not had occasion to consider a
question of this kind.
---------------------------------------------------------------------------------------------------------------------
FN5
See Corpus Juris Secundum, Vol. 29A, 1965, pp. 442 ff.
---------------------------------------------------------------------------------------------------------------------
In a subsidiary way, I would add that the last three sentences of paragraph
36 of the Judgment rest on a misconception. True, as is obvious, Article IV,
paragraph 1, of the Treaty does not regulate military action by one party
against the other. But it does not follow that military action cannot result
in a violation of that provision, as is suggested by this part of the
Judgment. Elsewhere, in paragraph 21, the Judgment correctly recognizes that
the use of force could lead to a breach of the provisions of the Treaty,
even if the Treaty does not regulate the use of force. There was no state of
war between the Parties, and no question of the Treaty being suspended; on
the contrary, as paragraph 15 of the Judgment makes clear, both Parties
agreed that the Treaty was at all times in effect. The use of armed force
could obviously involve impermissible treatment of the nationals of a party
or of their property, contrary to the obligations imposed by Article IV,
paragraph 1, of the Treaty.
*
On the other hand, the following may be added in support of the position
taken by the Court on Article X, paragraph 1, of the Treaty:
First, as to whether, in the phrase "commerce and navigation" appearing in
Article X, paragraph 1, of the Treaty, the word "commerce" is qualified by
the word "navigation" so as to refer only to maritime commerce as submitted
by the Respondent. In its 1986 Judgment in the Military and Paramilitary
Activities in and against Nicaragua case, the Court considered that the
laying of mines in the port constituted "an infringement ... of the freedom
of communications and of maritime commerce" I.C.J. Reports 1986, p. 129,
para. 253). But that remark was based on certain navigation rights existing
under "customary international law" (ibid., p. 112, para. 214) ; thus, the
Court spoke of "obligations under customary international law . . . not to
interrupt peaceful maritime com-[p 838]merce" (7. C.J. Reports 1986, p.
147, para. 292 (6)). When the Court came to consider whether the laying of
mines violated the "freedom of commerce and navigation" clause set out in
Article XIX, paragraph 1, of the 1956 FCN Treaty, it did not speak of
"maritime commerce"; it spoke of the respondent's "obligations under Article
XIX of the" FCN Treaty (ibid., p. 147, para. 292 (7)). It is legitimate to
suppose that this careful difference in expressions signified that the Court
wished to avoid being thought to be limiting "freedom of commerce" under the
Treaty to freedom of maritime commerce. Also, if, as it seems, the Court
considered that freedom of commerce under Article XIX, paragraph 1, of the
Treaty was not limited to maritime commerce but embraced all forms of
commerce, this would explain why the Court held that the respondent, "by
the attacks on Nicaraguan territory . . . has acted in breach of its
obligations under Article XIX of the Treaty . . ." (ibid., p. 148, para.
292 (11)). It was on the basis of a contrary view that the clause was
"exclusively devoted to matters of maritime commerce" that Judge Oda
expressed dissatisfaction with this part of the Judgment (ibid., p. 251,
para. 84, dissenting opinion). There is some basis for reading the Court's
1986 Judgment as leading to the conclusion that freedom of "commerce and
navigation" under Article X, paragraph 1, of the 1955 Treaty between the
Parties in this case was not restricted to maritime commerce.
Second, as to the argument an argument of some force that the oil
platforms in question related to production and not to commerce. There is
manifestly a distinction between the two processes; but where the precise
line is to be drawn between them is less clear in the case of an industry in
which production was closely articulated to external commerce. Take the
hypothesis (suggested by paragraph 51, first paragraph, of the Judgment) of
a State being dependent for its foreign currency earnings on its exports of
locally produced oil. Conceivably, another State, desiring to eliminate the
commerce productive of these export earnings, may proceed either to blockade
the export facilities or to destroy the oil production facilities. It is not
altogether clear that the particular method employed lessens the fact that,
either way, the second State would have accomplished its purpose of
eliminating the first State's commerce in oil. The suggested distinction, in
its strict form, is not easily accommodated by the Treaty when this is
interpreted in the geopolitical framework in which it was negotiated: the
shelter given to commerce was intended, at the time when it was given,
largely for the future protection of export-oriented economic interests of
the Respondent's corporations in the Applicant's oil industry. Some weight
may be accorded to the Applicant's proposition that the same words in
similar treaties may have different meanings when the particular treaty is
interpreted in the special context in which it was negotiated. These
considerations may be neither right nor decisive; but they are sufficient to
suggest that the Applicant [p 839] may be correctly allowed to argue in
favour of its point of view at the merits stage.
Disadvantages to the Parties of the Court's Test
If, for the foregoing reasons, it is thought that the Court's test creates
some disadvantages for the Applicant, it need not be assumed that it leads
to no disadvantages for the Respondent; it does. And they could be serious.
Take the holdings against the Respondent in paragraphs 21 and 51 of the
Judgment. It is true that a holding on jurisdiction does not conclude issues
at the merits. But if, in deciding the jurisdictional issue, the Court could
competently render a definitive interpretation of the Treaty, it is
difficult to see how that interpretation could fail to govern at the merits
stage, where that stage is reached. In the first of the two holdings
referred to, the Court rejects the Respondent's contention that the Treaty
of 1955 cannot apply to questions concerning the use of force.
Theoretically, it may be argued that this holding would not prevent the
Respondent from arguing at the merits stage that the Treaty cannot apply to
questions concerning the use of forceFN6. But, given the importance of the
opposite interpretation to the holding made by the Court at the preliminary
stage, it is difficult to see how that interpretation could be reversed at
the merits stage. In practice, the Respondent would thus be prevented from
putting forward at the merits stage an argument essential to the substance
of its case; in a conceivable case, even though not in this, that might be
the respondent's only argument on the substance. In the second of the two
holdings, the Court rejects the Respondent's contention that the claims of
the Applicant cannot be founded upon Article X, paragraph 1, of the Treaty
of 1955. Would not this holding likewise prevent the Respondent from arguing
at the merits stage that the claims of the Applicant cannot be founded upon
Article X, paragraph 1, of the Treaty of 1955?
---------------------------------------------------------------------------------------------------------------------
FN6
See Georges Abi-Saab, Les exceptions prιliminaires dans la procιdure de la
Cour internationale, 1967, p. 246.
---------------------------------------------------------------------------------------------------------------------
In the normal way, these are issues which the Respondent is considered free
to argue at the merits stage for the reason that they bear on the question
of the existence of the legal obligations which have been allegedly [p 840]
breached. The right to argue at the merits that the alleged obligations did
not exist in law is distinct from the right to rely, by way of defence on
the merits, on the matters specified in Article XX, paragraph 1 (d), of the
Treaty, a subject discussed in paragraph 20 of the Judgment. The right to
rely on such specified matters by way of defence on the merits is not
therefore an answer to the fact that the Judgment deprives the Respondent
of the opportunity to argue that the obligations in question did not in the
first instance exist. There would be no need to rely on the specified
matters by way of defence on the merits if it was established that the
alleged obligations did not exist in law.
These difficulties do not arise if the correct jurisdictional test is
whether the Applicant's construction of the Treaty is an arguable one. If
all that the Court holds is that the Applicant's interpretation of the
Treaty is an arguable one, it does not follow that the Court is saying that
the Respondent's interpretation is wrong. Both interpretations could be
arguable; indeed, it may happen that the Applicant's interpretation does not
prevail at the merits stage, and that it is the Respondent's interpretation
which is eventually upheld. On this approach, nothing would prevent the
Respondent from advancing its interpretation of the Treaty at the merits
stage. But the argument then will be a different one. It will not be
addressed to the preliminary question whether the Applicant can present an
arguable contention that the Treaty applies to the alleged acts; it will be
addressed to the substantive question whether the Treaty applies to those
acts. The former question, which is decided in exercise of the Court's
competence de la competence, goes to the right of the Applicant to have its
claim adjudicated. By contrast, the latter question, which is decided in
exercise of the Court's substantive jurisdiction, goes to the adjudication
of the claim on the basis that the Applicant has a right to have the claim
adjudicated. It goes to the question whether the obligation, which the
Applicant claims was breached, exists in law: if the obligation does not
exist, there could be no breach of any obligation and the claim that there
was a breach of an obligation fails on the merits.
Conclusion
Possibilities for improvement do not prevent me from giving support to the
dispositif in the form in which it stands. I have given that support. It
appears to me, however, that the Court has not paid sufficient regard to the
fact that the question at this stage is not whether the Applicant's claims
are sound in law, but whether the Applicant is entitled to an adjudication
of its claims. The neglect to distinguish between these issues as
consistently as was required corresponds with the fact that the Court has
sought to make a definitive determination of the meaning of the 1955 Treaty,
whereas, in my view, it should merely have asked whether the construction of
the Treaty on which the Applicant relied was an arguable [p 841] one, even
if it might eventually turn out to be incorrect. The respectful impression
with which I thus leave the case is that the test which the Court has used
has precluded it from asking the right questions. In the result, the
principle on which the Judgment is constructed is not adequate to do full
justice to either Party; it creates unnecessary disadvantages for both.
(Signed) Mohamed Shahabuddeen.
[p 842]
SEPARATE OPINION OF JUDGE RANJEVA
[Translation]
I voted in favour of the Judgment for two reasons:
on the legal basis of the proceedings: the solution adopted by the Court
is the only possible one. It was necessary and sufficient that one of the
grounds relied upon by the Respondent in its preliminary objection should be
dismissed to ensure that the jurisdiction of the Court was founded.
on the structure of the operative paragraph: by adjudicating, in one
single paragraph, on the fate reserved for the claim filed by the
Applicant, the Judgment respects the distinction which must be drawn
between the preliminary objection stricto sensu on the one hand, in other
words, the incidental claim submitted by the Respondent with a view to
having the principal claim set aside and, on the other hand, the grounds set
out in support of the preliminary objection. But the structure adopted for
operative paragraph 55 of the Judgment will facilitate an understanding of
the various decisions which are part of it.
However, the reference to Article X of the 1955 Treaty (see I below) can be
criticized owing to the legal problems associated with a danger of possible
confusion in interpreting the Judgment in relation to the Court's title of
jurisdiction (II); owing also to the actual relations between pre-liminary
objections and the merits (III); and owing to the question of prejudging the
issue in an interlocutory judgment (IV).
I. Reference to Article X of the 1955 Treaty
The reader may be somewhat confused by the operative paragraph of the
Judgment. For both the operative paragraph and the structure of the
reasoning can be interpreted as founding the jurisdiction of the Court on
the provisions of Article X, paragraph 1, of the 1955 Treaty, taken in
isolation. The Court rejects or accepts the objection on the basis of its
interpretation of Articles I, IV and X relied on. In quite rightly raising
the question whether the dispute before the Court fell within the
provisions of the compromissory clause, did the Court not go beyond the
subject-matter stricto sensu of the incidental proceedings? This question
raises the problem of the Court's actual title of jurisdiction. [p 843]
II. The Court's Title of Jurisdiction
In this case, the Court's title of jurisdiction is the compromissory clause,
whose terms present no problems of interpretation. Ratione materiae, the
compromissory clause refers expressis verbis to disputes whose
subject-matter is "the interpretation of the application" of the 1955
Treaty. The Court was therefore quite justified in not accepting the
concepts of a reasonable link, a condition which the Respondent sought to
argue. The case-law on this subject is consistent.
However, by questioning whether the dispute submitted to it fell within the
provisions of the compromissory clause, the Court transposed the method it
followed in the case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia). Yet did it not go beyond the subject-matter of the
preliminary objection proceedings, by raising the problem of the distinction
between questions falling within the consideration of the merits of the
claim and questions which needed to be resolved at the present stage of the
proceedings?
III. Objections Regarding Jurisdiction and Matters of Substance
As a rule, it is the scope and purpose of preliminary objections that are
considered, not their intrinsic definition, for it is not easy to
distinguish between these preliminary matters and those relating to the
merits when a specific case is concerned. What counts is not to engage in
theorizing but to display sound practical sense: to settle the problems
regarding jurisdiction and to ensure that the defences on the merits of the
parties in contention are not adversely affected. A comparison between this
Judgment and the one in the case concerning Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia) raises the question of the scope of the analysis
of the legal grounds derived from the Treaty Articles which the Applicant
claims have been breached. Indeed, there would appear to be differences
which need to be considered even though the situations of law and of fact
are neither identical nor transposable.
With all due respect to the Court, it must be observed that it has wrongly
applied the decision in the genocide case. The difference between the two
cases resides in the fact that, in the present one, the compromissory
clause defined ratione materiae the jurisdiction of the Court: a dispute
relating to the interpretation or application of the Treaty. In the case
concerning Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), the objection
regarding jurisdiction ratione materiae related to the applicability of the
Convention to a particular type of act: genocide committed by a State. The
applicability of the compromissory clause was thus rendered subordinate by
the reply to a preliminary question con-[p 844]cerning the scope of
application of the 1948 Convention. In our case, although the necessary
condition was met, it nevertheless seemed inadequate in the eyes of the
Court.
That the Parties put forward conflicting propositions is not in itself
sufficient to establish the existence of a dispute; the Court must not limit
itself to a passive interpretation of its judicial function, contenting
itself with taking note of the divergence of views as such. It must
establish the plausibility of each of them in relation to the benchmark
provisions which are the text of the Treaty and its Articles. The Court's
task was to verify and establish which of the arguments seemed admissible.
In other words, it is not a matter, at the preliminary objections stage, of
stating that the propositions are true or false from the legal standpoint,
but of analysing them to ensure there is nothing absurd about them, or
nothing contrary to the legal norm of positive law. The requirements of
logic and the need for realism associated with the juridical and judicial
interpretation suggest that, when the elements of fact and of law are
considered under the terms of paragraphs 2, 5 and 6 of Article 79 of the
Rules of Court, the propositions should be classified according to their
degree of probability or possibility. But owing to the consensual nature of
the basis of the Court's jurisdiction, it imposes a particular constraint
upon its own action: between the possible and the probable, it must opt for
the latter; the subjective aspect of the idea of possibility confers a
lesser degree of assent upon this modality as compared with the modality of
probability. This requirement is de rigueur: where the jurisdiction of the
Court is concerned, the rule of the strict interpretation of consent is
unbending.
Yet this is not to say that the implementation of these principles is easy.
The equipollent quality of the respective arguments of the Parties provides
the Court with only very limited scope for ascertaining whether the
arguments have been met. The difficulty resides in the fact that, in
incidental proceedings relating to the raising of a preliminary objection
and despite the flexibility characterizing the provisions of Article 79 of
the Rules of Court, the Respondent has no interest in the case being judged
on the merits or even simply discussed prior to the delivery of a decision
on jurisdiction. The foregoing means that due consideration must be given to
the idea that the legal settlement of disputes, just like the exercise by
the Court of its jurisdiction, are exceptional. The idea of lack of
jurisdiction would, in a way, seem to be previous to the idea of
jurisdiction. As has been pointed out many times, legal settlement is no
more than a substitute for diplomatic settlement, so that the argument of
lack of jurisdiction in principle would be the confirmation of the true
place which the judicial institution is recognized to possess. But by making
itself regard as suspect the propositions serving as the basis for invoking
its jurisdiction, the Court, at the preliminary proceedings stage, weighs up
these arguments, jettisoning, in the sphere of the possible, what has not
been proved and retaining only the framework of the probable within which
the judicial body is circumscribed. By acting thus, the Court is per-[p
845]forming its jurisdictional function to the full as well as ensuring that
there is full and effective consent to its jurisdiction.
Unless the objection relates to the competence de la competence, as in the
genocide case, or is an objection of a general nature like the one raised in
the present case, the conclusion the Court may reach is limited to an
affirmative or negative response to the objection at the risk of prejudging
the case. In 1972, the possibility of an objection without an exclusively
preliminary character was construed restrictively, not to say in a highly
exceptional manner.
IV. Prejudging the Issue in the Present Case
In the present case, the upshot of the application of these methodological
principles was that the issue was prejudged in a manner likely to jeopardize
the ensuing proceedings when the Judgment proceeded to consider the
Articles of the 1955 Treaty of Amity, Economic Relations and Consular
Rights. Article I was interpreted to the detriment of the exegesis. The
solution of continuity embodied by the formalization, in Article I, of the
obligations of friendship and peace, was not adequately evaluated at its
true worth. On the contrary, the Court favoured a reference to the ideas
which the practices of States have of the object of treaties of friendship,
commerce and navigation. While Iran's maximalist interpretation cannot be
accepted, it is nevertheless hard to find in it nothing but exhor-tatory
principles, whereas the exceptional innovation of the 1955 Treaty resides
precisely in the transfer of these concepts of peace and friendship from the
domain of preambles to the corpus of the rules of positive treaty law. While
for psycho-political reasons the idea of a positive obligation of peace or
friendship may seem irrelevant, the idea of commerce in the Judgment does
not warrant such a restrictive interpretation of the Treaty's introductory
article, restrictive to the point of not even stating the existence of a
negative obligation of conduct inherent in the requirements of friendship
and peace.
