INTERNATIOCOUROF JUSTICE
PLEADING,RAL ARGUMENTS, DOCUMENTS
CASE CONCERNING UNITED STATES
DIPLOMATICAND CONSULAR STAFF
IN TEHRAN
(UNITESTATESOAMERlCAWIRAN)
COUR INTERNATIDEJUSTICE
MEMOIRES,PLAIDOIRIESET DOCUMENTS
AFFAIRE RELATIVEAU PERSONNEL
DIPLOMATIQUE ET CONSULAIRE
DES ÉTATS-UNIS À TÉHÉRAN ORALARGUMENTS
MINUTES OF THE PUBLIC SITTINGS
heldarrh~Peuce Palace, Thr Hague,
from 18ro20 Marck and o14 May 1980,
PrcsirlenrSir HumphWaldockpresiding
PLAIDOIRIES
PROCES-VERB AEUSAUDIENCES PUBLIQUES
fertunupulaisde/a PaixiLa Haye,
du 1au 20mur3ciic 24)nu1980,
souslaprésidende sir HumphreWaldock, Présifen THIRD PUBLIC SITTING(18 11180, 3 p.m.)
Preseni: Pr~sidcSIRHumphrey WALUOCK; Vice-PresideELIAS Judg~s
FORSTB R ,OS,LACHS M, OROZONVA, GENDR Sr~cn,RUDA M,OSLER TARAZI,
OIIA,AGO, EL-ERIAN S,ETTE-CAMAW UAAXTER RegisfruAQUARONE.
For rhe GovernineoftheUniieclSfutci,America:
Thc Honorable Roberis B. Owen, LegalAdviser, Deparimentof State, as
Agent;
Mr. StephenM. Schwebel,Deputy Legal Adviser, Departmentof Statc, as
Bcpu!y-Agen! und Cnunsel;
Mt-. Thomas 1.Dunnlgai~,Chargi: d'Affaiai.,Embassy ofthe United
Siatesof ArncricclDcptity-Agent;
Mr. David 1-Small,Assisiant CegAdviser,Departmentor State,
Mr. TcdL. SLein,Attorney-Adviser,DepartmenofSiate,
Mi-.HughV. Simon,Jr., Second Secreiary,Embassy of the United Statesof
America,asAdvlirers. OPENlNG OP THE ORAL PROCEEDlNGS
Tkc PRESIDENT: The Court mets today to hear oral argument on the case
concerning Unitcd Sta~cs Oiplornotiund CocinsuiuS~uff in Tehranbrought by
the United States of America againsi ~heislamic Republic of Iran. The case,
which concerns a sequencc of cvcnts heginning on 4 Novcmbcr 1979in and
around the Unitcd States Embassyin Tehrün, involvingthc ovcr-running of the
cmbassyprcmiscsand the seizurcand dciention of United Stiatcsdiplornatic and
consular slaff, was begun by an Application (see pp. 3-8, supra) filed on 29
Novcmbcr 1979.In thai Applicakion,ihe United States Govcrnmeni daims to
round the jurisdiction of fhe Court on the Vienna Convention on Diplornatic
Relations of 1961and Article 1of the Optical Protocol thereto concerning the
Cornpulsary Settlement of Disputes; the Vienna Convention on Consular
Relationsof 1963and Articlc Iof thc Optional Protocol thcrcto conccrningthe
Compulsory Scitlcmcnt of Disputes; ArticlXXI, paragraph 2, of a Trcaty of
Amity, Economic Relations and Consular Rights of 1955between the United
Statcs of Americaand Iran,and Article XIII, paragraph 1,of the Convention of
1973 on the Prcveniion and Punishmeni of Crimcs against It~tcrnationally
Proiected Persons,inçludingDiplomatic Agents.1t ïorrnulates a numher of legal
clairnsand askçthe Court to adjudge and declare thai the Government of Iran,
in tolcrating, cncouraging and failing to prevent and punish the conduct
describcd in thc Application, violatcd itsintcrnational legül obligations to thc
United States under the provisions ofa numbcr of intcrnattonal ~reaticsand
conventions; that the Governrnent or lran is undcr a particular obligation
immediatelyto secure thereleaseof al1United Siatcs nalionals currcntly bcing
detained and to assure that they are allowed Lo leave Iran safely; that zhc
Government of lran shauld pay reparation for the alleged violationorIran's
international legalobligations; and that fhe Government of lran should suhmit
iciits competent authorities for the purpose of prosecution the persons
responsiblefor the crimescommitted against Ehepremisesand staH'ofihe United
States Embassy and Consulates.
! On 29 Novcmbcr 1979,the day on which the Application itsclf was filcd,thc
Unitcd States of America submititeda Request for the indication of provisional
rneasures(seepp. 1!-12, supra), and aftera pubkiçhearing on 10 December
1979, the Court, by an Order dated 15 Decernber 1979', indicated certain
provisionalrneasurespending finaljudgment in the casc.
&yan Order daied 24 Decernber 19792,iirne-lirnitswerefixcdTorthe written
proceedings. The Memurial (sec pp. 123-247, supra)of thc United Statcs al
America was bled wiihin the allotted time-limii. The timc-limii fixcby thc
Order' for the Counter-Mernorial or Ihe Islamic Kepublic of Iran was 18
February 1989,"with libertyfor the Islamic Republic,itappoints an Ageni For
thepurpose of appearing before theCourt and presenkingits observations on the
case, to apply for reconsideration of suchtime-limit"No Çounter-Mernoria!
was filcd by the IslamicRepublic of Iran, and no requestwas made by it for
recansideration of the time-limii.The written proceedingsthus became closeci;
and thc casc rcady for hcaring.
Thc fixingof the date for the oral proccedingswas dcfcrrcd for a short timc at OPENINGOF Tl-IEORAL PKOCEEDINGS 253
thc rcquest of the United Statcs'. Subsequently the Court, aficr consulting the
Unitcd Siatesl and giving rhc lslarnic Republic of Iran the opportunity of
cxptcssing its vicws, fixcd today as the date for the opening of the oral
proceedings,pursuant to Article:54 of the RuPcsof Court.
The lslarnic Kepublicof Iran has not appointed an Agcnt in accordance with
Article42of the Statiitcand Article40 of the Rulesof Court; nor has it exercised
ils right under Articlc 31 OFthe Statuteto choosc a judge ad hoc to sit in the
present case. During thc phase of the procccdingsdevoted to the Request of thc
Unitcd Stütcs for the indication of prov~sionalmeasures, a lcttcr üddressed to
the President oc the Court by ihc Iranian Government and datcd 9 December
1979was reçeived in thc Registry, the.text af which was made public at thc
hearing held on 10 Dtcember 1979(sec pp. 18-19, supra). Yesterday, on 17
March 1980a Turthcrcommunication wüs receivedby telex from thc Minister
for Earcign Affairsor rran, layingbefore the Court the vicwpointof the Islamic
Rcpubliç or Iran on similar lincs to those in its previous communicaiion of 9
December1979.1shallask the Regisirarto read out thecommunication receivçd
ycsterday.
