12 December 1996

 

General List No. 90

 
     

international Court of Justice

     
 

Oil Platforms

 
     

Iran

 

v. 

United States

     
     
 

Judgment

 
     
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BEFORE:

President: Bedjaoui;
Vice-President: Schwebel;
Judges: Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Aranguren;
Judges ad hoc: Rigaux

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1996.12.12_oil_platforms.htm
   
Citation: Oil Platforms (Iran v. U.S.), 1996 I.C.J. 803 (Dec. 12)
   
Represented By: Iran: Mr. M. H. Zahedin-Labbaf, Agent of the Islamic Republic of Iran to the Iran-United States Claims Tribunal, as Agent;
Dr. S. M. Zeinoddin, Head of Legal Affairs, National Iranian Oil Company;
Mr. James R. Crawford, Whewell Professor of International Law, University of Cambridge, Member of the International Law Commission;
Mr. Luigi Condorelli, Professor of International Law, University of Geneva;
Mr. Rodman R. Bundy, avocat a la Cour d'appel de Paris, Member of the New York Bar, Frere Cholmeley, Paris, as Counsel and Advocates;
Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A., Whewell Professor Emeritus, University of Cambridge;
Dr. N. A. Mansourian, Legal Adviser, Bureau of International Legal Services of the Islamic Republic of Iran;
Dr. M. A. Movahed, Senior Legal Adviser, National Iranian Oil Company;
Dr. H. Omid, Legal Adviser, National Iranian Oil Company;
Dr. A. A. Mahrokhzad, Legal Adviser, National Iranian Oil Company;
Mr. David S. Sellers, Solicitor, Frere Cholmeley, Paris;
Ms Loretta Malintoppi, avocat a la Cour, Frere Cholmeley, Paris,
as Counsel;

United States: Mr. Michael J. Matheson, Acting Legal Adviser, United States Department of State, as Agent;
Dr. John H. McNeill, Senior Deputy General Counsel, United States Department of Defense;
Professor Andreas F. Lowenfeld, Rubin Professor of International Law, New York University School of Law;
Mr. John R. Crook, Assistant Legal Adviser for United Nations Affairs, United States Department of State;
Dr. Sean Murphy, Counselor for Legal Affairs, United States Embassy, The Hague;
Mr. Jack Chorowsky, Special Assistant to the Legal Adviser, United States Department of State;
Commander Ronald D. Neubauer, Judge Advocate General's Corps, United States Navy, as Counsel and Advocates;
Mr. Allen Weiner, Attache (Office of the Legal Counselor), United States Embassy, The Hague as Counsel.

 
     
 
 
     
 

[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.

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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.
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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.

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FN3 Sir Hersch Lauterpacht, The Development of International Law by the International Court, 1958, p. 239.
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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.

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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.)
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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.

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FN5 See Corpus Juris Secundum, Vol. 29A, 1965, pp. 442 ff.
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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?

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FN6 See Georges Abi-Saab, Les exceptions prιliminaires dans la procιdure de la Cour internationale, 1967, p. 246.
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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

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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.
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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

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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.
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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.

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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.
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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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