On the other hand, despite the assertion that the purpose of Article I was
to illuminate an understanding of the other Treaty provisions, it is to be
deplored that Article IV should have been interpreted in an analytical
context, that is to say, autonomously. In fact, prima facie, the treatment
referred to in the Article concerned contemplates that of aliens in the
classical context of international law, in other words, the conditions
governing the enjoyment of rights by aliens. But the combined effects of
excluding any territorial reference and of the provisions of Article I raise
the problem of the validity of the interpretation adopted by the Judgment of
the concept of treatment. It is beyond doubt that, in itself, the idea of
treatment frequently refers to essentially formal considerations ; they
relate to the formalization, in legislative or regulatory acts, of the
manner in which a State performs its obligations to its partner with respect
to the latter's nationals and enterprises. Yet is one wholly justified [p
846] in deeming that Article IV excluded from the scope of its application
the actual, intentional conduct of the contracting parties with respect to
enterprises under the authority of the other party? Among other meanings in
common parlance, treatment denotes an attack on and the destruction of a
military objective (Dictionnaire Robert, for example). Moreover, in making
a negative determination on whether the actions involving the destruction of
the oil platforms were covered by Article IV, the Judgment excludes the
applicability of this provision to types of conduct consisting in treating
an enterprise as a hostage within an overall context of hostile relations
between the parties to the 1955 Convention. Only a consideration of the
merits of the case can provide a reply to this.
Lastly, since Article X, paragraph I, was adopted as the basis of the
jurisdiction of the Court and owing to the provisions of Article 80 of the
Rules of Court relating to counter-claims, a question arises regarding all
the rights of the United States of America: how can the link of connexity be
established between freedom of commerce and navigation and a possible claim
for reparations for the destruction of warships?
These considerations linked to requirements of judicial prudence lay down
the limitations of the subject-matter of the preliminary proceedings with a
view to avoiding any risk of prejudging the issue. There must be a clear and
definite break between the subject-matter of the preliminary objection under
Article 79 of the Rules of Court and what is termed the basis of
jurisdiction. The objection relates only to the jurisdiction of the Court or
to admissibility, whereas what is designated as the basis of jurisdiction
covers the arguments set forth in support of the claim. This being so, the
interpretation of the "bases of jurisdiction" does not affect the rights of
the parties if it is limited to meeting arguments on the sole ground of the
plausibility of the theses contended in relation to the problems inherent
in the terms of the provisions, whose violation is relied upon by the
claimant. The reference to Article X of the Treaty in the second paragraph
of the operative part of the Treaty therefore appears to merit criticism.
(Signed) Raymond Ranjeva.
[p 847]
SEPARATE OPINION OF JUDGE HIGGINS
1. In this jurisdictional phase the Court has had to decide whether the 1955
Treaty of Amity, Economic Relations and Consular Rights between Iran and the
United States affords a basis of jurisdiction in respect of any of the
claims advanced by Iran.
2. But there are also important questions relating to the methodology for
determining whether a particular claim falls within the compromissory clause
of a specific treaty. Some of these questions were clearly of concern to the
Parties in this case. I have thought it useful briefly to address this
issue, not least because of a marked uncertainty in the practice of the
Court.
3. Article XXI (2) of the 1955 Treaty provides (in phraseology identical
to, or closely approximating, comparable clauses in many other treaties,
multilateral and bilateral) that:
"Any dispute between the High Contracting Parties as to the interpretation
or application of the present Treaty, not satisfactorily adjusted by
diplomacy, shall be submitted to the International Court of Justice ..."
In certain other treaties the phrase "interpretation or application" appears
in the reverse order, as "application or interpretation". Either way, the
phrase contains two distinct elements which may form the subject-matter of a
reference to the Court. All too frequently, they are treated compendiously.
4. Where the jurisdiction of the Court is contested, the "application" of a
treaty can manifestly form one or more of the grounds of objection. There
are a multitude of reasons why, in the face of claims advanced, a treaty may
be contended not to apply. It may be said to have been ter-minated (Arts.
54-60, Vienna Convention on the Law of Treaties); or to be invalid (Arts.
46-53); or to have lost legal significance because of the effect of a later
treaty on the same subject-matter (Art. 30); or to be nonretroactive in its
application (Art. 28); or inapplicable by reference to its territorial scope
(Art. 29); or subject to a relevant reservation (Art. 21). A treaty may also
be claimed to be inapplicable ratione temporis (see Corfu Channel case,
Merits, Judgment, I.C.J. Reports 1949, p. 22); or not to be in force between
both parties (see the Asylum case, Judgment, I.C.J. Reports 1950, pp.
276-277; and the case concerning Constitution of the [p 848] Maritime Safety
Committee of the Inter-Governmental Maritime Consultative Organization,
Advisory Opinion, I.C.J. Reports I960, p. 171).
5. There occurs rather more infrequently a preliminary objection whereby one
party contends that a treaty claimed by the other party to found the
jurisdiction of the Court is non-applicable ratione materiae. Study of such
relevant jurisprudence as exists on this point is instructive.
6. There are a series of cases which should properly be referred to, but
which are really marginal to the issue. The Factory at Chorzow case
(Judgment No. 8, 1927, P.C.I.J., Series A, No. 9), the Asylum case (I.C.J.
Reports 1950, p. 266), the Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania case (I.C.J. Reports 1950, p. 65), the Haya de la Torre
case (I.C.J. Reports 1951, p. 71), the Anglo-Iranian Oil Co. case (I.C.J.
Reports 1952, p. 93), the Northern Cameroons case (I.C.J. Reports 1963, p.
15), the Barcelona Traction, Light and Power Company, Limited case (I.C.J.
Reports 1964, p. 6) and Certain Phosphate Lands in Nauru case (/. C.J.
Reports 1992, p. 240) are among those where a treaty has fallen for
interpretation in a jurisdictional context, but without raising any point
directly relevant to the application of a treaty as it arises in the present
case.
7. In the United States Diplomatic and Consular Staff in Tehran case (I.C.J.
Reports 1980, p. 3) Iran filed no pleadings. In the various communications
it nonetheless sent to the Court, it did not contest the "application" of
the Vienna Convention on Diplomatic Relations and the 1955 Treaty of Amity,
Economic Relations and Consular Rights in the juridical sense of that term.
Rather, it said:
"the problem ... is thus not one of the interpretation and the application
of the treaties upon which the American Application is based, but results
from an overall situation containing much more fundamental and more complex
elements" (ibid., p. 19).
8. In the case concerning Applicability of the Obligation to Arbitrate under
Section 21 of the United Nations Headquarters Agreement of 26 June 1947
(I.C.J. Reports 1988, p. 12) the Court was called upon to decide whether
there existed between the United States and the United Nations a dispute
concerning the interpretation or application of the Headquarters Agreement
which should be referred to arbitration as envisaged in Section 21 (c) of
that instrument. Although the Court stated that "the request for an opinion
concerns solely the applicability to the alleged dispute of the arbitration
procedure provided for by the Headquarters Agreement" (ibid., p. 26), the
Court focused above all upon whether there was a dispute and upon all the
legal elements relating to that question. It stated that it "sees no reason
not to find that a dispute exists between the United Nations and the United
States concerning the [p 849] 'interpretation or application' of the
Headquarters Agreement" (I.C.J. Reports 1988, p. 32). Judge Schwebel
pertinently noted that the dispute was probably only a dispute as to the
application of the arbitration provisions, and not a dispute about
interpretation of the Agreement (ibid., p. 43).
9. Other cases are more directly relevant for the purpose of addressing the
methodological problems at the heart of the present case. They reveal a
struggle between the idea that it is enough for the Court to find
provisionally that the case for jurisdiction has been made, and the
alternative view that the Court must have grounds sufficient to determine
definitively at the jurisdictional phase that it has jurisdiction.
10. In the case concerning Nationality Decrees Issued in Tunis and Morocco
(Advisory Opinion, 1923, P.C.I. J, Series B, No. 4) an objection was made
to the jurisdiction of the Court. The Court found that it would be necessary
for it to reach a provisional conclusion as to the asserted bases of
jurisdiction.
11. In the Mavrommatis case (Mavrommatis Palestine Concessions, Judgment No.
2, 1924, P.C.I.J., Series A, No. 2), it was necessary for the Court to
assure itself that the dispute fell within the requirements of Article 26 of
the Mandate, that is, that it related "to the interpretation or the
application of the provisions of the Mandate". The Court on this occasion
stated that it "cannot content itself with the provisional conclusion that
the dispute falls or not within the terms of the Mandate" (ibid., p. 16). It
distinguished the case concerning Nationality Decrees Issued in Tunis and
Morocco on the grounds that in an advisory opinion the principle of the
consent of States to the submission of disputes was not in issue. The Greek
Government had alleged violations of Article 11 of the Mandate. The
Permanent Court declared that "The question to be solved is whether the
dispute above mentioned should be dealt with on the basis of this clause"
(ibid., p. 17). The technique employed by the Permanent Court was to enter
into a very substantive and detailed analysis of the claims under the
various concessions, by reference to the first paragraph of Article 11. The
analysis was anything but "provisional". Nor was there any suggestion that
the Permanent Court thought its task was to see if Greece had made
"plausible arguments" or suggested a "reasonable link" between the claims
and those provisions. The Permanent Court said it was "constrained at once
to ascertain whether . . . any breach of [the obligations in Article 11]
would involve a breach of the provisions of this article" (ibid., p. 23). It
correctly pointed out that that was not to prejudge the merits, for only
upon the merits would it be possible to know whether the obligations truly
had been violated.
12. On that basis the Permanent Court upheld the British preliminary
objection in so far as it related to the claim regarding works at Jaffa and
dismissed it in so far as it related to the claim regarding works at
Jeru-[p 850]salem. The Jerusalem part of the claim could proceed to a
judgment on the merits.
13. In Certain German Interests in Polish Upper Silesia (Jurisdiction,
Judgment No. 6, 1925, P.C.I.J., Series A, No. 6) various preliminary
objections were advanced by Poland, one of which contended that the Court
had no jurisdiction because the dispute was not one contemplated under
Article 23 of the Convention of Geneva, on which the Court's jurisdiction
was claimed by Germany to be founded. Observing that the Court's
jurisdiction could not be based on the contentions of either Party as to
Article 23, the Permanent Court acknowledged that it must decide that matter
for itself, at the outset. The Permanent Court acknowledged that it was
important not to intrude upon the merits, but continued:
"On the other hand, however, the Court cannot on this ground alone declare
itself incompetent; for, were it to do so, it would become possible for a
Party to make an objection to the jurisdiction which could not be dealt
with without recourse to arguments taken from the merits have the effect
of precluding further proceedings simply by raising it in limine litis; this
would be quite inadmissible. (Ibid., p. 15.)
The Court concluded that it had to proceed to determine if Article 23
applied "even if this enquiry involves touching upon subjects belong to the
merits of the case" (ibid).
14. The Mavrommatis case, in which issues of direct pertinence for the
present case were canvassed both directly and deeply, remains of seminal
importance. The correct way to approach these difficult matters, there so
clearly addressed, appears to have been put in some doubt some 29 years
later by another case between Greece and the United Kingdom. The Ambatielos
case received the detailed attention of both Iran and the United States in
the present case. The comparable issue that is, whether a claim was indeed
"based on" a treaty (the Treaty of Commerce and Navigation of 1986) was this
time dealt with in a Judgment on the merits, the Court in its Judgment on
jurisdiction the year before having found that it had jurisdiction to decide
whether the United Kingdom was under an obligation to submit to arbitration
in accordance with the Declaration annexed to the Treaty of Commerce and
Navigation of 16 July 1926 between Great Britain and Greece. It had found
that it had jurisdiction to determine this question "in so far as that
claim was based on the Treaty of Commerce and Navigation of November 10th,
1886" (I.C.J. Reports 1953, p. 12). And that matter now fell for
determination in the Court's Judgment of 1953.
15. Greece suggested that a modest link between the subject-matter of [p
851] the dispute and the Treaty of Commerce would suffice: it was said that
the claim "does not prima facie appear to be unconnected with those
provisions" (I.C.J. Reports 1953, p. 12). The United Kingdom thought that
this was the wrong jurisdictional test and that even had it been right the
claim was "obviously unrelated" (ibid., p. 13). The United Kingdom further
contended that "even if all the facts alleged by the Hellenic Government
were true, no violation of the Treaty would have occurred" (ibid.).
16. The Court departed from the approach so clearly set out in the
Mavrommatis case, stating that in dealing with the words "in so far as this
claim is based on the Treaty of 1866" did "not mean that the Ambatielos
claim must be found by the Court to be validly based on the Treaty of 1886"
(ibid, p. 16). Rather, its task was to determine whether:
"the arguments advanced by the Hellenic Government in respect of the treaty
provisions on which the Ambatielos claim is said to be based, are of a
sufficiently plausible character to warrant a conclusion that the claim is
based on the Treaty. It is not enough for the claimant Government to
establish a remote connection between the facts of the claim and the Treaty
of 1886. On the other hand, it is not necessary for that Government to show,
for present purposes, that an alleged treaty violation has an unassailable
legal basis ... If the interpretation given by the Hellenic Government to
any of the provisions relied upon appears to be one of the possible
interpretations that may be placed upon it, though not necessarily the
correct one, then the Ambatielos claim must be considered, for the purposes
of the present proceedings, to be a claim based on the Treaty of 1886."
(Ibid., p. 18.)
17. This passage was much examined in the present case. It manifestly marks
both a different standard and a different methodology from that employed in
the Mavrommatis case. The Court sought to explain this by stating that this
case was "quite unlike the case of Mavrommatis Pales-tine Concessions"
(ibid., p. 14), because in the Ambatielos case the Court could not itself
decide on the merits of the claim, that matter reserved to another tribunal.
Its only duty was to see whether the dispute should be referred to that
tribunal.
18. Some may wonder at the distinction being made, noting that the
International Court must just as much avoid passing upon on the merits in
the jurisdictional phase of a case where the merits (if proceeded to) it
will itself later have to address. And in the Appeal Relating to the
Jurisdiction of the ICAO Council case the Court was later to find that the
analysis of the compromissory clause would necessarily be the same, whether
the substantive competence was its own or ICAO's (I.C.J. [p 852] Reports
1972, p. 61). In any event, whether or not one shares the perception that
the Ambatielos case was "quite unlike" the Mavrommatis case, in the present
case there is no question of the merits of the case being decided by any
tribunal other than the Court itself. The Mavrommatis model remains the more
compelling.
19. In the Interhandel case (1959) the Court had to decide whether it had
jurisdiction over the Swiss claims in the light of the United States
objection that the issues raised in the Swiss Application and Memorial were
matters within the domestic jurisdiction of the United States. The Swiss
Government, in responding to this objection, invoked the Washington Accord
between the two Parties. The Court stated that it would:
"confine itself to considering whether the grounds invoked by the Swiss
Government are such as to justify the provisional conclusion that they may
be of relevance in this case and, if so, whether questions relating to the
validity and interpretation of those grounds are questions of international
law" (I. C.J. Reports 1959, p. 24; emphasis added).
The approach of the Court as to the application of the Washington Accord was
to see, as a "provisional conclusion", whether it might be "relevant to this
case", i.e. apply to the claims advanced. But no further attention was
directed to the matter.
20. The case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), in both its
jurisdictional phase and in the Judgment for the merits, has important
implications for this case, as both Parties have stressed. Nicaragua's claim
was based on certain military activities in Nicaragua and the waters off its
coast, responsibility for which it attributed to the United States of
America (I.C.J. Reports 1984, p. 428). While the main basis for
jurisdiction was predicated on Article 36 (2) of the Statute, Nicaragua
offered as a subsidiary basis of jurisdiction the 1956 Treaty of Friendship,
Commerce and Navigation between itself and the United States. The terms of
Article XXIV (2), the compromissory clause, are exactly the same as those in
Article XXI of the Iran-United States Treaty of 1955. Nicaragua in its
Memorial alleged violations of Articles XIX, XIV, XVII, XX and I of the
Treaty, though virtually no further reference was made to these heads of the
subsidiary claim in the oral argument (see ibid., Judge Oda, separate
opinion, p. 472).