Lc GREFFIER:
«J'ai I'honncur d'accuser rkccption dcs télégrammec soncernant !a rtu-
nion, lc 17mars 1980.de la Cour intcrnütionale de Justice, sur requêledu
Gouvernement des Etats-Unis d'AmErique,et de vous exposcr ci-dcssous
cncore une fois la position du Gouvernement dc la Rkpublique islamique
d'Iran à cet égard:
Le Gouvcrncmcni de la Républiqiicislamiqued'Iran t~entiexprimer le
rcspcct qu'il voue a la Cour intcrnütionale de Justice ei scs distinguks
membres pour I'Œuvrcpar eux accomplie dans la rccherçhe de solutions
justes ct Equitziblcsaux conflitsjuridiques cntrc Eiatsci à attirer respcc-
tucusemcn( l'attention dc la Cour sur les racines profondes ct l'essence
memede la révolutionislamiquede l'lran, révolutiondc toute une nation
oppriméecontrc Ics oppresseurs et leurs miiîtrcs, ci dont l'examen des
multiples rtipcrcussionsrelèveessentrcllemcntet directement de la souvc-
raineti:nation~zlede l'lran.
LeGouvcrncnienidelaRépubliqueislamiqued'IranestimequelaCour ne
pcut ct nldoit sesaisirde I'affaircqui lui estsoumisepar le Gouvernemeni
d'AmCriyue,et de façon Fartrkvclatrice,limitée a Ia soi-disant qucslion des
((otagesde I'ambassadcamEricaine i Téherann.
Ccttc quesiion, cn effet, ne rcprksentc qu'unCICmcni marginal ct scçon-
düired'un problkincd'ensembledoni ellenesaurait CtrcCtudiéc separément
ct qui englobeentre autres plus dc vingt-cinqans d'ingérencescontinuclles
par les Etats-Unis dans les aiTairesintEricurcs de I'lran, d'exploiiation
Ehontécde notre pays et dc multiples crimes perpétrkscontrc lc peuple
iranicri,crivcrscl contre toutes lesnormes internationales et humanitaires.
Leproblèmeen cause dans Icconflitexistant entre I'lrct lcsEtats-Unis
ne tient donc piis de l'interprétationct dc I'applicütion des traités sur
Icsquels se base la requEtc amEricaine, mais découlc d'une siiuaiion
d'ensemble comprenant dcs éIEmcnts beaucoiip plus fondümcntaux et plus
coinplcxcs.En conskquencc,la Cour ncpcui examinerla requëte américüine
cn dchors de son vrai contcxtc i savoir l'ensembledu dossier politique dcs
rçlations cntre I'lran et les Etats-Unis au cours es vingt-cinq annks.
En cc qui concerne la dcmünde de mesures conservatoires, tclle que
forrnulkcpar les Etats-Unis, cllcimpliqueen fait que la Cour aitjugé dc la
subçiancc meme de I'affaircqui lui esl soumisece.quc ccHe-cine saurait
' Scc 1.Ç.JKrporrs 1980,p 22.para.41 DIPLOMATIC AND CONSULARSTAFF
fairesans violer Ics normes qui régissentsa compétence,d'autre part, les
mesuresconservatoires étant pardéfinition destinées à protégerles intérêts
des parties en cause, cllcs ne pourraient avoiIccaractkre unilatéralde la
rcquEteprésentée par le Gouvernement américain.
Veuillezagréer,MonsieurIcPksident, l'expressionde mcssentiments les
plus distingués.
Téhkran,le 16mars 1980.
(Signé) Sadegh GIIOTBZADEH,
ministre des übircs étrangéres
du Gouvernement dc la République
islamique de I'lranib
The PRESIDENT: 1 note the presence in Court of the Agent and Counsel of
the Unitcd Statcs of America; as aIrcüdy menrioned, the Court has not been
notified of thc appointment of an agent for the Government of thc lslarnic
Republic of Iran, and 1 note thai no represcntatzve of that Governmcnt is
present in Court. 1nowcal1upon the Agent of the Unitcd States of America ro
address thc Court, and 1 would ask him in the course of his observations to
inform the Court of the viewsof his Gavcrnment on the matters rcfcrred to in
the letter from thc Iranian Gavernmeot which bas jus! been read by thc
Registrar. 1would also üçk him in the course OFhisobservations' toinfom Lhc
Court of the views of his Governmcnt on the following questions, of which 1
have given him prior notice:
1.Whcthcr theestablishmentor work of the commission of inquiry sentbythe
Secretary-Generalto Tchran affectsin any way thejurisdiction of theCourt to
continue the present proccedings or the admissibility or propriety of thcsc
proccedings.
2. Whether a Statemay havcan inherent right inanyextremecircumstancesto
overridc its obligationsunder the rulcsof diplomatic and consulürlaw to respect
the inviolabilityof diplornaticand consular personnel and prerniscs;and so in
what circumstanccs.
3. The Unitcd States in itsApplication and Mernorial has allcged the
complicity of the Iranian authoritiein the overrunning of its Embassy by the
demonstrators in Tehran and thc holding of ils diplomatic and consular
personnel ashosiages.If the Court were to sofind,what implicationswould thai
findinghavc in relationtoihe United Statcs'requesi in(hl (v) ofits kpplicaiion
that theIranian Governmcnt
". ..shallsubrnitoits compctcnt authoritieTor the purpose of prosecuiion,
or extraditc to the United States, thosc persons responsible for the crimes
committed against the pcrsnnnel and premiscs of the United Statcs
Ernbassy and Cansulates in Iran".
'SEC pp. 270-272,294-295and 307-308, rnfra. ARGUMENT OF MR. OWEN
AGENT 01:TlIEGOVERNME 0N:THE UNITED STATE SF AMEK~CA
Mr. OWEN: Mr. Prcsideni,distinguishcdMembers of the Court. My name is
Roberts Owcn. Once again 1 havc ihc honour to appear bcforc thc Court as
Agent of iheGovernment of the UnitedStates of Amcricain the caseconcerning
Uniied States Diplomatic and Consular Staff in Tchran. Aswe commence thc
present hearing, 1 should likeat the outset ~o ernphasize the cxtraordinary
importance of thc case which we will bc prcsenting to the Court today and
tomorrow.