21. The Court decided, by 14 votes to 2, that it had jurisdiction under
Article XXIV. In so doing it referred to the generality of the articles
invoked "particularly the provision in, inter alia, Article XIX". It
continued that, taking these factors into account [p 853]
"there can be no doubt that, in the circumstances in which Nicaragua
brought its Application to the Court, and on the basis of the facts there
asserted, there is a dispute between the Parties, inter alia, as to the
'interpretation and application' of the Treaty" {I.C.J. Reports 1984, p.
428, para. 83).
22. The Court appears on this occasion, as before, to have made a definitive
finding by reference to the various articles of the 1956 Treaty, especially
Article XIX, but this time without legal reasoning being proffered for its
findings. The separate and dissenting opinions generally do not elucidate
further the matter of legal reasoning. Of those who mention the matter at
all, Judge Singh limited himself to observing that the FCN Treaty was in
fact the best basis of jurisdiction. Judge Oda clearly felt the matter had
received insufficient attention by bar and bench. In Judge Ago's view, the
jurisdictional requirement was met by the very recitation of claims alleging
violations of specific articles. The necessary implication is that there was
no further task for the Court itself to perform at the jurisdictional phase.
Judge Sir Robert Jennings approved the FCN Treaty as a basis of
jurisdiction, and treated compendiously the concepts of seeing that a clause
"covers" alleged acts and making good the allegations relating to them.
Both "must await the proceedings on the merits" (ibid., p. 556).
23. Judge Schwebel, by contrast, clearly was of the view that a link between
the claims and the treaty must be offered by Nicaragua, and determinatively
resolved by the Court, at the phase of jurisdiction. He engaged in that task
himself in relation to each of the articles invoked and concluded "[I]t is
plain that the Treaty itself cannot plausibly be interpreted to afford the
Court jurisdiction" (ibid., p. 637). It would appear that Judge Schwebel
believed the correct test to be the relative modest one of "plausible
interpretation" (ibid.) and that it was for the Court to resolve the
jurisdictional matter on that basis at the outset.
24. The Court, however, was to leave its substantive analysis of the clauses
of the Treaty, claimed to found a subsidiary basis of jurisdiction, until
the merits.
25. In the recent Application of the Convention on the Prevention and
Punishment of the Crime of Genocide case, the Court returned to a rather
more traditional approach to these matters. Bosnia and Herzogovina invoked
Article IX of the Genocide Convention as the jurisdictional basis for the
claims it brought against the Federal Republic of Yugoslavia. Yugoslavia
claimed that the dispute did not fall within the compromis-sory clause of
the Genocide Convention, which gave the Court jurisdiction over "disputes .
. . relating to the interpretation, application or fulfilment of the
present Convention" (Application of the Convention on the [p 854] Prevention
and Punishment of the Crime of Genocide, Judgment, I.C.J. Reports 1996, p.
614, para. 27). It was not suggested by Yugoslavia that as the United
States has suggested in the present case the claim had nothing to do with
the subject-matter of the Treaty. But it did claim that Article IX envisaged
an international dispute, which it saw as being absent, and that,
furthermore, the responsibility of a State for its own actions falls outside
of the subject-matter jurisdiction of Article IX.
26. It is true that the question of "sufficiency of subject-matter
connection" was not an issue. Nor did the manner in which the Court should
approach its task receive special attention from the Parties or the Court.
At the same time the Court simply pronounced with finality on the
objec-tions ratione materiae advanced by the Federal Republic of Yugoslavia
under Article IX. There was no suggestion from the Court that it thought it
sufficed for Yugoslavia to advance a "possible interpretation" (Ambat-ielos)
or that it was reaching a "provisional conclusion" (Interhandel).
***
27. The present case has put into sharp focus a range of related but
discrete issues that must be addressed. When the Court faces a preliminary
objection to its jurisdiction on the grounds that the invoked treaty "does
not cover" the claims, or concludes that the claims "do not fall under" or
"do not fall to be determined by reference to" the Treaty, three questions
arise. First, what is the test by which the Court is to make its finding?
Second, is the Court's finding on this issue at the jurisdictional stage
provisional or final? Third, in what way is the answer dictated by the
necessity of the Court avoiding entering into the merits at the
jurisdictional phase?
28. It is not an easy task to see a clear or constant line of jurisprudence
on these matters, but certain answers suggest themselves. In formulating
them, it is to be borne in mind that:
"Neither the Statute nor the Rules of Court contain any rule regarding the
procedure to be followed in the event of an objection being taken in limine
litis to the Court's jurisdiction. The Court therefore is at liberty to
adopt the principle which it considers best calculated to ensure the
administration of justice, most suited to procedure before an international
tribunal and most in conformity with the fundamental principles of
international law." (Mavrommatis Palestine Concessions, Judgment No. 2,
1924, P.C.I. J, Series A, No. 2, p. 16.) [p 855]
29. The necessary interpretative analysis in the Mavrommatis case fell to be
made within the framework of Article 11 of the Mandate. But it cannot be
doubted that had Greece suggested that the British Government had violated
other articles of the Mandate, the Permanent Court would have gone through
the same exercises of interpretation with regard to those articles, too. It
is true, of course, that the Court must found its jurisdiction on the
compromissory clause, Article XXI of the 1955 Treaty. But that cannot be
done on an impressionistic basis. The Court can only determine whether there
is a dispute regarding the interpretation and application of the 1955
Treaty, falling within Article XXI (2), by interpreting the articles which
are said by Iran to have been violated by the United States destruction of
the oil platforms. It must bring a detailed analysis to bear.
30. Nor does it suffice to say that there is manifestly a dispute about the
application, and indeed the interpretation of the Treaty and that ergo
there exists jurisdiction under Article XXI. It was suggested to the Court
by Iran that it was enough for there to be differences between the two sides
as to the application of the Treaty (CR96/15, p. 31). But one must ask the
question: enough for what? It is, of course, enough for the Court to have to
exercise its competence de la competence, as it is now doing. But it is not
necessarily enough in the sense of it being a pass-key for the case to
proceed to the merits. The Court has first to decide if the claims fall
under the 1955 Treaty in other words, that the Treaty applies. In the
present case, where jurisdiction is disputed, and there is a dispute about
"the interpretation or application" of a treaty, "application" falls for
determination at the jurisdictional phase.
31. Where the Court has to decide, on the basis of a treaty whose
application and interpretation is contested, whether it has jurisdiction,
that decision must be definitive. (It is uncertain whether cases where the
merits fall to be determined by another tribunal may perhaps be an exception
to this general provision notwithstanding that the rationale, when closely
examined, is debatable.) It does not suffice, in the making of this
definitive decision, for the Court to decide that it has heard claims
relating to the various articles that are "arguable questions" or that are
"bona fide questions of interpretation" (each being suggestions advanced in
this case). This is so notwithstanding that the Interhandel case (with its
passing reference to a "provisional conclusion") and the Military and
Paramilitary Activities in and against Nicaragua case do not fit easily into
this approach. The treatment of the issue in the latter case contained so
many remarkable elements and so many diverse views that it cannot be seen as
a clear decision by the Court to move away from the approach so powerfully
established in the Mavrommatis case. Nor, in my view, is the answer to be
found in the establishment of a "reasonable connection" [p 856] between the
claims and the Treaty that is a necessary but not sufficient condition.
32. There has been some suggestion that "plausibility" provides another test
for determination of whether the Court has jurisdiction. It was said in the
Ambatielos case that the Court must determine whether the arguments of the
applicant State
"in respect of the treaty provisions on which the Ambatielos claim is said
to be based, are of a sufficiently plausible character to warrant a
conclusion that the claim is based on a Treaty" (I.C.J. Reports 1953, p. 18;
emphasis added).
"Plausibility" was not the test to warrant a conclusion that the claim might
be based on the Treaty. The only way in which, in the present case, it can
be determined whether the claims of Iran are sufficiently plausibly based
upon the 1955 Treaty is to accept pro tern the facts as alleged by Iran to
be true and in that light to interpret Articles I, IV and X for
jurisdictional purposes that is to say, to see if on the basis of Iran's
claims of fact there could occur a violation of one or more of them.
33. In the Ambatielos case (1953), the Court rejected the United Kingdom
claim that the Court should provisionally accept the facts as asserted by
the applicant and see if they would constitute a violation of the Treaty
said to provide the Court with jurisdiction. The Court did this for two
reasons: first, to find that the facts would constitute a violation was to
step into the merits; and second, the merits in this case had been reserved
to a different body, the Commission of Arbitration established under the
Protocol of 1886. This constraint does not operate in the present case. It
is interesting to note that in the Mavrommatis case the Permanent Court said
it was necessary, to establish its jurisdiction, to see if the Greek claims
"would" involve a breach of the provisions of the article. This would seem
to go too far. Only at the merits, after deployment of evidence, and
possible defences, may "could" be converted to "would". The Court should
thus see if, on the facts as alleged by Iran, the United States actions
complained of might violate the Treaty articles.
34. Nothing in this approach puts at risk the obligation of the Court to
keep separate the jurisdictional and merits phases (unless it had been
decided that a preliminary objection did not possess an exclusively
preliminary character under Article 29 (2) of the Rules of Procedure) and
to protect the integrity of the proceedings on the merits. Of course any
definitive decision that even on the facts as described by Iran no breach of
a particular article could follow, does "affect the merits" in the sense
that that matter no longer may go to the merits. That is inherent in the
nature of the preliminary jurisdiction of the Court. What is for the merits
[p 857] and which remains pristine and untouched by this approach to the
jurisdictional issue is to determine what exactly the facts are, whether
as finally determined they do sustain a violation of, for example, Article
X; and if so, whether there is a defence to that violation, lying in Article
XX or elsewhere. In short, it is at the merits that one sees "whether there
really has been a breach" (Mavrommatis Palestine Concessions, Judgment No.
2, 1924, P. C.I. J., Series A, No. 2, p. 23).
35. It is clear from the jurisprudence of the Permanent Court and of the
International Court that there is no rule that requires a restrictive
interpretation of compromissory clauses. But equally, there is no evidence
that the various exercises of jurisdiction by the two Courts really indicate
a jurisdictional presumption in favour of the plaintiff. (I make no
reference in these observations as to the jurisdictional standards
applicable for establishing a competence sufficient for the ordering of
provisional measures.) The Court has no judicial policy of being either
liberal or strict in deciding the scope of compromissory clauses: they are
judicial decisions like any other.
36. A final point on judicial methodology: in its Judgment the Court has
accepted certain of the preliminary objections, and rejected others. This is
not without precedent, as shown by the different treatment that was accorded
in the Mavrommatis case to the preliminary objections as they related to the
Jaffa and the Palestine Concessions. The Court may properly determine that
it has jurisdiction in respect of certain claims but not in respect of
others. (This approach to settling one's own jurisdiction is, incidentally,
very familiar to human rights tribunals, which often are faced with claims
of violations of a variety of treaty provisions, but decide that, for
jurisdictional reasons, the applicant may only proceed to the merits in
respect of one or more of them.) Selection of grounds of claim that may
proceed to the merits is a proper exercise of the com-petence de la
competence.
***
37. It is these methodological considerations that have fashioned my
approach to the substantive consideration of Articles I, IV and X of the
1955 Treaty in the light of the United States preliminary objection. It is
necessary to decide definitively whether any of them afford a basis of
jurisdiction; and the legal threshold in this regard is exactly as it would
be with any other decision. [p 858]
38. The Court was informed by Iran that the destroyed platforms were in
active commercial use, save for Platform 7 in the Reshadat complex and the
control room at the Salman complex, which were undergoing repairs. The
United States has told the Court that the platforms were being used for
hostile military purposes. The question to be resolved is whether, even
taking pro tern Iran's version of the facts, their destruction could violate
Articles I, IV (1) or X (1).
39. I am essentially in agreement with what the Court has to say on the
application of Articles I and IV (1) of the 1955 Treaty to the facts as
claimed by Iran. In particular, I agree that the use of force is not per se
"outside of the 1955 Treaty: the issue rather is whether the use of force in
issue could in principle cause a violation of the Treaty. I equally agree
that neither Article I nor Article IV (1) provides that potentiality. My
reasons regarding Article I are essentially those offered by the Court. My
reasons regarding Article IV (1) are to an extent different. I believe that
Article IV (1) clearly refers to the obligations of the United States to
Iranian nationals, their property and their enterprises, within the
territory of the United States; and vice versa. This follows from the stated
duty not to impair "their legally acquired rights" the language of foreign
investment protection. It follows equally from reading Article IV (1)
together with the clauses that follow. I further believe that the key terms
"fair and equitable treatment to nationals and companies" and "unreasonable
and discriminatory measures" are legal terms of art well known in the field
of overseas investment protection, which is what is there addressed. And the
well-known meaning given to these terms simply has no common point of
reference with the facts as claimed by Iran.
40. The Court has founded its jurisdiction on Article X (1) which provides
that "Between the territories of the two High Contracting Parties there
shall be freedom of commerce and navigation". In the Oscar Chinn case
(Judgment, 1934, P.C.I.J., Series A/B, No. 63), as in the present case, the
Permanent Court noted that freedom of navigation and freedom of commerce
were indeed separate concepts but, in the context of the rights under
examination in that case, did not need separate examination. Although as
the Court has observed in paragraph 38 of its Judgment no claim has been
made by Iran relating to freedom of navigation, here too the freedom of
commerce provided for in Article X (1) still has to be read in context.
Freedom of commerce in its general sense is exactly what is buttressed by
the provisions of Articles VIII and IX. Read both against [p 859] the
background of these articles, and in the context of the para-graphs that
follow in Article X itself, it does seem to me that the commerce there
referred to is maritime commerce or as in the Oscar Chinn case commerce
integral to, closely associated with, or ancillary to maritime commerce.
41. Were the phrase "freedom of commerce" in paragraph 1 of Article X to
have a meaning entirely distinct from all that follows in Article X, it
would surely either have been located in Articles VIII or IX, or have
merited a separate article to itself. The fact that the 1955 Treaty replaced
the provisional agreement of 1928 (Judgment, para. 41) does not seem to
outweigh these considerations.
42. It is suggested in the Judgment (para. 46) that "the right to . . .
operate businesses" is covered by treaties dealing with trade and commerce.
But any such right is a right given to the nationals of the one party in the
territory of the other. Treaties of trade and commerce do not provide that
party A will allow party B to operate businesses in B's own territory. Such
a provision would be strange indeed.
43. These points apart, there is also the question as to whether petroleum
production platforms (whether engaged in actual production at the relevant
moments or not) are "commerce" within the terms of Article X (1). The Court
has persuasively shown in paragraph 45 of the Judgment that "commerce" is
generally understood as going beyond purchase and sale and including a
multitude of activities ancillary thereto. It is equally true that petroleum
is an important commercial export from Iran to the United States. But yet a
further step is required to show that commerce is generally understood to
include the means of production of that which may, much later in the chain,
form the subject matter of international commerce.
44. No authority is offered by the Court for that "step too far".
45. The quotation from the Judgment of the Permanent Court of International
Justice in the Oscar Chinn case (Judgment, 1934, P. C.I.J., Series A/B, No.
63, p. 84) cited in the Court's present Judgment (para. 48) should not be
taken out of its context. In this case the Court was called upon to decide
if, by virtue of the impact of certain Belgian actions upon Mr. Oscar Chinn,
a British river transporter in the Congo, Belgium had violated its
obligations towards the United Kingdom under the Convention of
Saint-Germain-en-Laye of 1919. Article 1 of that Convention annexed Article
1 of the General Act of Berlin of 26 February 1885 according to which "the
trade of all nations shall enjoy complete freedom". And Article 5 of the
Convention of Saint-Germain-en-Laye provided that the navigation of the
Niger and lakes within the specified [p 860]
territories "shall be entirely free for merchant vessels and for the
transport of goods and passengers". Further, craft of every kind belonging
to the signatory Powers "shall be treated in all respects on a footing of
perfect equality".
46. The Court found that, in the Saint-Germain rιgime, fluvial transport
was a branch of commerce and that freedom of commerce ("commercial
freedom") was expressly contemplated (Oscar Chinn, Judgment, 1934, P.
C.I.J., Series A/B, No. 63, pp. 81 and 83). It was but a short step for the
Permanent Court to find that freedom of trade guaranteed the right to engage
in any commercial activity, including "industry, and in particular the
transport business" (ibid., p. 84).
47. The fluvial transportation industry was an integral part of the trade
envisaged under Article 5 of the Saint-Germain Convention in a way that oil
production is not an integral part of what was envisaged under Article X of
the 1955 Treaty of Amity, Economic Relations and Consular Rights between
Iran and the United States. Moreover, the aggrieved party was a foreigner,
complaining about the actions of the host State. The Oscar Chinn case
cannot, in my view, be relied on as authority for the proposition that the
legality of the destruction of oil platforms falls to be decided by
reference to the treaty obligation of freedom of commerce.
48. Nor is the situation saved, in my view, by the contention that "freedom
of commerce", even if not "commerce" itself, covers that which is produced
and which may perhaps at a later stage be exported, perhaps to the United
States (cf. the present Judgment, para. 50).
49. Were the standard required for deciding any of the above matters mere
"reasonable connection" or "provisional conclusion", then I concede that
this test might well be met. But, for the reasons I have elaborated above,
the Court must have available to it substantive reason to support a
definitive finding.
50. Iran emphasized in its pleadings to the Court that the oil produced in
the Reshadat field passed through a central platform within the complex, in
order to be passed by pipeline to the storage and loading facilities at
Lavan Island. It was also contended that it was from platform A on the Nasr
complex that oil was transported by pipeline to the loading, storage and
export facilities at Sirri Island. If that is so (and these assertions of
fact are not conceded by the United States and until the merits cannot be
adjudicated), then those particular platforms may be regarded as integral to
the transport of oil to tanker loading points (and not just its production).
Iran informed the Court that the United States attacks were directed at the
Reshadat central platform and the Nasr complex A platform. Accordingly,
their destruction might occasion a violation of [p 861] Article X (1). That
transportation (or "carriage of goods") is an essential part of commerce is
well recognized in the leading textbooks on the subject, as well as in the
citations relied on by the Court in paragraphs 45 and 46 of its Judgment.
51. It is on these very limited grounds that I have voted in favour of the
Court's dispositif in this case. They provide a sufficiently substantive
ground for the existence under Article XXI (2) of a dispute between Iran and
the United States concerning the application and interpretation of Article X
(1) of the 1955 Treaty, as it bears on the destruction of the Reshadat and
Nasr complex. I do not believe the Court has any jurisdiction over the
destruction of the Salman complex, where no comparable allegations of fact
were made as to the transportational function of the installations
destroyed.
52. It will be for the United States, upon the merits, to challenge Iran's
allegations of fact as to the technical, operational character of the
particular installations destroyed and to seek to make good its own claims
that they were being put to military use. The United States will also be
able to adduce all defences open to it.
(Signed) Rosalyn Higgins.
[p 862]
SEPARATE OPINION OF JUDGE PARRA-ARANGUREN
1. Notwithstanding my agreement with the operative paragraphs of the
Judgment I consider it necessary to explain that, in my opinion, the Court
also has jurisdiction to entertain the claims made by Iran under Article IV,
paragraph 1, of the Treaty of 1955, which provides:
"Each High Contracting Party shall at all times accord fair and equitable
treatment to nationals and companies of the other High Contracting Party,
and to their property and enterprises; shall refrain from applying
unreasonable or discriminatory measures that would impair their legally
acquired rights and interests; and shall assure that their lawful
contractual rights are afforded effective means of enforcement, in
conformity with the applicable laws."
2. Paragraph 36 of the Judgment, after reproducing the contents of the three
sentences of Article IV, paragraph 1, of the Treaty of 1955, denies the
jurisdiction of the Court in the following terms:
"The whole of these provisions is aimed at the way in which the natural
persons and legal entities in question are, in the exercise of their private
or professional activities, to be treated by the State concerned. In other
words, these detailed provisions concern the treatment by each party of the
nationals and companies of the other party, as well as their property and
enterprises. Such provisions do not cover the actions carried out in this
case by the United States against Iran. Article IV, paragraph 1, thus does
not lay down any norms applicable to this particular case. This Article
cannot therefore form the basis of the Court's jurisdiction." (Emphasis
added.)
3. The actions carried out by the United States in this case were directed
against the offshore oil platforms belonging to the National Iranian Oil
Company, not against Iran, as stated in paragraph 36 of the Judgment; and
the National Iranian Oil Company is a juridical person different from Iran,
even though Iran may own all of its shares. Consequently, as an Iranian
corporation, the National Iranian Oil Company is covered by Article IV,
paragraph 1, of the Treaty of 1955, and shall be accorded "fair and
equitable treatment", and also protected against the application of
"unreasonable or discriminatory measures" that would impair its legally
acquired rights and interests. Therefore, in my opinion, the Court has
jurisdiction to entertain the claims made by Iran under said [p 863]Article
IV, paragraph 1, on the basis of Article XXI, paragraph 2, of the Treaty of
1955.
(Signed) Gonzalo Parra-Aranguren.
[p 864]
SEPARATE OPINION OF JUDGE RIGAUX
[Translation ]
I. Declaration Relating to the Operative Part
I voted with the majority on the two points in the operative part and I did
so without reservation as regards point 1. As far as point 2 is concerned,
I agree with the decision on jurisdiction therein, but regret that it
implicitly limits the jurisdiction of the Court to paragraph 1 of Article X
of the Amity Treaty.
II. Observations Relating to the Grounds
As regards the part of the grounds relating to Article I, I am able to
support the content of paragraphs 27 and 28 and of paragraph 31. The same
cannot be said for paragraphs 29 and 30 which undermine the grounds rather
than reinforce them. Although to have regard to the travaux prιparatoires of
an international instrument in order to shed light on its wording if it
seems ambiguous is in accordance with the case-law of the Court, the same
cannot be said of the absence of any relevant indication in the documents
produced by the Parties. That silence may not be invoked in favour of one
interpretation rather than the opposite interpretation. We are dealing here
in reality with a failure to interpret. It is not surprising that the
documents produced do not offer any useful information : it is rare not only
for contracting parties whether they be to an international treaty or to a
contract in private law to take the trouble to agree on the interpretation
of the clauses which would have most needed clarification, but even for each
of the Parties to have interpreted a provision one way rather than another
when that provision may be interpreted in several ways. It is only when the
rule is to be applied that the question of interpretation is raised on the
occasion of a specific dispute. It is for those reasons that the
interpretation given by the Court to Article I of the Amity Treaty appears
to me to be weakened by paragraph 29 which contains considerations not
referred to in the methods of interpretation provided by the Vienna
Convention on the Law of Treaties of 23 May 1969. The "documents" invoked
by the Parties do not come under the category of "travaux prιparatoires",
they provide no information as to the circumstances in which the instrument
was drafted and adopted. Reference should be made on this point to the
Judgment of 15 February 1995 in the case concerning Maritime Delimitation
and Territorial Questions between Qatar and Bahrain (I.C.J. Reports 1995,
p. 5, especially paras. 41-42, pp. 21-23). See also the enlightening
analysis [p 865]
given by Vice-President Schwebel in his dissenting opinion, pages 28 to 32.
In that case, as in the case concerning the Territorial Dispute (Libyan Arab
Jamahiriya/Chad) (see Judgment, I.C.J. Reports 1994, p. 5, especially para.
55, pp. 27-28), the documents produced by the Parties related to their
negotiations and the hesitations or the second thoughts which had occurred
when the text was adopted. Whatever the interpretative value placed on such
documents, it is altogether different from that of internal documents
produced in one of the States between which the Treaty was concluded and
that is all the more so since it contains a unilateral interpretation
relating to a similar treaty concluded with another State. If the Court
considered that, on this point, it should uphold the reasoning of the
Parties, it should have refused to see any relevance in documents which did
not support either of the two interpretations which form the subject-matter
of the dispute between the Parties.
Paragraph 30 gives rise to objections of a different nature. It is hardly
appropriate to draw conclusions from the absence of a practice in order to
confer one interpretation rather than another on a treaty. The practice
would have been relevant if it had shown that the Parties or one of them had
interpreted Article I the same way as the Court had or, at the very least,
had, if only implicitly, discarded the opposite interpretation. The cases
cited in support of the absence of any practice are not very convincing. In
the case of the United States Diplomatic and Consular Staff in Tehran, the
1955 Amity Treaty only played a subsidiary role and the fact that the
Applicant did not rely on Article I of that Treaty in the case of the Aerial
Incident of 3 July 1988 (Islamic Republic of Iran v. United States of
America) does not deprive it of the right to invoke it for the first time in
the present case. Moreover, in that earlier case the Amity Treaty was not
the only or even the principal ground put forward to justify the Court's
jurisdiction; and furthermore it was invoked for the first time in the
Applicant's Memorial (24 July 1990, pp. 179-184). In its reply to the
objection raised in that regard by the United States (Preliminary Objections
raised by the United States of America, pp. 109-117), Iran stated that it
was "a supplementary basis of jurisdiction" (Observations and Submissions on
the Preliminary Objections, submitted by the Islamic Republic of Iran, Vol.
I, p. 214, para. 6.31).
Without prejudice to the more general considerations which I shall put
forward in the third part of this opinion, the reasons relating to the
interpretation of paragraph 1 of Article IV do not appear to support
adequately the exclusion implicitly conveyed by point 2 of the operative
part and from which I consider that I must dissociate myself. In reality, it
is merely a repetition, using different wording, of the content of the
provision which is presented as the reasons for the interpretation given by
the Court. It is difficult to consider it as having the value of real
reason-ing. I am therefore respectfully obliged to dissociate myself from
such a method of interpretation and from the conclusion set out in the last
sentence of paragraph 36. [p 866]
III. General Considerations on the Method of Reasoning Followed by the Court
The preliminary objection raised in the this case could have been the
Court's opportunity to specify in greater detail the nature and the scope of
the duties it imposed on itself when it amended its Rules of Procedure in
1972, such as those duties arise today under Article 79 of the Rules of
Court.
The three limbs of the choice offered by Article 79, paragraph 7, of the
Rules of Court do not carry the same weight. The amendment made by the Court
to its Rules in 1972 intended to confer a subsidiary scope on the decision
to declare that the objection does not possess an exclusively preliminary
character. The Court has set its own priority in cases when it is seised of
a preliminary objection, that of choosing between upholding or rejecting the
objection. If the objection relates to the very jurisdiction of the Court,
the reasons not to defer the decision are all the more pressing: if it
decides that the objection is not exclusively preliminary, the Court compels
a State to put up a defence on the merits even though the Court has some
doubt as to whether it actually has jurisdiction and may ultimately decline
jurisdiction. There were two supplementary aspects to the streamlining for
which the 1972 reform aimed, to prevent a debate on the merits before the
Court has had the chance to make a ruling as to its jurisdiction, but also
to avoid the parties having to make submissions twice on the question of
jurisdiction. If it rejects the preliminary objection, the Court declares
itself to have jurisdiction and it cannot come back on that decision which
then has the force of res judicata. However, the decision on jurisdiction
should not influence the resolution of the dispute on the merits at all,
one way or the other. The decision, only reached in exceptional cases, which
consists in reality of joining the objection to the merits must be reserved
for cases in which the Court cannot decide the objection without itself
taking a view on the merits.
For the objection to be exclusively preliminary, it must be possible for the
Court to uphold or reject it without expressing any opinion as to the issue
of the dispute on the merits. That is why the case-law of the Court relating
to cases where it made a finding on the jurisdiction of another court is
particularly relevant for the decision it has to take on the preliminary
objection of lack of jurisdiction: even if it is for different reasons, it
must, in one case as in the other, abstain from getting involved in a
judgment on the merits, whether that judgment is removed from its
jurisdiction at the outset or whether it would merely be premature to do so.
It is easy to decide to uphold an objection of lack of jurisdiction when
that objection consists of denying the existence of a jurisdiction clause,
of maintaining that the agreement made between States which contains that
clause is no longer in force, that one of the parties has decided not to
rely on it or that the facts in dispute occurred outside the time period
during which the said clause applied. The decision is harder to reach
without [p 867] getting involved in the merits when, as is the case here,
the Parties do not agree as to the scope of the clause, that is to say as to
whether it applies to the category of facts in which the facts in dispute
here may be classified. Seised of such an objection, the Court must
undoubtedly interpret the treaty provision by which the Parties, by common
accord, conferred jurisdiction upon it. In Article XXI, paragraph 2, of the
Amity Treaty the decisive words are "any question of interpretation or
application" of the present Treaty. In order for it to be able to make a
ruling on any of these questions ("any" question), the Court must have
jurisdiction to do so. Therefore, the question of jurisdiction is
preliminary to any questions of interpretation or application of the other
provisions of the Treaty and if the Court were to rule definitively on any
of that second series of questions, it would be exceeding the actual
subject and the only subject which is immediately within its jurisdiction,
the competence de la competence, and it would be encroaching upon the merits
of the dispute, which would compel it not to find that the objection was
exclusively preliminary. The problem therefore consists of separating the
question of jurisdiction from the questions on the merits, even if it is
necessary in order to reply to the first question to embark to a certain
extent on the interpretation of the other provisions of the Amity Treaty,
inter alia those which have been invoked by the Applicant. When a
preliminary objection consists of denying that the Applicant's complaints
fall within the scope of the provisions of the articles of the treaty which
form the basis of the action (in this case Articles I, IV, paragraph 1, and
X, paragraph 1), it is absolutely necessary to verify whether there is a
sufficient connection between these articles or between one of them and the
claims, for there to be a dispute between the parties as to "a" question of
interpretation or application of the treaty. Rather than deciding that the
relevant criterion is that of a "reasonable connection", which terminology
is unknown in the case-law of the Court, we should ask ourselves what is
meant by a question. What is "a question of interpretation or application"
of one or several articles of a treaty? Faced with a preliminary objection
of lack of jurisdiction, the Court must exercise its duty to interpret
Article XXI, paragraph 1, on that point. It is necessary, in other words,
to decide whether there is a question of interpretation or application of
the Amity Treaty without making a premature ruling on the merits of that
question. In order to decide whether there is a question, we must inevitably
carry out a preliminary examination of the provisions of the treaty whose
interpretation or application form the subject-matter of the dispute
between the Parties. Certainly, if the claims have no connection with any of
the provisions of the Treaty, it is easy to conclude that there is no
question of interpretation or application and to uphold the objection of
lack of jurisdiction. Conversely, it is not sufficient for the Parties to
disagree as to the interpretation of the Treaty for the Court to find that
it has jurisdiction. By analogy, one may apply what both Courts have
asserted on many occasions in relation to a dispute: that it is possible to
decide objectively what is meant by a question as well as by a dispute. More
precisely, there [p 868] will be a question only if there is a dispute, if
the points of interpretation or application of a treaty have given rise to
contrasting positions which are sufficiently documented on both sides, and
raise a doubt sufficient for the Court to be effectively seised of a
question (and, in the present case, of several questions) of interpretation
and application of the Amity Treaty.
In the case-law of the Court and of the Permanent Court there are several
definitions of what is meant by a dispute. The oldest goes back to Judgment
No. 2 of the Permanent Court of International Justice in the Mavrommatis
Palestine Concessions case:
"A dispute is a disagreement on a point of law or fact, a conflict of legal
views or of interests between two persons." (P. C.I. J., Series A, No. 2, p.
11.)
From the case-law of the Court, one may cite the following solutions:
"Whether there exists an international dispute is a matter for objective
determination. The mere denial of the existence of a dispute does not prove
its non-existence." (Interpretation of Peace Treaties with Bulgaria, Hungary
and Romania, First Phase, Advisory Opinion of 30 March 1950, I.C.J. Reports
1950, p. 74.)
The objective criterion outlined by the Court in that Advisory Opinion is
the following:
"There has thus arisen a situation in which the two sides hold clearly
opposite views concerning the question of the performance or non-performance
of certain treaty obligations." (Ibid., p. 74.)
The latter passage is reproduced in the Judgment of 11 July 1996 in the case
concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia)
(para. 29) which also cites the Judgment of 30 June 1995 in the case
concerning East Timor (Portugal v. Australia) (I.C.J. Reports 1995, pp.
99-100, para. 22).
The dispute must also relate to the interpretation or the application of a
treaty. Both the Advisory Opinion of 30 March 1950, which has just been
quoted, and the recent Judgment in the case concerning the Application of
the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia) carefully distinguish that second
question from the preceding one. Therefore, according to paragraph 30 of
the Judgment of 11 July 1996:
"To found its jurisdiction, the Court must, however, still ensure that the
dispute in question does indeed fall within the provisions of Article IX of
the Genocide Convention." (Compare the similar finding in the Judgment in
the case concerning Mavrommatis Palestine Concessions, P.C.I. J., Series A,
No. 2, p. 11.) [p 869]
In the Advisory Opinion of 30 March 1950 the dispute related also to the
duty of certain States to comply with a clause concerning the resolution of
disputes relating to "the interpretation or the performance of treaties" and
the Court observes as follows:
"In particular, certain answers from the Governments accused of violations
of the Peace Treaties make use of arguments which clearly involve an
interpretation of those Treaties." (I.C.J. Reports 1950, p. 75.)