1 start from the premisethat the parümount purpose of the Unitcd Natioas,
recited in the opcning words of the fisstparagraph of the firstarticle of the hrst
chapter of thc United Nations Charter, is lo maintain internaiional peace and
security. Similürly, ~hemaintenancc of peaceful relations among States is the
essentialfunclion or this Court and of those prinaplcs of international law
undcr which naiions conduct thcir diplomatic relations. To the exteni that a
Stlileusesforceto assault ihe mechanismsof peaccfuldiplomacy, it strikethc
lugular of the entirc sysicrnby which the world sceio maintain the pcüçe.
Theseprinciplcshave been so uniformly recognixd that for Iitcrüllyceniuries
no Staic has used forceagainst the diplomatic envoysand embassiesof another.
Ocçasionallyrebelliouspolitical groups or indlviduals have assaulted embüssics
and diplomats, but governrnentshavenot. For centuriesinternationül wars have
comc and gone, but by universalagreementembassiesand thcir diplomaticstaffs
hüvc been regarded as inviolable [rom officia1inierfcrencc tbrough ~heuse of
forcc.
That grcat trüdition or recognizsng and honouring the inviolability of
embassiesand diplomats hasnow hccn shattcred Torthe first timc in modern
history.On 4 November 1979,as this Court is well awarc, ihe United States
Embassy in Tehran, and morc than 60 of iis personnel, were forcefully seized
wiih lhe co-operation and endorsement of tlic Government of the Eslarnic
Republic of Iran. Morcover, (his shatteritig iittack upon the mechanisms of
peaceful relations among naiions was not a temporary aberration for which
apology and rcparation were quiçkly made; thc captivity of 53 Amcrican
dlplomatic agcnts and siaff has continucd under the officia1auspices or the
Iraniün Government for four-and-a-half months. 1tsecms,to me at least, hard
to bclicvc,but Ihç aitack on thc AmcricanEmbassy in Tehran occurred more
ihan one-third of ü year ago, and 53 of my counlrymen are still hcld in
precarious captivity a1 srand before ihe Court today.
During ihese hcarings, as thc Court Iistcnsto the argument of the Govern-
mcnl of Lhc United Statcs, 1 would respectfully requcsf tbat the Court
coniinuously bcar in mind the implications of thc Iranian conduct in terms of
the cause OFworld peace and thc cause of fundamental human rights and
Freedoms.Considcr, ifyou will,what would happcn tu (herabricof internalional
relations if this Court and thc world comrnuniiy were to exhihit any dcgrcc of
iolcrance Forwhat thc Iranian Government hasdone and continues to do. Such
iolcrance would promoic rcpetiiron, and rcpetition would lead tragically, to thc
unravcllingof orderly international relations. It 1sfor ihis reaso1subrnit,
vcry scriowsly,ihat in this case the Court hasa cornpelling responsibility to
condernn, in the inosl scvere lems, thc course orconduct which has been
pursued by the tslamic Republic of Irün and thus to creatc the maximum
deierrent agtiinst ils repetitiori by any çounlry in any part of thc world.256 DIPLDMATICAND CONSULAR STAFF
ORDER OF PRESENTA'I'IÇ~N
I should likenow to explainthe ordcr in whicwe propose to present our case
to thc Court. At the outset1 propose to rcvicwtlie factual events which have
occurred during the four-and-a-half rnonths that the Amcrican hostages have
been heldin cüptivity in Tchran. At the hearing which ihc Court held on the
ienth of December, we dcscribcd a number of the relevant events, but in ~hc
ensuing threemonths Lherehavç ernergcda numbcr ofadditional factswhicharc
plainlyrclcvantto our caseon the rnerits,an1 wuuldbc glad of an opportunity
to present thcm to the Court.
Thereaftcrwcwould appreciateit if ihe Court would hcar from rnycolleague,
Mr. SLephenSchwebel,who appears as counselin the case. As the Court may be
aware, Mr. Schwebçlisa mcmbcr of the Internaiional Law Commissionand the
Depury LegalAdviscr of thc United States Deparlment or Stalc. Mr. Schwcbel
willdevclop our argument to thc effect that the current dispute bctwccn thc
United States and Iran hlls squarcly witbin thc jurisdictior the Court and
that thereisno valid reason whythe Court should not proceedto adjudicate the
claimscurrently being presented by the Unitcd Statcs.
Following Mr. Schwebel'spresentation, 1would zipprcciateit if the Court
would allowmc to resume theargumentand ro dcvclop,in additional detail, the
specifc substantive claims advanced by the United States as against Iran. 1
would propose io include wiihin that discussion apoint which, in our view,
dcscrvespürticularattention-namely, that althoueh thc United States Ernbassy
in Tehran was originüllyseizcdby a rnob of people who did noi purport to bc
agents of the Government oflran, in fact the mob receivedalmost immediatc
support and endorsement from the Goveramcnt and have sincebeen operating
with the authorization of the ChieforSlaieof thc IslamicRcpublicor IranAs a
result,as1shallexplaininmoredetail, theGovernmcnt of lran isintetnationally
responsible for al1of thc conduct upon which the United Stales claims in this
case are based.
In thecourseof describingtboscclaims 1shall also observethat, alihough thc
Government of Iran has suggestedihai it has gricvanccsof various kindsagainst
thc United States,noneof thosegrievanccshas bccnprcsentcdto this Court, and
nonc can be treated ashaving any rclcvünccwhatcvcr to thcsc procccdings No
such alleged grlevance can be allowed io interfcrewith or detract from the
pending daims OFthe United Statcs.
Finally,Ishall dcvclop our contentions as to the relierwhiwe seek in this
Iitigation. In essence,we seeka series of declarations which will conclusively
establiçhto al1withinthe inierna~ionalcomrnunirythat the tiovernment of Iran
has commitied gross violations of iis international obligations to the United
Statcs and that it is bound to putn end to the present unlawful situation.
Weals~ seeka declaration to the elïectthat Iran's unlawTulconduct has given
rise Loan obligalion to make rcparations to the United SLatesof Amcrica.As
indicated in our Mernorial,the déterminationof the amount of damage rha~is
duc to the United States musi DCC~SM~~~ bc postponed until Iran's on-going
unlawful conduct has been brought to an cnd, but it is neverthelessimporianf,
for reasonswhich 1 willsubsequcntlycxplain,that the Court now aRrm that the
Unitcd States is entitled to reparaiion in an amount to be subsequcntly
detcrmincd.