The determination of its own jurisdiction, the only question of which the
Court is seised after having invited the Parties to give their views on the
preliminary objection raised by the Respondent, is therefore reduced to
whether there is a dispute relating to a question of application or
interpretation of the Treaty between the Parties. The competence de la
competence is separate from jurisdiction on the merits, that is to say the
questions of interpretation and application of the Amity Treaty which the
Court should have refrained from deciding. The scission of these two
jurisdictions is clearly provided for in Article 79 of the Rules of Court
and it makes the case-law relating to two series of cases which are strongly
analogous with the present case particularly relevant. The first series of
cases is borrowed from the case-law of the Court itself when it has had to
rule on the jurisdiction of another court. The second type of scission
between the determination of the existence of a question and the
jurisdiction to solve that question appears when those two functions are
divided between two jurisdictional orders.
In the Judgment in Ambatielos, Merits (I.C.J. Reports 1953, p. 10), the
Court found that the Parties were in dispute on the interpretation of one of
the provisions of the Treaty, but that that provision could "lend itself
both to one or the other interpretation without the Court being competent to
decide which of the two interpretations appeared to it to be correct. In the
same Judgment, the Court uses various expressions which it seems to find
synonymous: the arguments put forward by the Greek Government are
"sufficiently plausible"; the interpretation according to which the
Application is based
"appears to be one of the possible interpretations that may be placed upon
it, though not necessarily the correct one . . .
In other words, if it is made to appear that the Hellenic Government is
relying upon an arguable construction of the Treaty, that is to say, a
construction which can be defended, whether or not it ultimately prevails,
then there are reasonable grounds for concluding that its claim is based on
the Treaty." (I.C.J. Reports 1953, p. 18.)
Thus, four expressions seem equivalent: an interpretation "of a
sufficiently plausible character", one of those "that may be placed upon
[that provision]", an "arguable construction" that is to say one "which can
be defended".
The Advisory Opinion of 23 October 1956 on the Judgments of the [p 870]
Administrative Tribunal of the ILO upon Complaints Made against Unesco,
which refers to the Judgment on the merits in the Ambatielos case, and also
relates to the interpretation of an international instrument for the
determination of the jurisdiction of a court other than the Court itself,
uses a flexible form of words, namely "that the complaint should indicate
some genuine relationship between the complaint and the provisions invoked
. ..", "it is necessary to ascertain whether the terms and the provisions
invoked appear to have a substantial and not merely an artificial connexion
with the refusal to renew the contracts" (I.C.J. Reports 1956, p. 89).
There is also established case-law of the Permanent Court of International
Justice on that point. According to Judgment No. 2, cited above:
"The Court, before giving judgment on the merits of the case, will satisfy
itself that the suit before it, in the form in which it has been submitted
and on the basis of the facts hitherto established, falls to be decided by
application of the clauses of the mandate." (P. C.I. J, Series A, No. 2, p.
16.)
In the cases most similar to the present one, where the Court has ruled on a
preliminary objection relating to its own jurisdiction, it has never
explained the grounds on which it found that it had jurisdiction, whilst
abstaining from prematurely deciding the questions of interpretation on
which it was to exercise its jurisdiction at the appropriate time.
According to the Judgment of 26 November 1984 relating to the case
concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility,
the Court dismissed the objection of lack of jurisdiction by seemingly being
satisfied that "on the basis of the facts . . . asserted" in Nicaragua's
Application "there is a dispute between the Parties, inter alia, as to the
'interpretation or application' of the Treaty" (I.C.J. Reports 1984, p. 428,
para. 83). See also the conclusion of that paragraph, page 429. In that
Judgment, the Court justified its jurisdiction by viewing the Amity Treaty
as a whole without, a priori, excluding any of its provisions. Paragraph 82
of the Judgment (p. 428) contains a summary analysis of five Articles of the
Amity Treaty which the Applicant relied upon in its Memorial without the
Court going further into the respective merits of those various provisions
in order to reach a decision regarding the preliminary objection. It is
regrettable that in the present case and for the first time, it would seem,
the opinion of the majority diverged from that method. In its Judgment of 11
July 1996 concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia)
the course taken by the Court seems to be inspired by the one it followed in
the Judgment of 26 November 1984, although that latter Judgment is not
cited. In order to reject the fifth preliminary objection raised by
Yugoslavia, the Court
"observe[s] that it is sufficiently apparent from the very terms of that [p
871]objection that the Parties not only differ with respect to the facts of
the case, their imputability and the applicability to them of the
provisions of the Genocide Convention, but are moreover in disagreement
with respect to the meaning and legal scope of several of those provisions,
including Article IX. For the Court, there is accordingly no doubt that
there exists a dispute between them relating to 'the interpretation,
application or fulfilment of the . . . Convention, including . . . the
responsibility of a State for genocide . . .', accord-ing to the form of
words employed by that latter provision (cf. Applicability of the Obligation
to Arbitrate under Section 21 of the United Nations Headquarters Agreement
of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, pp. 27-32)." {I.C.J.
Reports 1996, pp. 616-617, para. 33.)
The Judgment of 11 July 1996 does not go into any more detail than the
Judgment of 26 November 1984 about the provisions making up the Treaty
containing the jurisdiction clause.
The second analogy between the scission of jurisdiction and the exercise of
jurisdiction on the merits may be sought by examining the scission of
certain jurisdictions between two jurisdictional orders. That is the case
for the application of Article 177 of the EC Treaty by virtue of which the
Court of Justice of the European Communities is seised, by way of
preliminary reference, of a question of interpretation of a provision of
Community law. Here the distribution of jurisdiction consists of separating
application from interpretation. The Community Court is merely competent to
give an interpretation (which is sometimes described as an abstract) of a
provision whose application is entirely governed by domestic courts. This
distribution of jurisdictions raises a problem very similar to the one that
is presently before the Court. Indeed, as it is the only court competent to
apply Community law, and, if necessary, to declare that a domestic law is
incompatible with Community legislation, the national court must decide
whether the question of interpretation is relevant to the resolution of the
dispute before it and, even, whether such a question arises. There is
extensive case-law of the Court of Justice of the European Communities on
this point the gist of which must be sought in the opinion of Advocate
General Lagrange given prior to the two oldest judgments on the subject. The
distribution of jurisdictions between the two jurisdictional orders follows
a rule which, according to that Advocate General, is "very simple":
"before the procedure of referring a question for a preliminary ruling on
interpretation can be set in motion, there must clearly be a question, and
that question must be relative to the interpretation of the provision
involved; otherwise, if the provision is perfectly clear, there is no longer
any need for interpretation but only for application, which belongs to the
jurisdiction of the national court whose very task it is to apply the law.
This is what is sometimes described, not perhaps very accurately and in a
way which is often misunder-[p 872]stood, as the theory of the 'acte clair'
(a measure whose meaning is self-evident): really, it is simply a question
of a demarcation line between the two jurisdictions. Of course, as always in
such a case, there can be doubtful cases or borderline cases. When in doubt,
obviously, the court should make the reference."FN1
------------------------------------------------------------------------------------------------------------
FN1
Opinion of Advocate General Lagrange given prior to the Judgment of 27 March
1963 in Joined Cases 28/62, 29/62, 30/62, Da Costa, and Schaake n.v. and
Others v. Netherlands Inland Revenue Administration, [1963] ECR31, at pp.
44 and 45. (The italics are in the text.) See also the opinion of the
Advocate General given prior to the Judgment of 20 February 1964, Case 6/64,
Flaminio Costa v. E.N.E.L., [1964] ECR 585, at p. 600.
------------------------------------------------------------------------------------------------------------
The Court of Justice of the European Communities has adopted the views of
its Advocate General in a long series of Judgments, one of the most recent
of which noted that there was "established case-law" in the following terms:
"it is solely for the national courts before which actions are brought, and
which must bear the responsibility for the subsequent judicial decision, to
determine in the light of the special features of each case both the need
for a preliminary ruling in order to enable them to deliver judgment and the
relevance of the questions which they submit to the Court. Dismissal of a
request from a national court is possible where it is plainly apparent that
the interpretation of Community law or the consideration of the validity of
a Community rule, requested by that court, has no bearing on the real
situation or on the subject-matter of the case in the main proceedings."FN2
------------------------------------------------------------------------------------------------------------
FN2
Court of Justice of the European Communities, Judgment of 3 March 1994 in
Joined Cases C-332/92, C-333/92, C-335/92, Enrico Italia Sri and Others v.
Ente Nazionale Risi, [1994] ECR 1-711, at p. 1-734, para. 17.
------------------------------------------------------------------------------------------------------------
Although they are applied to the relationship between two orders of court,
the principles set out here may be transposed to the case in which a court
separates the question of jurisdiction and the question of merits, when the
first is dependent on there being a question of interpretation or
application of a treaty text. To decide whether there is such a question,
there is no need to prejudge the outcome, it is sufficient to note that the
text or texts to be interpreted allow for various readings. As soon as a
doubt may reasonably be raised on the interpretation of a text, one must
conclude that there exists a question of interpretation, and that that doubt
does not call in question the jurisdiction of the Court since, on the
contrary, it is such a doubt which confirms that the Court has
jurisdiction. And it is only if the question of interpretation (or
application) had "no bearing on the real situation or on the subject-matter
of the case in the main proceedings" (according to the wording of the
Judgment of 3 March 1994 cited above which seemed to echo the words of the
International Court of Justice in its Advisory Opinion of 23 October 1956
cited previously, I. C.J. Reports 1956, p. 89), that the Court could uphold
an objection of lack of jurisdiction in relation to a jurisdiction clause [p
873] whose object is "any question of interpretation or application". What
is described as "the need for a preliminary ruling" in the Judgment of 3
March 1994 refers to the existence of a sufficient doubt for the
interpretation to raise questions and such a need was excluded in an
earlier judgment when there is a precedent on the same subject or when
"the correct application of Community law may be so obvious as to leave no
scope for any reasonable doubt as to the manner in which the question raised
is to be resolved"FN3.
------------------------------------------------------------------------------------------------------------
FN3
Court of Justice of the European Communities, Judgment of 6 October 1982 in
Case 283/81, CILFIT, the Ministry of Health, [1982] ECR3415, at p. 3430,
para. 16.
------------------------------------------------------------------------------------------------------------
Those words may be perfectly well adapted to review by the Court as to
whether it has jurisdiction in relation to a clause by which two States
undertook to submit to it "any question" relating "to the interpretation or
the application" of a treaty.
Conclusion
If the Court had followed the method recommended in the third part of this
opinion, it could, after having dismissed the part of the preliminary
objection according to which the 1955 Treaty could not apply to questions
concerning the use of force, have merely declared that there existed between
the Parties a legal dispute as to the interpretation or to the application
of the three Articles of the Treaty invoked by the Applicant in support of
its action. In order to decide that there was a question of interpretation
or application of a treaty containing a jurisdiction clause relating to that
type of question, it is sufficient to note the existence of the clause
without it being necessary to decide the question, that is to say to
exercise jurisdiction prematurely when it would have been sufficient to
recognize that jurisdiction in principle.
(Signed) Francois Rigaux.
[p 874]
DISSENTING OPINION OF VICE-PRESIDENT SCHWEBEL
While there is much with which I agree in the Court's Judgment, I am unable
to accept its dispositive decision that it has jurisdiction to entertain
the claims made by the Islamic Republic of Iran under Article X, paragraph
1, of the Treaty of Amity, Economic Relations, and Consular Rights of 1955.
In interpreting the scope of a compromissory clause of a treaty according
the Court jurisdiction over any dispute between the parties "as to the
interpretation or application" of that treaty, the Court must, as with any
other treaty, establish the intention of the parties to it. It must consider
whether the parties to the treaty intended that claims of the character
advanced in a particular dispute were to be subject to the Court's
jurisdiction. It must consider whether the particular claims so advanced
fall within the terms of any provision of the treaty.
Neither the United States nor Iran, in concluding the Treaty of 1955, in my
view intended that claims of the character advanced by Iran in this case
would be subject to the Court's jurisdiction. Nor do I find that the
particular claims advanced by Iran in this case fall within the terms of any
provision of the Treaty, including Article X, paragraph 1. Neither the text
nor the circumstances of the conclusion of the Treaty sustain Iran's
contentions, even to the limited extent that the Court has found those
contentions to be sustainable.
In 1980, in construing this very Treaty, this Court held that:
"The very purpose of a treaty of amity, and indeed of a treaty of
establishment, is to promote friendly relations between the two countries
concerned, and between their two peoples, more especially by mutual
undertakings to ensure the protection and security of their nationals in
each other's territory." (United States Diplomatic and Consular Staff in
Tehran, I.C.J. Reports 1980, p. 28, para. 54.)
The Court thus drew a distinction between promotion of friendly relations
(apparently a reference to Article I of the Treaty) and "mutual
undertakings" to ensure the protection and security of the nationals of each
party in the territory of the other. It is only the latter that is cast in
the terminology of legal obligation. That, in a nutshell, is the substance
of the 1955 Treaty, rightly stated and understood. [p 875]
The International Use of Armed Force
Iran's complaints in this case turn on the attacks upon and destruction of
three offshore oil production complexes, owned by the National Iranian Oil
Company, which were situated on Iran's continental shelf and within its
exclusive economic zone. Iran maintains that the attacks were carried out by
several warships of the United States Navy, during a period when Iran was
the victim of a war imposed upon it by Iraq, whose forces subjected its oil
installations and commercial shipping to eight years of attacks. The United
States acknowledges that the oil platforms in question were destroyed by
forces of the United States Navy, and claims that they were bombarded to put
out of action bases which were used to support a long series of attacks by
Iranian military and paramilitary forces on United States and other neutral
vessels engaged in peaceful commerce in the Persian Gulf. The United States
claims that numerous Iranian helicopter attacks against merchant shipping
were launched from oil platforms, and that small high-speed patrol boats
were deployed from oil platforms to attack shipping and lay naval mines.
Those claims are denied by Iran.
What is not denied, and cannot be denied, is that the attacks by the United
States Navy on the three Iranian oil platforms at issue constituted a use by
the United States of armed force against what it claims to have seen as
military objectives located within the jurisdiction of another State, Iran.
The threshold question that the Court must resolve is, is a dispute over
attacks by United States Armed Forces against Iranian objectives in the
described circumstances a dispute that arises under the Treaty of Amity,
Economic Relations, and Consular Rights?
The answer to that question as I see it is, obviously not. It is obvious
from the title, preamble, and terms of the Treaty. It is obvious from the
circumstances of the conclusion as well as the text of the Treaty when those
circumstances are set out. And what the text and circumstances of the Treaty
demonstrate is sustained by such subsequent interpretation as the parties
have placed upon it.
The preamble of the Treaty provides:
"The United States of America and Iran, desirous of emphasizing the friendly
relations which have long prevailed between their peoples, of reaffirming
the high principles in the regulation of human affairs to which they are
committed, of encouraging mutually bene-ficial trade and investments and
closer economic intercourse generally between their peoples, and of
regulating consular relations, [p 876]have resolved to conclude, on the
basis of reciprocal equality of treatment, a Treaty of Amity, Economic
Relations, and Consular Rights ..."
It is plain that this is a Treaty which is essentially concerned with
encouraging mutually beneficial trade and investments and closer economic
intercourse on the basis of reciprocal equality of treatment. There is no
suggestion of regulating the use of armed force by one party against the
other.
Article I of the Treaty provides that there shall be firm and enduring peace
and sincere friendship between the United States and Iran. The Court has
quite correctly held that this provision must merely be regarded as fixing
an objective, in the light of which other Treaty provisions are to be
interpreted and applied; of itself it imposes no obligations, including
obligations governing the use of force in international relations. Those
other Treaty provisions regulate the conditions of residence of nationals of
one party on the territory of the other, particularly for purposes of trade
and investment, and assure the nationals of one party the most constant
protection and security in the territory of the other (Art. II); treat the
juridical status of companies and access to courts and arbitration (Art.
Ill); provide for fair and equitable treatment of the nationals and
companies of the other party and prescribe the most constant protection and
security for the property of nationals and companies of either party in the
territory of the other (Art. IV); provide for the leasing of real property
and the acquisition of other property and its disposition by sale or
testament or otherwise, as well as effective protection of intellectual
property (Art. V); govern taxation (Art. VI); regulate financial transfers
(Art. VII); regulate imports, exports and customs duties (Arts. VIII and
IX); treat freedom of commerce and navigation (Art. X) and economic
transactions by government agencies (Art. XI); and provide for the rights
and duties of consuls (Arts. XII-XIX). None of these core provisions of the
Treaty suggests that attacks by armed forces of one party against what it
treats as military objectives within the jurisdiction of the other party are
within the reach of the Treaty.