This is the order in which weintend to procccd, with the Court's permission,
and atthis iimc1 should like to turn to thc esscnrial facts:
As a preliminary matter i should make one comment about the ractual
sources upon ivhiçh we havc had to rcly in formulating our claims. Sinçe the
Unitcd States national5who would normallybe supplyingthe relevant informa- ARGUMENT OF MX. OWEN 257
I
tion to the UnitedStatesGovcrnmcnt are nowin captivity,al1normal sourcesof
information have been completclyunavailableto us throughout the crisis,and io
a very large extentWC have had to rely on prcss rcporlsof actions iaken and
stütcrncnls made hy the Govcrniiicnl of Iran. Under some circumstanccs of
course isolatcd prcss rcporis may bc of qucstionablc rcliabiliiy, but the cvcnts
that haveoçcurred in Tehran ovcr thc last.rour-and-a-half manths havc been so
drarnatic ihat ihey havcbccn covercd by amultitude of rcportcrs whosereports
aresubstantially unanimous asto the essentialfacls, givinga clear indication of
substantial rcliiibility.In any even:ito niany or the events in thestory, thc
prcss reports are al1that wehavc-nol through any fault of the Govcrnrneni of
the United States, but as a direct resuli of the unlawful conduci of the
Govcrnmcnt of Iran.
The fact lhat thc Respondent in this casc is rcsponsible for degriving us of
dircct proofof oui-allegaiions,1rcspcctfullysubmit, entitles the Unitcd S~ates
herc to rclyupon the principle laiddown by thc Courtinthe CorfuChannel casc.
There ihc Court took note of the predicament or a Siate which has bcen niade
the victimof a brcaçh orinternational law and whichfor ihat reason isunablc to
obtain dircct proof or lis daims. The Court stazedas follows:
"Such a Stüic should be dlloweda morc libcrülreçourse to inrerenccsof
ïact and circurnslanlial evidence.This indircci çvidenceis admiited in al1
systemsof law, and its useis recognizedby international decisions.It must
bc rcgürdcd as or specialweighiwhcn it is bascd on a seriesof facts linkcd
togethcr and leading logicallyto a singleconclusian."
That stiitcmcntappears in I.C.J.Reports IY4Y, al page 18.It isour submission,
of course,thatthe infercnccsof fact and circumsiantialevidcnccupon which the
United States 1sentitled to rely here overwhelminglydcmonsirate multiple and
flagrant v~olationsof international law by ihc Govcrnmenl or Iran.
1should notc also that many of the hcts io which 1willgivespecialemphasls
during my ürgumcntare rcferrcd to in our Mcrnorialwith appropriiitc citations
tothc sourccmaterials. When 1refcrto a Factwhichcould not bc includcdwithin
our Mcrnorial, 1shall be relyingupon the supplemenial documcnts1 which the
Court has given us permissionto submit.
Turning to the racts1proposc to start with one briefcornmcnton ~hepolitical
struciurcwhich has enisted within the Siate of Iran throughout the relevant
penod. Asthe Court isaware,the IslamicRevolutionin Iran began in iatc1978.
Thc rormcr Shah Ieft thc country, and the reins of'powcr thercupon came into
thc hands of the Ayatollah Khomcini Wilh greai rapidity thc Ayatollah
establishcdhirnscli'as thc clefuctn Chiefof Statc, and hc bas hccn, withoui any
question,the supremepoliticnl iiiithorityin [tan ever sincethat tiinc. Through-
oui the period with whichthis case 1sconccrncd the Ayatollah Khameini has
bccn in dircct control of thc Iranian Arrned Forces; hc has rcccivcd roreign
envoys, acccptcdresignatinns of psimc mi~iistcrsand çiiher officiaisdelcgazcd
aulhorily to the Revolutionary Council, and in general cxcrciscduliimaie
çontrol over al1important governmental decisions. To date the Ayatollah and
his immediatecollcagucs haveadmittedly bcen opcraling as an interim govern-
ment, butundcr theconstitution ivhichwas formallyaciopledin December 1979,
the Ayatollah willcontinue tobe the suprcmcauthority in the politicalstructure
or Iran. Indecd. although Mr. Bani-Sadr has now been elected Presidcnt,
Principlcs5, 107and 11Oof the Iraniün Constilution expresslyplaccthe ultimütc
powcr to govern in the hands of the Aydtollah Khomeini, who is idcnt~fiedby
'Scc pp. 331-462ifdia. 258 DIPLUMATICAND CONSULAR STAFF
namc in thc Constitution, and that constilu~ionalarrangement will obviously
continue in forceeven aftcr thc iilstallaiianewlegisla~urein April or May
Iishould be emphasizedaddikionallythat the Ayatollah'srole is not titular, as
'dernonstratcd by additional rads which 1 shall describe in a moment, thc
Ayatollah Khomcinicnjoys ultimate power of decision ovcr the entire govern-
mental apparatus and ovcr the so-called militant students who have been
holding the American hostages in captivity for so long. Against that political
background I should like now to turn to the autumn of 1979,when the slory of
this &se begins.
Beforedescribingwhüt happcned on 4 Novernber 1979,ihe date of the actual
seizureof the Amcrican Embassv. 1should likc lo refcr to two si~nificanlevents
which oçcurred kforc and aftir 4 November. Thc two dates;nvolved are 1
November 1979,thrcc days before the attack on ~hcEmbassy, and 1January
1980-alrnost Iwornonths aftcr the initialattack.The Iwo dates have something
incommon: oneach an Iranian rnobthreaiened to amck aForeignembassy,and
on each theGovernment ofIran toak effectiveaciion and proteetcd the embassy
in question.
Let me begin with E November 1979. Four days previously the Ayatollah
Khumcini had deliveredan inflammaiory spccch sayingin effectihai aor the
problems ofIranstcmmcd fromAmerica, and, in ihe next fcwdays, the United
StatesEmbassy in Tehran heard rumours that a mass dernonstration in ttlc
vicinity of the Embassywas planncd for 1 November. On the morning of I
Novcmbcr the people in the Embassy look stock of the security situation and
concluded lhat thcrc were a sufficieninumber of Ininian police in the area to
deal withthe planncd dçrnonstration, and, in that conclusion, theywerecorrect.
At one point during the day there wereas manasfivcthousand demonstraiors
marching back and forth in front of the Embassy, but the Chicf of Police was
presentwith adequate forcesand thc Governmentkept theentire situation under
complcte control. We think it is indispu~üblcthat on 1November the Govern-
ment ofIran recognizedits dutto providecornplcteprotection for theEmbassy
and al1thosc within its walls,and on daytthcGovernment of Iran rulfillcdits
duty in a complctclysatisfactory way.