It is significant as well that the Treaty contains none of the treaty
provisions which typically do bear on the international use of force. There
is no pledge of non-aggression or alliance. There is no reference to
military assistance by one party in the event of armed attack upon or
aggression against the other. There is no reference to regional security
arrangements, to the provision of military equipment, to status of forces,
to bases on the territory of one party for the forces of the other. Also
significant is the fact, which the Court's Judgment acknowledges, that the
United States [p 877] and Iran concluded other treaty arrangements for such
purposes, notably the Agreement of Co-operation between the Government of
the United States of America and Imperial Government of Iran of 5 March
1959. That Agreement affirms "their right to co-operate for their security
and defence in accordance with Article 51 of the Charter of the United
Nations" and declares that the United States "regards as vital to its
national interest and to world peace the preservation of the independence
and integrity of Iran". It provides that, in case of aggression against
Iran, the United States will take appropriate action, including the use of
armed forces, in order to assist Iran at its request. It also provides for
the continued furnishing to Iran of military and economic assistance, and
for cooperation with other Governments in mutually agreed defensive
arrangements (Treaties and Other International Acts Series 4189).
Moreover, Article XX of the Treaty of 1955 indicates that certain
international uses of armed force, far from being within the compass of the
Treaty, are excluded from it. Article XX the sole reference in the Treaty
to such matters provides that:
"1. The present Treaty shall not preclude the application of measures:
(d) necessary to fulfill the obligations of a High Contracting Party for the
maintenance or restoration of international peace and security, or necessary
to protect its essential security interests."
Article XX is an exclusion clause. It excludes from the areas regulated by
the obligations of the Treaty the application of specified measures,
including measures of a party "necessary to protect its essential security
interests". Such an exclusion can hardly entitle the Court to assume
juris-diction over a claim that engages the essential security interests of
the United States if not Iran as well. The object of Iran's claims in this
case is the calculated application of armed force by the United States
against what it has treated as military objectives within the jurisdiction
of Iran, which objectives for its part Iran views as vital to its economic
and strategic interests. It follows that, since the Treaty does not
preclude the application of such measures, they do not fall within its
regulated reach and hence do not fall within the scope of the compromissory
clause submitting disputes "as to the interpretation or application of the
present Treaty" to the jurisdiction of the Court. [p 878]
How does the Judgment of the Court affirming its jurisdiction deal with
Article XX?
It asserts that the Treaty of 1955 contains no provision expressly excluding
certain matters from the jurisdiction of the Court. It then quotes Article
XX, paragraph 1 (d), and acknowledges that,
"This text could be interpreted as excluding certain measures from the
actual scope of the Treaty and, consequently, as excluding the jurisdiction
of the Court to test the lawfulness of such measures." (Para. 20.)
But it continues:
"It could also be understood as affording only a defence on the merits. The
Court, in its Judgment of 27 June 1986 in the case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), adopted the latter interpretation for the application of
an identical clause included in the Treaty of Friendship, Commerce and
Navigation concluded between the United States and Nicaragua on 21 January
1956 (I. C.J. Reports 1986, p. 116, para. 222, and p. 136, para. 271). Iran
argues, in this case, that the Court should give the same interpretation to
Article XX, paragraph 1 (d). The United States, for its part, in the most
recent presentation of its arguments, stated that 'consideration of the
interpretation and application of Article XX, paragraph 1 (d), was a merits
issue'. The Court sees no reason to vary the conclusions it arrived at in
1986. It accordingly takes the view that Article XX, paragraph 1 (d), does
not restrict its jurisdiction in the present case, but is confined to
affording the Parties a possible defence on the merits to be used should the
occasion arise." (Ibid.)
It is true that the Court in its 1986 Judgment on the merits in Military and
Paramilitary Activities in and against Nicaragua treated the corresponding
article of the Treaty of Friendship, Commerce and Navigation between the
United States and Nicaragua as a defence on the merits, which in the
particular circumstances it found to be unpersuasive. The Court had failed
to address the question at all in its 1984 Judgment on jurisdiction, when it
should naturally have done so; as a consequence, the question fell to the
merits if it was to be addressed at all. In my view, this history leaves the
Court free in the present proceedings objectively to apply the terms of
Article XX of the Treaty of 1955, unconstrained by the 1986 holding. The
reasoning belatedly expressed by the Court on the matter in 1986 was in my
view unpersuasive and remains so; and question has been rightly raised
about the "value as a precedent" of holdings of the Court in the case
(Shabtai Rosenne, The World Court, What It Is and How It Works, 5th ed.,
rev., 1995, pp. 152-153).
The Court in this Judgment takes the position that Iran argued in these [p
879] proceedings that the Court should give the same interpretation to
Article XX, paragraph 1 (d), as it did in 1986, and that the United States
concluded that consideration of the interpretation and application of
Article XX, paragraph 1 (d), was an issue for the merits. The Court declares
that it sees no reason to vary the conclusions arrived at in 1986. But I
believe the position of the United States in this case, and the
responsibilities of the Court in this case, to be somewhat different.
In its Preliminary Objection, the United States maintained that:
"Section 4. Article XX Confirms that the 1955 Treaty Is Not Intended to
Address Questions Relating to the Use of Force by the Parties During Armed
Conflict
3.36. Any doubts as to the applicability of the 1955 Treaty to Iran's claims
is dispelled by Article XX of the Treaty, paragraph (1), which provides:
'1. The present Treaty shall not preclude the application of measures:
(d) necessary ... to protect its [a party's] essential security interests.'
3.37. The intended relationship of this provision to the jurisdiction of
the Court was expressly addressed during the process of obtaining
ratification of other friendship treaties with the identical provision.
Thus, in connection with the ratification of the treaty with China the
Department of State submitted to the United States Senate a memorandum on
the dispute settlement clause that addressed the scope of the compromissory
clause providing for the submission of disputes under that treaty to this
Court. That Memorandum provides:
'The compromissory clause ... is limited to questions of interpretation or
application of this treaty; i.e., it is a special not a general
compromissory clause.
Furthermore, certain important subjects, notably immigration, traffic in
military supplies, and the "essential interests of the country in time of
national emergency", are specifically excepted from the purview of the
treaty. In view of the above, it is difficult to conceive how Article XXVIII
could result in this Government's being impleaded in a matter in which it
might be embarrassed.'
A similar memorandum was later submitted to the Senate in regard to FCN
treaties with Belgium and Viet Nam. That memorandum points out:
'a number of the features which in its view make this provision satisfactory
. . . These include the fact that the provision is limited [p 880] to
differences arising immediately from the specific treaty concerned, that
such treaties deal with familiar subject matter and are thoroughly
documented in the records of the negotiation, that an established body of
interpretation already exists for much of the subject matter of such
treaties, and that such purely domestic matters as immigration policy and
military security are placed outside the scope of such treaties by specific
exceptions.'
This history demonstrates that the 1955 Treaty was not intended to reach
matters relating to the essential security interests of the parties.
3.40. In the Nicaragua case the Court held that US national security
interests were not threatened by the insurgent attacks against El Salvador
that had formed the basis of the US claim to have acted in self-defense. In
contrast, Iranian attacks on US and other neutral vessels in the Persian
Gulf clearly threatened US national security interests. In the current case,
the United States invokes the comparable article in the 1955 Treaty for the
purpose of supporting its argument that Articles I, IV and X of the 1955
Treaty relied upon by Iran were never intended to address the use of force
issues presented by Iran's claims in connection with the events of October
1987 and April 1988."
The United States Preliminary Objection concluded that, in this case,
"Consequently, the Court is presented with exactly the type of situation the
1955 Treaty does not cover." (Pp. 50-53.)
At the stage of the oral proceedings, counsel of the United States initially
submitted:
"Article XX (1) (d) requires that the 1955 Treaty
'shall not preclude the application of measures . . . necessary to fulfill
the obligations of a High Contracting Party for the maintenance or
restoration of international peace and security or necessary to protect its
essential security interests'.
Our preliminary objection suggested that, as a jurisdictional matter, this
provision helped to show that Articles I, IV and X, those invoked by Iran,
were not designed or intended to govern Iran's claims regarding the use of
force. This is because Article XX (1) (d) manifested the parties' intent to
keep such matters outside the scope of the Treaty. We believe that
jurisdictional point remains valid. However, the Islamic Republic of Iran's
Observations and Submissions responded to it with several pages of animated
arguments [p 881] essentially addressing how Article XX (1) (d) should be
interpreted and applied to the merits of this dispute.
With respect, I think this is not the point on which to join issue on these
particular arguments. We do not now, where the issue is the Court's lack of
jurisdiction, raise Article XX (1) (d) as a defence against the merits of
Iran's claims. The significance of Article XX (1) (d) is not at the heart of
our position concerning this Court's lack of jurisdiction. It should not be
allowed to cloud the issues that are before the Court. Thus, I suggest that
it is not necessary for the Court to address the specific arguments
regarding the construction and application of Article XX (1) (d), unless
there should be a future merits phase." (CR 96/13, p. 33.)
Subsequently, United States counsel stated:
"that consideration of the interpretation and application of Article XX (1)
(d) was a merits issue . . . The position of the United States is that the
1955 Treaty does not regulate the conduct of military hostilities, and
therefore, that such conduct should never never be the subject of any
merits proceedings in this Court under the Treaty. Article XX (1) (d) is not
inconsistent with this position ... If the Court should rule that it does
have jurisdiction to adjudicate Iran's claims regarding the military events
at issue then, of course, the United States would demonstrate that its
actions did not violate the Treaty. In this regard, the United States would
invoke Article XX, paragraph 1, and show that the Treaty does not preclude
the Parties from taking actions consistent with the law govern-ing the use
of force and the exercise of self-defence.
Thus, the United States certainly does not concede that the 1955 Treaty
regulates the conduct of armed conflict. However, should the Court rule
otherwise, there will be a need for the Parties and the Court to examine
with care the exceptions to the reach of the Treaty that are expressly
written into Article XX (1) (d)." (CR 96/16, pp. 35-36.)
Therefore, in the end, as in the beginning, the United States treats Article
XX as specifying exceptions to the reach of the Treaty. As I understand its
position, it maintains that Article XX on its face places the use of force
in protection of a party's essential security interests beyond the reach of
the Treaty, but if nevertheless the Court should assume jurisdiction in the
case, this provision will provide a defence on the merits.
In my view, for the reasons stated, the Court should have passed upon
Article XX, paragraph 1 (d), at this stage of the proceedings and given [p
882] effect to it, whatever the equivocations in the construction of it
advanced in the oral argument. Apart from Article XX, the Court more
generally concludes:
"The Treaty of 1955 imposes on each of the Parties various obligations on a
variety of matters. Any action by one of the Parties that is incompatible
with those obligations is unlawful, regardless of the means by which it is
brought about. A violation of the rights of one party under the Treaty by
means of the use of force is as unlawful as would be a violation by
administrative decision or by any other means. Matters relating to the use
of force are therefore not per se excluded from the reach of the Treaty of
1955." (Para. 21.)
I agree with this reasoning in a measure. If Iran or the United States were
to expropriate property of a national of the other without compensation and
use force in the process, or if Iran or the United States were by force to
maltreat or imprison a consul of the other, the Treaty would be violated. To
this extent, the Court is right to say that a violation of the rights of a
party under the Treaty by means of the use of force is as much a breach as
would be a violation by administrative decision or other means. In this
sense, matters relating to the use of force are not as such excluded from
the purview of the Treaty.
But it does not follow that the use by one party to the Treaty of its armed
forces to attack what it treated as military objectives within the
jurisdiction of the other party is within the reach of the Treaty. The
Treaty simply does not deal with that kind of use of force, which is rather
governed by the Charter of the United Nations and other provisions of
international law relating to armed conflict between States.
This conclusion is sustained by papers submitted by the United States
Government to the United States Senate in connection with the ratification
of the Treaty of 1955 as well as other very similar treaties of friendship,
commerce and navigation. Not only did the United States cite and rely upon
these papers in these proceedings; it is significant that Iran itself did so
as well (see the Memorial submitted by the Islamic Republic of Iran, Exhibit
98, which quotes from a statement on commercial treaties with Iran,
Nicaragua and the Netherlands submitted to the United States Senate on 3
July 1956, and the Observations and Submissions on the United States
Preliminary Objection Submitted by the Islamic Republic of Iran, Exhibit
10, which quotes from a memorandum to the United States Embassy at Chongqing
of 2 February 1945 for use in negotiating the Treaty of Friendship, Commerce
and Navigation with China). These papers may properly be weighed by the
Court not as travaux prιparatoires, but as part of the circumstances of the
conclusion of the Treaty, introduced by both of the Parties to the Treaty
and to these proceedings, as to the admissibility of which no question was
raised by the Court. [p 883]
Indeed in its Judgment the Court itself relies on these documents and the
absence of divergent Iranian documents to show the meaning attached to
provisions of the Treaty of 1955.
Iran invoked a memorandum concerning negotiation of the Treaty of
Friendship, Commerce and Navigation between the United States and China. One
of the papers of that negotiation is published in the pleadings in the case
concerning United States Diplomatic and Consular Staff in Tehran, Annex 52,
entitled, "Memorandum on Dispute Settlement Clause in Treaty of Friendship,
Commerce and Navigation with China". It says of a compromissory clause
identical to that found in the Treaty of 1955:
"The compromissory clause (Article XXVIII) of the treaty with China,
however, is limited to questions of the interpretation or application of
this treaty; i.e., it is a special not a general compromissory clause. It
applies to a treaty on the negotiation of which there is voluminous
documentation indicating the intent of the parties. This treaty deals with
subjects which are common to a large number of treaties, concluded over a
long period of time by nearly all nations. Much of the general
subject-matter and in some cases almost identical language has been
adjudicated in the courts of this and other countries. The authorities for
the interpretation of this treaty are, therefore, to a considerable extent
established and well known. Furthermore, certain important subjects, notably
immigra-tion, traffic in military supplies, and the 'essential interests of
the country in time of national emergency', are specifically excepted from
the purview of the treaty. In view of the above, it is difficult to conceive
how Article XXVIII could result in this Government's being impleaded in a
matter in which it might be embarrassed."
Annex 53 to the same pleadings refers to the foregoing paper in these terms:
"This paper indicates that the provision in question is intended to fill the
need for an agreed method of settling differences arising out of treaties of
this type, that would be both sound and generally acceptable. It points out
a number of the features which in its view make the provision satisfactory
from this standpoint. These include the fact that the provision is limited
to differences arising immediately from the specific treaty concerned, that
such treaties deal with familiar subject-matter and are thoroughly
documented in the records of the negotiation, that an established body of
interpretation already exists for much of the subject-matter of such
treaties, and that such purely domestic matters as immigration policy and
military security are placed outside the scope of such treaties by specific
[p 884] exceptions. The paper indicates the Department's view not only that
such a treaty provision would not operate in a manner detrimental to US
interests but that it is in the interest of the United States to be able to
have recourse to the International Court of Justice in case of treaty
violation." (I.C.J. Pleadings, United States Diplomatic and Consular Staff
in Tehran, pp. 235, 237.)
These quotations establish not only that treaties of friendship, commerce
and navigation concluded by the United States, like a large number of
treaties concluded over a long period of time by almost all nations, concern
familiar commercial matters, as to which there is voluminous documentation,
the authorities for the interpretation of which are established and well
known and which are the subject of much national adjudication (unlike
matters concerning the international use of force, which are not). They
establish as well that the compromissory clause is meant to be "limited to
differences arising immediately from the specific treaty concerned".
Moreover, they reaffirm that essential security interests "are specifically
excepted from the purview of the treaty". Military security "is placed
outside the scope of such treaties by specific exception[s]".
All this demonstrates the intention of the United States in concluding
treaties of this content and character. It is significant not only that Iran
has itself introduced evidence of this very kind in these proceedings. It is
no less significant that Iran has not introduced any evidence showing that
its intentions in concluding the Treaty of 1955 differed from those of the
United States. By way of contrast, Iran introduced vital evidence of its
legislative intent "filed for the sole purpose of throwing light on a
disputed question of fact, namely, the intention of the Government of Iran"
at the time it adhered to the Court's compulsory jurisdiction under the
Optional Clause (Anglo-Iranian Oil Co., I.C.J. Reports 1952, pp. 93, 107).