Exactly ihe samc phcnomenon occurred two months later, although a
diferent embassy was iavolved. On I January 1980 a large mob physically
aitacked ~heTehran Ernbassyof the SovietUnion, but, again, the securityforces
of the Iranian Governmeni wcrc on hand to prevent irs stizurzRegrcttably,
khoscforccswerc unabte to prevent ihe defilementof a Sovictflag, butnews
films of ihe aitaor 1 January, as wcllas the films ofa secondatlack on tlic
Soviet Embassy un 3 January, graphically portrayed the sccurity forces of the
Govcrnment of Iran protecting the Embassy prcmises.As 1shall indicdtin a
moment, Lhccvcnts of 1 November and I and 3 January stand out in dramatic
contrast with the evenis which began to unfold on 4 November 1979.
TIIEATTAC KN THE EA~ASS YND TIlEIRANIAN GOVBHNMEN RTSPONSIBILITY
At this point in thcscproceedingsthe Couisccrtainlyfamiliarwith the story
in general ternis. It has bccn told in the ApplicaiionWChfilcdon bebalFor
the United Statesii wasamplifiedin our Requesi for Provisional Mcüsuresand
inthe Oral Argument which we prescntcdIOthe Court on 10Decernbcr,and it
has bccn laidout in considerabledetail in thc Mernorialwhich wesubrnittcd on
15 January. Ncvcrtheless,1would like to touch bnefly on some of the more
important facts wliich have particular slgnificancc in the contexor thesc
proceedingson the rnerits.
First of all, the evidencernakcsclear that the Govcrnmcnt of Iran, including
the Ayatollah Khomeini,either knewor should have knownin advance thaz the
United States Embassy was going Lobc üttackcd by an organized group of ARC~UMENT OF MR. OWEN 259
people whoclaimto bc iinivcrsitystudcnls. In the precedingdaysthe Ayatollah
had made 11nurnbcr of spcechcscalling for anti-Arnericandernonstrations, and
thc studcnts have sincc publicly procIaimed that when ihey attackcd thc
Ernbassylhcy ivereacting in responseto the Ayatollah'scal1to "intcnsify thcir
atlacks againstAmerica".
Moreover, the studenis havc rcccntly rcvcalcd that prior to thc atrack they
consiilicd witb a man namcd Masavi Khu'ini, an oficial of the Iranian
Govcrnmcnt's broadciisting organizaiion. They wanted to know whether the
proposed attack wouldbe consistentwlth thc policy of the Ayütollah Khorncini
and he confirrned that it would. Morcovcr, Mr. Kho'ini then contactcd Mr.
Go~bzadeh-then in charge or lranian broadcasting and now the Forcign
Ministerof Iran-io urge himto support the attack whcn it occurredand, as wc
know, that support wasgivcn.Allof thcsc factsarc sclforth in our Supplemen-
ta1Documents Nos. 18 and 1I1 (pp. 340-342,and 416-419,infra). In addition;
the son of the Ayatollah Khorncinihas statcd thüt before the attack hcwas in
touch with thc attackcrs, ülthough hc hüs süid Ihat hc did noknow an attack
would actually bc made.
On I Novcmbcr, as 1 iiicntioncdcarlicr, Lhcpoliceauthorities werefullyaware
lhat in thüt pcriod thcrwüs a veryrra! danger that the curreni dernonstrations
in the Einbiissyürcii might lcad ro an atiack and the police had demonstrated
through thcir actionsor 1November that they had the abilityto deal with and
ihwari üny suçh attack iTthey wished to do so. The simple fact 1sthat on 4
Novcmbcr, when an attack aciuatly occurred, theyevidentlymade a deliberate
choice no! to do ihcir duiy.
On 4 Novcrnbcr ihcrcwas ü demunstraiion of approximately 3,000people in
front orthe AmericanEmbassy.The sizeof fhecrowd wasnot unmanagcablc;it
was substantially smalrcrthan the crowds of 5,000 and more than thc Irüniün
security rotces had previously demonstrated their abili~yto control. But, 4
November theyevidently dccidedto star out of thc wüy. Thc relalively small
group which carrled out thc assaiilt on thc Amcrican Embüssy was hardly a
formsdable inilitary forcc,and, yet, according to eye-witnesses, the lranian
sccurity pcrsonnclstationcd in the arca simply "faded" from Ihe scene. Since
thai wascxüctlytheopposite of~hcconduct whichthey had displayedduring the
much largcr dcmonstration of three days berore, it is harto believe,1suhmit.
that thcir mystcriouswilhdrawülrcsulted from anything other than a deliberate
politiçal decision by their superlors.
This Iastconclusion is supportcd by the dramütic cvcnts which followed. As
saan as the attack hegan, responsiblc oficials in the Ernbassy began tu make
repcatcd calls for help to the Iranian Foreign Minislrand al1suçh çalls wcre
ignored. ResponsibleIranian oficials iverecertainlyawarc of the nccd Forhclp.
It happcns thatthc AincriciinChargk!éd'AFaireM s,r Bruce Caingcn,wasat the
Forcign Ministry ai the tirne of the attack and hc mndc rcpcatcd, urgent and
pcrsonal appcals to thc Iranian Foreign Minister seeking Government assis-
tance. Although ample security forceswcrc availablc, absolutcly nothing was
dotic to prcvcntthc altack frcirngoing forward and succeeding.
Morcover, thc dclibcratcncssof thc dccision to allow, and indccd encourage,
thc attack is made clear by yet another significantevent. 11appears that, as a
result or the repeaied Arnerican rcquests For assistaixx; spccificordcrs wcrc
actually givcn to an officia1security forcc known üs "The Rcvolutionary
Guards". According 10 a subscqucnt ufiçial slalerncnl, as reflected in our
Mcmorial at p. 194,sti/>ru~hcRcvoJutionaryGuards were actually ordered to
procccd to thc Embtssy immcdiately,but, instead of beingordered to terminaie
thc attack which was ihen going on or to clear ihe Embassy grounds of
intruders, thcy apparently were ordered to protect the aitackers. Aocording to
thc statcmcni 10 which 1 have just referred, the students latcr thankcd the
RcvcilutionaryGuürds for thcir support in tnking posscssion of thc Embassy.262 DIPLOMATIC AND CONSULARSTAFF
supra, the Ayatollah Khomeini confesscd that "probably not a day passes"
without such messages from third couniries being rcçcivcd by the Iranian
Foreign Ministry.
IRAN'SUSE OF THE HOSTAGE FSR POL~TICC ALOERCION
Thus hr in my argumcnt I have ernphasized four basic Tacts:first, thai Lhc
Government of Iran veryclearlywas awürc that it had an obligation io protect
the American Embassyand its diplornaticpcrsonnclfrom thc mob; second, that
it had the capability of doing so; third, thai the Govcrnrncnt of Iran made an
apparcntly deliberate politicalecision that shc Embassy and its personnel
should bc scizedand irnplementedthai decision not onty by Ming io providc
protcciivcsccurityforccsbut by scndingin the Revolutionary Guards to cnsurc
ihat ihe invadcrs would succced intheir mission;and roeirthly,that the Unitcd
Stasesrcactcd promptly, peacefully,and constructivelyio thosc evcnts. At this
point,then, 1would likc to turn to another aspect that 1have touched UpQnbut
not yet emphasized-namely, ihat thç Government of Iran, once it had
accomplished the capture of the Amencan hostagcs, dccided to use those
hostages as a political instrument for coercing the United States into taking
specificpolitical actions dcsired by the Iranian authoriries.