Finally, in construing the Treaty of 1955 before the Iran-United States
Claims Tribunal, that is, in interpreting the Treaty in practice, Iran
argued that the use of military force "was unforeseen by that Treaty and
cannot be regulated by it". In Amoco International Finance Corp. v. Islamic
Republic of Iran, Iran contended:
" 'First, it is totally unrealistic to assume that at the time in question,
1979/1980, the Treaty of Amity was operative in the relations between the
United States and Iran. The situation which existed (and which included the
sending of a US military expedition into Iranian territory, as well as the
seizure of Iranian assets) was not one which could be said to be regulated
by the terms of the 1955 Treaty [p 885]of Amity. The situation was
unforeseen by that Treaty and cannot be regulated by it.'" (Defence and
Counterclaim of the Islamic Republic of Iran et al, of 24 May 1984, as
quoted in Preliminary Objection of the United States of America, Exhibit
54.)
Article X of the Treaty of 1955
The Court finds that it has jurisdiction, on the basis of Article XXI,
paragraph 2, of the Treaty, "to entertain the claims made by the Islamic
Republic of Iran under Article X, paragraph 1" of the Treaty. In its
Application, Iran maintained that,
"By its actions in assisting the Government of Iraq in its war efforts, in
threatening and provoking the Islamic Republic with the deployment of US
forces in the region, and in attacking and destroying Iranian entities and
the oil installations referred to here, the United States has gravely
interfered with the commerce and navigation of the Islamic Republic and had
thus violated the provisions of Article X (1) of the Treaty."
In its written and oral pleadings, Iran confined itself to the claim that
violation of Article X, paragraph 1, sprung from the attacks on and
destruction of the oil platforms.
Article X of the Treaty provides:
"1. Between the territories of the two High Contracting Parties there shall
be freedom of commerce and navigation.
2. Vessels under the flag of either High Contracting Party, and carrying the
papers required by its law in proof of nationality, shall be deemed to be
vessels of that High Contracting Party both on the high seas and within the
ports, places and waters of the other High Contracting Party.
3. Vessels of either High Contracting Party shall have liberty, on equal
terms with vessels of the other High Contracting Party and on equal terms
with vessels of any third country, to come with their cargoes to all ports,
places and waters of such other High Contracting Party open to foreign
commerce and navigation. Such vessels and cargoes shall in all respects be
accorded national treatment and most-favored-nation treatment within the
ports, places and waters of such other High Contracting Party; but each High
Contracting Party may reserve exclusive rights and privileges to its own
vessels with respect to the coasting trade, inland navigation and national
fisheries.
4. Vessels of either High Contracting Party shall be accorded national
treatment and most-favored-nation treatment by the other [p 886] High
Contracting Party with respect to the right to carry all products that may
be carried by vessel to or from the territories of such other High
Contracting Party; and such products shall be accorded treatment no less
favorable than that accorded like products carried in vessels of such other
High Contracting Party, with respect to: (a) duties and charges of all
kinds, (b) the administration of the customs, and (c) bounties, drawbacks
and other privileges of this nature.
5. Vessels of either High Contracting Party that are in distress shall be
permitted to take refuge in the nearest port or haven of the other High
Contracting Party, and shall receive friendly treatment and assistance.
6. The term 'vessels', as used herein, means all types of vessels, whether
privately owned or operated, or publicly owned or operated; but this term
does not, except with reference to paragraphs 2 and 5 of the present
Article, include fishing vessels or vessels of war."
Since every paragraph of Article X except the first refers expressly to
"vessels" and since stationary oil platforms are not vessels, neither Iran
nor the Court purport to found jurisdiction on paragraphs of Article X other
than paragraph 1, which refers to "freedom of commerce and navi-gation".
Evidence introduced before the Court treats the whole of Article X as "a
navigation article". A principal United States negotiator of the series of
largely identical treaties of friendship, commerce and navigation describes
the standard article on these matters precisely as "a navigation article"
that
"reaffirms a liberal regime of treatment to be applied to international
shipping. The rules set forth reflect the practices which have historically
been developed by leading maritime nations ..." (Herman Walker, "The
Post-War Commercial Treaty Program of the United States", Political Science
Quarterly, Vol. LXXIX, p. 73.)
Other commentators cited to the Court similarly interpret Article X. Article
X as a whole is concerned with shipping, not with commerce generally. The
fact that every paragraph but the first refers to "vessels" suggests that
the purpose of paragraph 1 is not to deal with commerce generally for if
that were its purpose it would appear as a separate article of the Treaty
but to introduce and set the objective of the remaining paragraphs of the
article. (In reviewing those paragraphs, it is worth noting that, in the
last, "vessels of war" are excluded from the reach of the article except in
specified respects.) Moreover, specifics of freedom of commerce are dealt
with in detail in Articles VIII and IX of the Treaty. Accordingly when the
Treaty means to address more than [p 887] freedom of maritime commerce, it
does so in other articles and in terms that have no bearing on the dispute
before the Court.
The Court nevertheless finds that Article X is not restricted to maritime
commerce for the reasons set out in the Judgment.
Even if those reasons are thought to be tenable, where in my view the
Court's conclusions are untenable is in its holding that "commerce" is not
restricted to acts of purchase and sale. It interprets "commerce" as
embracing "the ancillary activities related to commerce". It thus appears to
conclude, although it does not state, that "commerce" includes
"production". It offers quotations from the Oxford English Dictionary and
the Oscar Chinn case and a few other sources in support of this conclusion.
The difficulty with the reasoning of the Court is that production is not
ancillary to commerce. It is anterior to it, just as the existence of
territory, people, rainfall, geological formations, growing of crops,
generation of capital, etc., is anterior to commerce which exchanges what
may be products of the productive conjunction of such resources. The
quotation from the Oxford English Dictionary defines commerce to include
"the whole of the transactions, arrangements, etc., therein involved", and
"therein" refers to sale and purchase which hardly implies that com-merce
extends to production. The Court's reference to the Dictionnaire de la
terminologie du droit international and to a few other disparate sources is
no more probative; they make no reference to production whatsoever. Black's
Law Dictionary on which Iran and the Court rely contains no reference to or
suggestion that commerce includes production ; it is confined to "the
purchase, sale and exchange of commodities" and the agencies and means of
such exchange. At the same time, a review of the dozen or more dictionaries
in the Library of the Court, English and multilingual, turns up none that
define commerce to include production. Rather, like David M. Walker's The
Oxford Companion to Law (Oxford University Press, 1980), they define as
"Commerce. The exchange of commodities and all the arrangements involved in
effecting such exchanges." (P. 247.)
The fact of the matter is that commerce in ordinary and in legal usage is
simply not understood to embrace production. Oscar Chinn gives the Court
more, but insufficient support, because the term there under construction
was "freedom of trade" not freedom of commerce, and "trade" is widely
interpreted as a broader term than commerce, and one which, unlike commerce,
may include "industry". Moreover, the "trade" at issue [p 888] in the Oscar
Chinn case was not production but river transport; the "industry" in
question was "the transport business". The Court's holding "that the fluvial
transport industry is a branch of commerce" is of no relevance or assistance
to Iran's position in these proceedings (Oscar Chinn, P.C.I.J., Series A/B,
No. 63, pp. 65, 81, 85). In short, the growing of pistachio nuts in Iran is
not commerce within the meaning of Article X of the Treaty; the feeding of
sturgeon in the Caspian Sea is not commerce within the meaning of Article X
of the Treaty ; and the production of oil on Iran's continental shelf is not
commerce within the meaning of Article X of the Treaty.
This being so, the Court's reliance on "freedom" of commerce does not
strengthen its analysis. To be sure, if the wherewithal to exchange is
lacking or is destroyed, there can be no exchange; there can be no commerce
in non-existent goods. But on the Court's reasoning, action that impairs the
life or health of the inhabitants of Iran, or that detracts from its
climate, environment, condition of its natural resources, generation of its
capital, etc., also prejudices its freedom of commerce in that such action
may affect the ability of Iran to produce the goods to exchange. It might in
this vein be argued that if pollution originating in country A wafts onto
the territory of country B, country A, assuming it to be bound to freedom of
commerce with country B, is in violation of its obligation. I do not believe
that a treaty provision that, "Between the territories of the two High
Contracting Parties there shall be freedom of commerce and navigation"
sustains so far-reaching if not far-fetched an interpretation. Nor am I
persuaded that freedom of commerce and navigation within the meaning of the
Treaty could be affected by the fact or allegation that some or all of the
destroyed oil platforms in question were connected by a pipeline network to
port facilities.
It may be added that the Court's holdings in Military and Paramilitary
Activities in and against Nicaragua are consistent with the conclusion that
Article X, paragraph 1, of the Treaty of 1955 is confined to commerce and
does not include production or facilities for production. In that case, the
Court found that mining of the approaches to ports and port installations
impaired Nicaragua's right to freedom of communications and maritime
commerce (I. C.J. Reports 1986, pp. 111-112, 128-129, 139), as that right
was protected by the corresponding article of the Treaty of Friendship,
Commerce and Navigation between Nicaragua and the United States. It did not
hold that attacks on oil pipelines and storage tanks violated that article
of the Treaty. On the contrary, while the Court's Judgment recites that
Nicaragua argued that [p 889]
"Since the word 'commerce' in the 1956 Treaty must be understood in its
broadest sense, all of the activities by which the United States has
deliberately inflicted on Nicaragua physical damage and economic losses of
all types, violate the principle of freedom of commerce which the Treaty
establishes in very general terms" (I.C.J. Reports 1986, p. 139),
the Court did not pass upon that contention (see ibid., pp. 139-140). There
is nothing in the Court's holdings that suggests that that article protected
the production of oil or any other commodity in Nicaragua.
For these reasons, I conclude that the Court's reliance on Article X,
paragraph 1, of the Treaty of 1955 to found the jurisdiction of the Court in
this case is unfounded.
(Signed) Stephen M. Schwebel.
[p 890]
DISSENTING OPINION OF JUDGE ODA
I. Introductory Remarks
1. To my great regret I find myself dissenting from the Court's Judgment on
account of my belief that the Court should have upheld the preliminary
objection concerning the Court's jurisdiction as raised by the United
States, and should have declined to entertain the Application filed by Iran.
2. On 2 November 1992, Iran filed the Application instituting proceedings
against the United States in respect of a dispute arising out of the attack
on and destruction of three oil platforms by the United States Navy in 1987
and 1988, in which it claimed that the United States had breached its
obligations to Iran under the Treaty of Amity, Economic Relations and
Consular Rights, a bilateral treaty which it had concluded in 1955 with the
United States, and had breached international law. Iran invoked that Treaty
as a basis for the Court's jurisdiction to entertain the dispute. The
relevant Article in the Treaty (compromissary clause) reads:
"Article XXI
2. Any dispute between the High Contracting Parties as to the interpretation
or application of the present Treaty, not satisfactorily adjusted by
diplomacy, shall be submitted to the International Court of Justice, unless
the High Contracting Parties agree to settlement by some other pacific
means."
On 16 December 1993, the United States requested the Court to uphold its
preliminary objection to the jurisdiction of the Court to entertain the
case.
3. By way of an introduction to my opinion, I wonder if there was in fact
any dispute between Iran and the United States prior to the filing of the
Application of Iran with respect to the "interpretation or application" of
the 1955 Treaty. As far as the record before the Court shows, there was no
diplomatic negotiation between the two countries on this subject before Iran
filed the Application in November 1992. Certainly, in the written and oral
proceedings which followed on from the Application, Iran expressed its
views on various articles (i.e., Articles I, IV (1) and X (1)) of that
Treaty and, in response, the United States presented different views. But
this surely does not mean that there was previously any dispute between Iran
and the United States as to the "interpretation [p 891] or application" of
the 1955 Treaty, such as to be submitted to this Court. I believe, even if
only for that simple reason, that the Iranian Application in the present
case could have been dismissed.
4. This is practically the first case in the history of this Court in which
the Applicant attempts to rely mainly on a compromissory clause of a
bilateral treaty to which it is a party, although there have been a few
cases in which a compromissory clause of a bilateral treaty was relied upon
as an additional or subsidiary basis for the Court's jurisdiction (e.g., the
"1955 Iran-United States Treaty of Amity" which is invoked in the present
case in the case concerning United States Diplomatic and Consular Staff in
Tehran (I.C.J. Reports 1980, p. 3) and the "1956 Nicaragua-United States.
Treaty of Friendship, Commerce and Navigation" invoked in the case
concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility
(I.C.J. Reports 1984, p. 392)). For this reason, it would seem to be
pertinent to examine the meaning of a compromissory clause included in any
given bilateral treaty in the context of the fundamental principle
concerning the required consent to jurisdiction of the States in dispute.
II. The Compromissory Clause of a Treaty in Relation to the Required Consent
of States for Referral of Disputes to the Court
5. There is no doubt whatever that the consent of sovereign States to be
subject to the Court's jurisdiction is a cornerstone of international
justice. As is pointed out in the recent jurisprudence of the Court, "one
of the fundamental principles of the Statute is that the Court cannot decide
a dispute between States without the consent of those States to its
jurisdiction" (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports
1995, p. 101; see also the precedents of the Court referred to therein).
According to its Statute, the Court may be seised of legal disputes in three
different ways: namely, (i) by joint referral of disputes to the Court (Art.
36 (1)), (ii) by seising the Court under the optional clause whereby the
States may declare that they recognize as compulsory the jurisdiction of the
Court (Art. 36 (2)), and (iii) by the referral of disputes in accordance
with treaty provisions (Art. 36 (1)). The fact that the Court's
jurisdiction in a case of unilateral application is restricted to the
latter two instances (in other words, (ii) and (iii)) remains as a
reflection of the basic principle that the consent of the sovereign State is
required for the exercise of the Court's jurisdiction, as in these cases
the respondent States are deemed to have given such consent in advance in
general terms by means of the optional clause of the Statute or by the
insertion of a compromissory clause into treaties. Without the consent,
whether individual or gen-[p 892]eral, of the States concerned, there will
be no legal dispute which can be adjudicated by the Court.
1. Joint Referral to the Court by a Special Agreement Article 36 (1)
6. Some disputes have been presented to the Court on an ad hoc basis by a
special agreement of the two States in dispute under the first part of
Article 36 (1). The joint referral of any case to the Court, as a result of
the consent of the States parties thereto, is undoubtedly the closest to the
ideal in terms of the application of international legal justice. There were
some cases referred to the Court by a special agreement in its first 30-year
period but the following are the only cases of this type with which the
Court has dealt during the past 20 years, apart from some ad hoc Cham-ber
cases: Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (I.C.J. Reports
1982, p. 18), Continental Shelf (Libyan Arab Jamahiriya/Malta) (I.C.J.
Reports 1985, p. 13), and Territorial Dispute (Libyan Arab Jama-hiriya/Chad)
(I.C.J. Reports 1994, p. 6).
2. The General Commitments of States to Refer to the Court Disputes of a
Wider Scope the Optional Clause in the Statute
Article 36 (2)
7. Some States are prepared to defer to the Court's jurisdiction on an
extremely wide range of disputes with other unspecified States. In other
words, the Court's jurisdiction in
"all legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a
breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an
international obligation"
exists on a reciprocal basis among certain States, as Article 36 (2) the
optional clause provides that the States parties to the Court's Statute
"may at any time declare that they recognize as compulsory ipso facto and
without special agreement, in relation to any other State accepting the same
obligation, the jurisdiction of the Court" [p 893]
in the matters referred to in the above quotation. The subject-matter of the
disputes that can be submitted to the Court's compulsory jurisdiction is
wide enough to cover all legal disputes, as mentioned above. A State which
makes such a declaration is deemed to be ready and willing to defer to the
Court's jurisdiction on a wide range of legal disputes which may possibly
arise in its relations with other States making similar declarations.
8. In fact, however, as can be seen from the Annual Report of the Court for
this year, as of the end of July 1996, only 59 States out of a total of 187
States members of the Court's Statute had made declarations under Article 36
(2). In addition, most of the declarations are accompanied by various
reservations and their validity is limited to certain restricted periods. It
should also be noted that, in the past, when the preliminary objections
raised by some States were rejected by the Court, those States proceeded to
withdraw the declaration of the acceptance of the Court's jurisdiction under
the optional clause which they had previously made (e.g., France, in
January 1974 after the Nuclear Tests cases; the United States, in October
1985 after the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America)). This tells us
that there are not so many States that are really willing or prepared to
subject themselves to the compulsory jurisdiction of the Court in relation
to any disputes, in whatever shape or form, that might arise in the future.