As the Court is awase, various difîcrent kinds of political action have been
demanded hy the Itanians during thc crisis but üt thc beginningof the dispute
thc singlemost hasicdemand was that the United Siatcs scnd thc former Shah
back lo Iran for prosccution.As early as 7 Novernber ~heAyatollah and thc
studcntsbcgan to dcmand ihccxtraditron of the Shahand the same dcmand was
echoed ai cvery leveof thc Iranian Govcrnment. On 7November for cxamplc.
in discussingthe question whether Mr.Clark would be reçeived by the Iraniafi
Government, ihe Ayatollah Khomeinideclaredthat the return of the Shah wasa
precondition noi only Torrelease of ihc hostügcs but for the rnere opening of
discussionswiththe United States.Asstaied two dayslater on the Tehran radio,
thc Ayatollah was absolutely firm in the position ihat until thc deposed Shah
had bccn cxtraditcd, thcrc could be no negotiations wiih the American cnvoys.
ThThc efirtsioortrhc Iranian Governmenthattoacoerce ihesGovçrnmenl of lhe
Ayatollah Khomeini haddccided thatresccrtain fcmale and black hostages then
hcldcaptivein the American Embassyshould bc rcleascd,and on 17Novernber
the Ayatollah issued an officialdccrcto that effectwhichwas hroadcasi civer
the Tehran radio, as indicaied at pages 199-20supra,of OurMcmorial. In thc
decrec itwas staied cxplicitlythat oncc the specifiedhostageshad been released
the remaining Ameriçanhostageswould beheld undcr arrcst uniil the Amerlcan
Govcrnment had returned the Shahio Iran for trial and had reiurncd al1of the
weaith that he had allegcdlyplundcrcd.
1 subtnit thai the Iranian Deçree ot"17 Novembcr, as set forth at pages
199-200, suproiofour Mernorial,isa unique documcnt in thc history of modern
intcrnütionalrclatiotis, and quite appalling in its implications. In that otficial
prQnOUII~mCnt1 he Government of Iran not only confirmedits rolc in bringing
about and cndorsing thc scizure of the Embassy and rhe hostagcs; it iilso
confirmedihai the Iranian Govcrnmcnt it~ctfwas holdingdiplornaticpersonnel
captive in an attcmpt to bring about dcsired political action. As I shall
subsequenilyexplainwhen Iaddress the mcritsof our claims,1sthe positionof
the United Statesthat the conduct or the Iranian Govcrnmcnt as cxemplifiedin
the deçree of 17 Novcmbcr in a vcry real sense constituted compound or
multiplied violationsof international law: the Government oIran violatcd ihe
law when it fafled to protect thc Embassy and the American diplomalic
personnel; it compounded that violation when it supported and endorsed the266 DIPLOMATlCAND CONSULARSTAFF
THEU~r+re~ STATEE SFFORT IS TI.IICOURT
Throughout this period, in thc months of Novcmbcr and Dcccmbcr 1979,thc
United States Government continucd its efforts itoachicvc a rcsolu~ioor ~he
dispute through pcaccfulmcans,and for presen(purposes the mosi importani of
those eîforts was ous institution of the psesent proceeding beforethis Court.
When we iiled our Application on 29 Novembcr WC bad in mind two diffcrcnt
kinds of commitmcnts prcviously made by thc Govcrnmcnkof Iran. First, in
cach of four difcrcnt trcatics, as citcd in our Application, Iran had rormally
acquicsccd in and bound ilself io the proposition thata dispute of the kind
prcscntcd hcrc1swithin the jurisdiction of this Court. Frankly we did not see
how Iran could make any plausibleargument that this dispute is not within the
jurisdiction of this Court, and in fact Iran has not done so. Secondly,at thc timc
we filed our Application we had in mind that as a metnber of thc Unitcd
Nations, Iran has formally undertaken, pursuant to Articlc 94, paragraph 1,of
the Charter of the United Nations, to complywith thc dccisionof this Couri in
any case to whiçh Iran rnight bc a Party. Accordingly itwas the hope and
cxpectation of thc Unitcd Statcs that ihc Governmcnt of Iran, in cornpliance
with its forma1comrniimenis and obligations, would obeyany and al1Orders
and Judgments which mightbeentered by thisCourt in the courseof thc prçscnt
litigation.
Theseconsiderations promptcd the Uniicd States;whenit filedits Application
on 29Novembcr,to filesirnuiianeouslya request Toran indication of provisional
measures. As hhe Couri is rully aware, we respecifully requested the earliest
possiblehearing on that request and the Court acknowledgcdthe grüvity of the
maiter by allowing both parties full argument on 10 Dcccmbcr.
The Court will recall that on thc day before the hearing Ihe Minister for
Foreign Anüirs of Iran made a forma1submission Lothe Court in the fom of a
lcttcr transmitlcd by tclcx.Although wewillhave moreto sayaboui the letter of
9 Dccemberat alater point1 should like to note now two significantaspects of
that leiter. My first point appears in the firstparagraph of the letter, and indccd
in the first sentcncc of that parügraph, which 1should likc toquotc:
"First of all, the Government of the Islamic Rcpublic of Iran wishcsto
cxpress itsrcspcct for thc Intcrnaiional Cour1 of Juslice, and for its
distinguishcdMcnibcrs,Cor what theyhave üchicvcdin the quest ofjust and
equiiüble solutions to legal conflicts bctwccnStates."
Again, that seemcd to us to bc a good sign in terrOF the likelihood that lran
would obey any Orders entered by the Court.
The second significantfcatrirc of ihc Irüniün lcttcr9oDecernbcr,I submit,
wüs the toial absenceorany legal or raciual argumentation to the effectthat thc
Iranian seizure of the hostags and the Embassy was Zawful.Although thc
Uniiçd StüicsApp1ic;itionand rcyucsi for provisionalmeasures had made clear
thai wewcreaccusingthe Goverorneni of lran of flagrantand plain violationsof
Iran's international legal obligations under the four cited treaties, the Iranian
letter of 9 Decernbermade absolutcly no rcçponscto those chargcs. Thc Court
willrecallthat the letter simplytook the position that the Court should not take:
cognizanceof ths caseon the thcory thüt thc scizurcof thc hostageswas only"a
marginal and secondary aspect" of a largcr problcm. Thc nct rcsult of that
Iranian position on 4 Dcccmbcr, 1 rcspccifully submit, was and is ha( the
Govcrnrncni of Iran has viriually conccded the total illegalityof the course or
conduci uponwhich it ernbarked on 4 November 1979.
At this point, incidenta1lshould take note of the fact that a secondmessagc
was conveyed by lran to the Court just two days ago. I will not disçuçs that
message scparatcly howcvcr bccausc it rcally is siniply a reiierailon of ihe
mcssageof 9 Dcccmbcr.Twoor ihrcc sentences of the carliermessagehave bcen ARGUMENT OF MR. OWEN 267
ornifted and the position of anothcr sentcncc haa been changed, but the
substancc of thetwo isabsolutely identical. Thuinsubstancc, if not in Form,al1
that Iran kas choscn to say to the Court abothe caseisset forth in thc message
of 9 December-and WC rcad that lctrcr as a concession of illegaliiy.
Furthemore, and more importantly, thcrc isothcr documentary evidence thai
confirms sucha concçssion. The fact 1sthat in the four-and-a-halrnonrhs sincc
the attack on the Embasçy, both thc ncw Prcsident of Iran, Mr. Bani-Sadr, and
thc Iranian Foreign Minister, Mr. Cotbzadch, have cxprcssly acknowledged
ihat the sciziirc of thc Embassy and the hoslages was carried out in violation of
the Vienna Convention on Diplornatic Relations, and another govcrnmcnt
officialhas expresslyacknowledgedrhercsponsibility of the Iranian Government
for al1ihaihas transpired. These signifiçani facis arc sct Forth in Suppiemental
Documents Nos. 18, 115,and 139(pp. 340-342,420-421and 436, infra),as well
as in our Mcmorial at page:135,supm.
TheCourradjournedfron?16.40 ro16.50p.m 268
QUESTIONS DE MM. GROS ET TARAZJ
M. GROS: 1A) Lemémoirccitc trais engagements prispar leGouvernemeni
dc l'IranB l'égarddu Gouvernement des Etats-Unis au sujet de la protection de
l'ambassade. Pourriez-vous communiquer ces engagements à la Cour ou les
commentaires envoyEspar I'ambassadcdcs Etats-Unis L TEhéranau départe-
ment d'Etat à l'époque?La rkfkrencc à ccs cngagcmcnts se trouve dans Ic
mémoire,ci-dessus pages 126-127, nole 5, et pages 118-119.
B)Entre le 14févrierct lc4 novembrc 1979,dans Icsfchanges diplomatiques
qui ont eu lieu enire les Gouvernements des Etats-Unis ct dc l'Iran soit i
Washington, soit à Téhéran,le Gouvernement iranien avail-il déjàsoulcvCdes
critiques contrc l'action de l'ambassade des Etais-Unis ei des consulais des
Erals-Unisen Iran commeill'a fait cnsuitccn invoquant l'hypothèsed'<(espion-
nage» ou mEmcd'ccactionsillégalesncontrc lc Gouvcrncment de la Rkpublique
islamique? Les autoriiés iraniennes ont-elles, à ccttc mcmc Epoquc, jamais
indiqué qu'cllesavaient l'intentionde déclarer certainsklémenlsdu personnel
diplomatique ou consulairedes Etats-Unis en Iran commepersïrna noiigrutrou
commc cnon ücccptablc >il?
2. Quellessont lesréponsesdu Gouvernement des Etats-Unis aux lirgumcnts
publiqucmcnt presentis par lesautoritésiraniennes selon lesquels:
L'ambassadeaurait itéun ({centred'cspionnageii;
Les Etats-Unis auraient étkimpliquésdans des opfrations de <<sabotageau
Kurdisian et au Khmestan» et avaient «des plans d'intcrvcntioncn Iran»'! Lcs
citations sont reproduiteaumernoiredes Etais-Unissoit àla pagc 132,notes 43
ci 44, soiaux pages 211-212 ci-dessus.
3. M. l'agent du Gouvernement des Etats-Unis peut-il indiquer les bases
juridiques qui fondent le rejetpar le Gouvernement des Etats-Unisdc 1:ithCsc
juridique présenléeparIcGouvcrncmcnl iranien (co~mmunication du 9décembre
1979,répétéd eans le tckgrammc du 17 mars 1980auquel M. I'agcni vicnt dc
falrc allusion), sclon IüqucllcIcdiffkrcndcntrc Icsdcux Eiats porterair fonda-
mentalement, scIon le Gouvernement iranien, sur l'attitude du Gouvernement
des Eiats-Unis à l'égard de I'Jran antérieuremcniau 4 novembre 1979. et
sculcmcnt i titrcsubsidiairesur Icskvénementsdu 4 novembre ci leurs suiics7
Un Etat saisissant la Cour pcut-il dCfinir unilatéralement le différendqui
l'opposeà un autre Etai, alors que cedernier définitautrcmcnl lcdiffircnd dans
des communications oficicllcs?
M. TARAZI: La sculc qucstion que je voudrais adressera M. I'ayeni des
Eiats-Unisesi la suivant: Icsüuioritésaméricaines compétentee st responsables
ttaient-elles au courant du fait quc l'oct1l'ancienchah d'lran de l'autorisa-
tion dc skjourncr aux Etats-Unis pourrait éventuellementconduire à l'occupa-
tion de I'arnbassadcamEricaineà Tkhfran ct à la prise des otages?
The PRESIDENT: Ii is or course open to thc rcprcscntütivcsof thc United
StatesGovcrnmcni io replytothesequestionsai thc polnt of thc prcscntation of
thcir casc which thcy find most convenient (seepp. 303-304,394-310,infra). ARGUMENTOF MR. OWEN (cont,)
AGENT FUR THE G0VliRNMI:N'I' OFTlIE UNITED STATESOF AMEKICA
Mr. OWEN: Mr. Prcsidcnt. May 1 sayat ihe outset ttia1 will bc answering
the firstofthc Court's quesiions veryshorily in my argumcni and Lherestorthe
qiicstions willbe answeredduring our prcscntütion iomorrow, with the Court's
pcrrnission
Beforethe recess 1Ilad bccn pursuing a chronology or the procccdingain this
caseand 1had rcachcd 15Dcccmbcrwhen the Court ant~ounccdits unanimous
decision to ardcr provisional rneasurescallingupon Irün to cnsurc the immedi-
aic relcascof ihc bostügesand the irnmediaicrestoration of the premisesof the
Embassy io UnitedStatescontrol. Ithink itisfair to Saythat the world generally
rcgarded thiii pronounccinenl by the Court as a major stcp towards the solution
of the crisis,and hoped that that would turn out to bc s11is tragic thait has
not as ycl.