In fact, neither Iran nor the United States had made such a declaration as
of November 1992, the date of filing of the Application in the present case.
9. It is noted in the history of the Court that most cases of unilateral
application were related to disputes which arose between those States which
had accepted the Court's jurisdiction under the optional clause, as referred
to above. In some of those cases, the disputes came to the merits phase of
the Court's proceedings without occasioning any objection by the respondent
State and were finally settled by a Judgment of the Court. While there were
four cases in the first 30-year period of the Court, the only two cases of
this type with which the Court dealt during the past 20 years are: Arbitral
Award of 31 July 1989 (I.C.J. Reports 1991, p. 53) and Maritime Delimitation
in the Area between Greenland and Jan May en (I.C.J. Reports 1993, p. 38).
However, in a number of cases of unilateral application on the basis of the
optional clause of the Court's Statute, preliminary objections to the
Court's jurisdiction were raised by the respondent States on account of
their interpretations of the ways in which that clause had been applied. In
some cases, the Court dismissed such objections, so that the cases in
question came to the merits phase. The case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America) (I.C.J. Reports 1986, p. 14) is the only one of this type with
which the Court has dealt in the course of the past 20 years. Alternatively,
the Court could uphold the
[p 894] objections on the ground of the application of the optional clause,
thus bringing the case to an end. There has, in fact, been no case of this
kind dealt with by this Court in this past 20-year period.
10. The application of the optional clause of the Court's Statute can only
be effected among a certain limited number of States. For this reason, some
treaties concluded to promote the peaceful settlement of disputes among a
group of States establish the compulsory jurisdiction of the Court among the
States signing these treaties. The 1928 General Act for the Pacific
Settlement of International Disputes (Art. 17) was used as the basis of
jurisdiction in the case concerning the Aegean Sea Continental Shelf {I.C.J.
Reports 1978, p. 3), in which, however, the Court dismissed the Application
of Greece; it was also invoked by Australia and New Zealand in the Nuclear
Tests cases (I.C.J. Reports 1974, pp. 253, 457). The 1948 American Treaty on
Pacific Settlement (the Pact of Bogota) (Art. XXXI) is another such example
successfully invoked in the case concerning Border and Transborder Armed
Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility (I.C.J.
Reports 1988, p. 67).
3. The Referral of all Matters Provided for in Treaties and Conventions
the Compromissory Clause
11. There are some cases in which States enter into agreements in which they
accept the Court's jurisdiction to deal with certain disputes in accordance
with the Statute as the second part of Article 36 (1) provides that the
Court may deal with "all matters specially provided for . . . in treaties
and conventions in force".
(a) The commitments of States given in advance to refer any particular
dispute to the Court
12. In the Aegean Sea Continental Shelf case, as mentioned above, Greece
relied as a second basis of jurisdiction upon the Brussels Joint
Communique of 1975 issued by the Prime Ministers of Greece and Turkey and
conferring jurisdiction in that particular case concerning the continental
shelf of the Aegean Sea (see para. 10 above). In the case concerning
Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Jurisdiction and Admissibility (I.C.J. Reports 1995, p. 6), Qatar invoked as
the basis of jurisdiction the two agreements determining the subject and
scope of the commitment to accept that jurisdiction (the "Bahraini
formula"). Each of these agreements between two States does not itself
constitute a special agreement but is an agreement expressing the intention
to submit a concrete dispute to the Court.
(b) The compromissory clause of multilateral treaties
13. States may agree in advance in rather general terms to submit to the
Court specific disputes in a certain fixed context. Some multilateral [p
895] treaties (concluded to deal with the substantive rights and duties of
more than two States) contain a compromissory clause which in effect
provides that any dispute which may arise between the States concerning the
"interpretation or application" of those treaties, and which is not settled
by negotiation, shall be referred to the International Court of Justice. In
addition, some law-making multilateral treaties adopted at diplomatic
conferences convened by the United Nations, of which a first example was
that of the four 1958 Geneva Conventions on the law of the sea, are
accompanied by an "Optional Protocol [of Signature] concerning the
Compulsory Settlement of Disputes" which, constituting a separate instrument
appended to the main body of the treaty, provides for the compulsory
jurisdiction of the Court for those States that accept it. The type of
disputes to be subjected to the Court's jurisdiction by invoking as a basis
of that jurisdiction a compromissory clause of a multilateral treaty or an
optional protocol concerning the compulsory settlement of disputes is not so
general as are those "concerning the interpretation of [any] treaty or any
questions of international law" as defined by the optional clause of the
Court's Statute, but is limited to the "interpretation or application" of
the particular treaty in which a compromissory clause is included or to
which an optional protocol is attached.
14. The signatory States which have either been willing to ratify those
multilateral treaties containing a compromissory clause without making any
reservations with respect to that particular clause or have been ready to
ratify the optional protocol concerning the compulsory settlement of
disputes, as the case may be, are considered to have opted for the
compulsory jurisdiction of the Court, in their relations with other
signatory States which have accepted the same obligation, in a dispute as to
the "interpretation or application" of the relevant treaty.
15. There are only a few precedents of a unilateral application relying on
the compromissory clause of a multilateral treaty or on the optional
protocol concerning the compulsory settlement of disputes as a basis of the
Court's jurisdiction. However, even among those States which have thus
accepted the Court's compulsory jurisdiction, a unilateral application
might have met with preliminary objections, just as in the case of an
application on the basis of the optional clause of the Statute. In fact, the
Vienna Convention on Diplomatic Relations and the Vienna Convention on
Consular Relations, to both of which an optional protocol concerning the
compulsory settlement of disputes was appended, were relied upon by the
United States as a basis for jurisdiction in the case concerning United
States Diplomatic and Consular Staff in Tehran (see para. 4 above). A
compromissory clause (Art. IX) of the Genocide Convention was similarly
relied upon by Bosnia and Herzegovina in the case concerning the Application
of the Convention on the Prevention and Punishment of the Crime of Genocide,
Preliminary Objections (I.C.J. Reports 1996, p. 595). In the former case,
the Court proceeded to the merits phase without the
[p 896] participation of the Respondent (Iran) and, in the latter case, by
rejecting the preliminary objections raised by the Respondent (Yugoslavia).
III. Specific Problems Related to the Compromissory Clause of a Bilateral
Treaty
16. A compromissory clause is included not only in multilateral treaties but
also sometimes in bilateral treaties. The conclusion between two States of a
bilateral treaty with a compromissory clause is, however, different in
nature from a State's participation in a multilateral treaty containing a
compromissory clause in the sense that the conclusion of such a bilateral
treaty must in itself inevitably imply acceptance of the compulsory
jurisdiction of the Court. The making of reservations to any provision of a
bilateral treaty is clearly inconceivable and, simply on account of the fact
that the two States have concluded a bilateral treaty which contains a
compromissory clause, each one of those two States is regarded not only as
having agreed on the substantive text of the bilateral treaty itself but
also as having given its definite consent to the exercise of the Court's
jurisdiction over disputes arising under the treaty. This is in contrast to
the case of a multilateral treaty in which any signatory State is in
principle free to make reservations to the compromissory clause or not to
ratify the optional protocol appended to the treaty. It follows that, the
meaning of the compromissory clause in a bilateral treaty should be
considered with even greater care, because neither party can escape from the
compulsory jurisdiction of the Court once the two States have agreed to
negotiate and conclude that particular bilateral treaty. Particularly in the
case of a bilateral treaty, it is more important to investigate the extent
to which the two States have agreed to be subject to the compulsory
jurisdiction of the Court by including a compromissory clause in the treaty
between them.
17. The bilateral treaty must, without a doubt, be a product of complete
accord of the two States parties not only with regard to the substantive
text but concerning the scope the object and purpose of the treaty. Such
a conveyance of views and intentions of the two States is a prerequisite for
the conclusion of the bilateral treaty itself, without which the treaty
itself would not exist. Thus it is most unlikely that a good-faith dispute
could arise between the two States with regard to the scope of the treaty
even though it could happen that an interpretation of the substantive
provisions in their application to some concrete events might be called for.
It follows that, even if the parties to a bilateral treaty are ready to
defer to the jurisdiction of the Court by including a compromissory clause,
the subject of any dispute cannot relate to the question of whether [p 897]
essential issues fall within the comprehensive scope the object and
purpose of the treaty but only to the "interpretation or application" of
a provision of the agreed text of the treaty. This power to adjudicate would
have been limited to the technical interpretation or application of any
individual provisions in the treaty, the whole scope of which the States
themselves had agreed to accept. The range of the "interpretation or
application" of a treaty as covered by the compromissory clause in a
bilateral treaty is strictly limited. Neither party may be presumed to
entrust the evaluation of the scope the object and purpose of the treaty
to a third party without its consent, even where a dispute as to the
interpretation or application of the individual provisions of the treaty is
specified in the compromissory clause.
18. In view of the basic principle of international justice that referral to
the Court should be based upon the consent of sovereign States, neither one
of the States to a bilateral treaty could be presumed to have agreed (and
certainly, in fact, never has agreed) to let the other State refer
unilaterally to the Court a dispute touching upon the object and purpose of
the treaty, as, without a mutual understanding on those matters, the treaty
itself would not have been concluded. The difference of views of the two
States relating to the scope the object and purpose of a treaty cannot
be the subject of an adjudication by the Court unless both States have given
their consent; such a dispute may, however, be brought to the Court by a
special agreement or, alternatively, there may be an occasion for the
application of the rule of forum prorogatum. This is, then, quite different
from the case of the "interpretation or application" of the individual
provisions of the treaty on which the two States may, if the need arises,
argue under the compromissory clause of that treaty from opposite stances
before the Court.
19. The number of bilateral treaties containing a compromissory clause
conferring jurisdiction upon the Court is minimal, as can be seen from the
fact that during the past 20 years only four such bilateral treaties have
been concluded (see I.C.J. Yearbook 1994-1995, p. 119), although the
immediate post-war period witnessed the conclusion of a fair number of such
bilateral treaties, of which the 1955 Treaty was one. This may perhaps be
explained by the consideration that few States are willing to risk giving an
expansive scope to the exercise of the Court's jurisdiction by reason of
consenting to the conclusion of a bilateral treaty providing for specified
rights and duties in their mutual relations. The referral of disputes under
the compromissory clause of a bilateral treaty has been far less frequent
than referrals under the optional clause or even under the compromissory
clause of a multilateral treaty. In fact, throughout the history of the
Court, there has been no single case in which the typical form of the
compromissory clause included in a bilateral treaty has been [p 898] invoked
as a main basis of jurisdiction, as I have already indicated (see para. 4).
(The Trusteeship Agreement of 1946 (of which Article 19 constituted a
compromissory clause) which was referred to as a basis of jurisdiction in
the Northern Cameroons case (I.C.J. Reports 1963, p. 15) may not be regarded
as a bilateral treaty in the ordinary sense.)
20. In conclusion, the compromissory clause of a bilateral treaty cannot be
deemed to give the freedom to one party to bring before the Court disputes
with the other party that may not relate specifically to the legal interests
(rights and duties) reflecting the object and purpose for which the treaty
was agreed by the two States. In the case of a bilateral treaty in
particular, the basic principle concerning the jurisdiction of the Court to
the effect that the jurisdiction is based on the consent of sovereign States
given on an ad hoc basis or in advance in one way or the other, should be
interpreted restrictively and not given any kind of loose interpretation.
IV. Concluding Remarks
21. The 1955 Treaty of Amity was concluded between Iran and the United
States, a treaty aimed at providing protection for the property and
interests of the citizens and companies of one party in the territory of the
other party, and which gives a mutual assurance of fair and
non-discriminatory treatment of nationals and companies engaged in
commercial, industrial and financial activities. It may be that a dispute
may arise between the two States as to the "interpretation or application"
of any particular provision of the 1955 Treaty of Amity, in the event that
the right of an individual or a company of one party protected by the Treaty
in the territory of another party is violated by the other party, or that
the Government of one party fails to perform its obligations to an
individual or a company of the other party as prescribed in the Treaty. If
the dispute is not "adjusted by diplomacy" between the two States parties
(certainly after the exhaustion of local remedies), a unilateral application
by one party may be filed with the Court by virtue of Article XXI (2) of
that Treaty. However, whether the dispute described in the Application filed
by Iran on 2 November 1992 is indeed the kind of dispute thus defined in the
Treaty is quite a different matter. The problem which faces the Court is to
determine whether the real dispute between Iran and the United States that
has arisen as a result of the latter's attack on and destruction of the
Iranian oil platforms in a chain of events that took place during the use of
force by both sides in the Iran-Iraq War is, as Iran alleges and the Court
concludes, a dispute as to the "interpretation or application" of the Treaty
within the meaning of its Article XXI (2). In my view, this is certainly not
the case.
22. Assuming that the attack on the platforms or their destruction (or [p
899] the use of armed force in general) had become a subject of diplomatic
negotiations between Iran and the United States which had failed, that
attack could not be seen as falling within the scope of the 1955 Treaty for
reasons which counsel for the United States called "a lack of a reasonable
connection" and, as I see it, is by its very nature irrelevant to the scope
of the Treaty. The United States had certainly not intended (and no State
may be prepared to intend) to confer jurisdiction upon the Court to deal
with such a dispute simply by having concluded such a treaty. The Court is
at present required to ascertain whether the particular action of the United
States was of the kind which really fell within the scope of the Treaty, or,
more particularly, affected the legal interests (rights and duties) of Iran
which were meant to have been protected under the 1955 Treaty.
23. In my view, Iran is not competent to refer to the Court unilaterally,
by invoking the compromissory clause in that Treaty, a dispute going beyond
the interpretation or application of the provisions of the bilateral 1955
Treaty of Amity and turning upon the scope of the Treaty. Certainly a
dispute created by the destruction by the United States' armed forces of the
Iranian oil platforms can be subjected to the Court's jurisdiction by other
means, i.e., by a joint submission (a special agreement) or, by the
application of the rule of forum prorogatum in the event that the United
States should subsequently agree to accept the Court's jurisdiction. In fact
the United States has raised an objection to the Court's jurisdiction in
respect of the Iranian Application.
24. While rejecting Article I of the Treaty of Amity as "a basis for the
jurisdiction of the Court" (Judgment, para. 31) and Article IV (1) as "the
basis for the Court's jurisdiction" (ibid., para. 36), the Court holds the
view that "[the] lawfulness [of the destruction of the Iranian oil
platforms] can be evaluated in relation to [Article X (1)]" (ibid., para.
51) and
"[i]n the light of the foregoing, the Court concludes that there exists
between the Parties a dispute as to the interpretation and the application
of Article X, paragraph 1, of the Treaty of 1955; that this dispute falls
within the scope of the compromissory clause in Article XXI, paragraph 2, of
the Treaty; and that as a consequence the Court has jurisdiction to
entertain this dispute" (ibid., para. 53).
Iran has brought the present case to the Court in the hope that the Court
will find that the United States had breached several obligations under the
1955 Treaty and international law, and has contended that "the Court has
jurisdiction under the Treaty of Amity to entertain the dispute"
(Application of Iran, p. 12; emphasis added). The Court now responds that
"it has jurisdiction, on the basis of Article XXI, paragraph 2, of the
Treaty of 1955, to entertain the claims made by the Islamic Republic of [p
900] Iran under Article X, paragraph 1, of that Treaty" (Judgment,
dispositif para. 2; emphasis added).
25. The way in which the Court responds to the Iranian Application in this
Judgment derives from a misconception. The Court was requested by Iran to
adjudge at this stage that it has jurisdiction under the Treaty to entertain
the dispute occasioned by the destruction of the platforms by the United
States force, but not to entertain any claims made by Iran under any
specific article in this case Article X (1). In my view the conclusion
reached by the Court is unjustified because the Court should not have
interpreted each provision of Articles I, IV (1) and X (1) as providing a
basis for the jurisdiction of the Court but should rather have determined
that a dispute if any such exists between Iran and the United States
arising from the attack on and destruction of the Iranian oil platforms
falls within the purview of the 1955 Treaty of Amity.
26. Failure to dismiss Iran's Application in the present case invites a
situation in which a State could, under the pretext of the violation of any
trivial provision of any treaty containing a compromissary clause,
unilaterally bring the other State party to the treaty before the Court on
the sole ground that one of the parties contends that a dispute within the
scope of the treaty exists while the other denies it. This would be no more
than the application of a form of false logic far removed from the real
context of such a treaty, and constituting nothing short of an abuse of
treaty interpretation, so that "the Court might seem in danger of inviting a
case 'through the back door'" (see my separate opinion in the case
concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), I.C.J. Reports 1984, p. 472).
(Signed) Shigeru Oda. |
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