'Fhe Government of lran has rcmained not only unmoved by thc Court's
action but, ifmiiysayso,dctiant. As reflectedin an anncx at pagc 226,supra, or
our Mcrnorial, on 16 Ilecernbcr-jusi seven days aftcr hc hiid expresscd
profound rcspecl Forthe Court-the Foreign Ministcr or Iran rererred to ihe
Couri's provisional measurcs as a "prcfabricütcd verdict" whichwas "clear . ..
in advance", and instructed the lranian Embassy herein The Hague oficially to
rejcct the decision.That rcactioii, I subrnit, sirnplyre-etnphasizcathe rcsponsi-
bility of the Govcrnmcnt of lran for the seizure and continuing captivity of
the hosiages.
THE SECUR~T CYOUNCIL R'I~SC)LUTION
Thc United States, disappaintcd by Irün'sdecisionto continue in this illcgal
course of conduct, thercaftcr rcturncdto the United Nations Sec~irityCouncil
and soughi furthcr action from the Council. On 31Decembcr 1479the Security
Council iidoplcd rcsolution 461,which isset i'ortkin our Mernorialat pages 139
and 140,supra. 1n thai resolution the SccurityCouncil again recognizedthat the.
hostagcs were heing held in Iran in violaiion of international law and that the
siiuütionrcsuliingfrotn thcconduct of Iran could have grave consequcnccs for
international peacc and sccurity. The resoIuiion also took into account the
Order oi"ihis Court of 15 Dccciiibcr and rc-ernphasized lhe responsibilitof
Staics to refrain;in lheir internatiorelations,from thc thrcator useor îarce.
The resoluiion then urgcntly cüllcd,once again, on the Govcrnmçnt of Iran to
rçlcase ihchostages immediaiely and announccd thc decision of the Security
Council, in the event of non-cornplience by Iran, to adopt cfkctivc meüsures
undcr Articles 39 and 41 or the Charicr of thc United Nations. Allhough the
Sccuriiy Çouncil has since been prcvcntcd from carrying out its decision to
adopt cffcctivcmeüsuresagainsi ihe Government of Irün, the Facircmains ihai
thc membersof the SecuriiyCouncilwcrcunanimous in cxpressingthe viewthat
Lhc conduct of which WC cornplain here constitutes a plain violation of
international law and that thc hostagcs should be released immediatcly.
My discussion has now reachedthc point in Januarywhen the United Statcs
hled its Memorial. Since two rnontks have now elapsed since that filing, and
sincethat two-month pcriod hasencompassed some evcnts in which the Court ARGUMENT OP MR. OWEN 271
ihereto-would promote an carly solution to the crisis between the two
Governments, but neither thc Secretary-Gcneralnor thc twoGovcrnmenls gave
thecommissionanyresponstbilitywhaicvcrwith respectio Iheadjudicaiion ofthe
claims of thc Unitcd States. That îunction remains entirely, and we think very
clearly, withinthe jurisdiction of this Court. conclusions which 1havcjust
cxpressedare FuElycorroborated, 1submii, by the statements madeby officiaisof
both of the Governments involvcd. On tlic Uilitcd Statcs sidc, on 29 February
following the cstablishmcntof thc commission, theWhite House declared that
both thc Unitcd States and Iran "have concurred in the establishment of the
commission asprnposcrlhy theSecretary-Generaly'.The statement (Supplernental
Document 157,pp. 455-456 i,jra)took spccificnotç or thc Sccrctüry-Gcneral's
statement that the commission"willundcrtake a fact-findingmission". Whilethe
siatcrncnt included language io (he effect that the commission would hear
grievancesof 30th sides", its referencein ihat regard wasin the contextaf thc
stated hope ihat the commission wouldhelp bring about the early releaseof the
hosiagesforwhosewelfarethcAmcricanpcoplc havcbcenconcerncdfor somany
months. The Whitc House siatcrncnt flatly asscrted thc position of the Unitcd
Statcs thütthc commission "will noi bea tribunal".
Subscqucnt statements by United Stalesoficials are consistent on this point.
In a press briefingan 23 February (Supplemental Document 158,p. 456, infra)
the State Dcpürtmcnt spokesmün rciieraied thc undcrshnding ihai the purposes
of thecon~missionwereto hear Iran'sgrievancesand IObringabout an earlyend
to the crisis.He empbasized lhat "lhe official mandate is as stated in the
Secrelary-General'sown releaçeon this subject". That position was re-empha-
sized by the spokesmati on 26 Fcbruary when hc süid: "The Sccrçtary-Gencral
has outlincd thc objcctivcsof the c~mrnissionihai he put togeiher and sent to
Iran. He has projected what 11iswe agreewith that" (SupplernentalDocument
159,p, 456, infra).
In response soquestions at a pressconferenceon the samcday, the Secretary
or State of Ihe United States repeated this understanding of the commission's
objectiveand also added the following:
"Lct rncsay that the understanding of the United Nations and ourseIves
has bccnclcarlyset rorih by the Secretary-General.He was asked what the
mandate was after a question had been raised as to the naiure of the
mandate, and he confirmed thai it was as he had originally statcd it.
1think the tcrmsof rcfcrcnmand thc undcrstünding with rcspcctto thosc
terms of refsrenccwüs clcür, rcmains clcar, and1 think lhey have ken
çorrec-tlyreflected what ihe Secrciary-General bassaid." (Supplcrncntal
Document 160,p. 457,infm.)
The Iranian Governmenthas alsomaderclevantstatementson thissubjecland
thosc staiemenis clearlyindicate the:understanding on the part of Iran that the
commission has no function with respect to thc clairns which arc prcscntly
pending bcforc this Court. In announcing the establishmentor the commission,
Presiden~Bani-Sadrstated the lranian viewthai thecommissionwasto engagein
"an inquiry and investigation into past American intervention in the internal
arlàirsof Iran through the régimeof the fomcr Shah, and investigation of their
treaçhery, crimcs and corruption'' (Supplerncntal Document 90, p. 398,infra).
Similürly,ina mcssageissuedon 23February the AyatollahKhomeinireferredto
the commission as a body which is "investigating and studying past US
intcrvcntions in Iran's internaaffairsthrough the bloodtetting Shah régime"
(SupplementalDocument 100,p. 405,irifrrAnd inan interviewon 25February
Presideni.Bani-Sadrstated to Gerrnan corrcspondcnts that "it is thç task of the
cornmitteeto investigatethe crirncsof tbcShah and hisdcpcndcnccon thc Unitcd
States and tomake theresultsknown to the world public.Thecornmitteehas no
other m~ssion"(Supplernental Document 106,pp. 413-414, fnfru).272 DlPLOMATlC AND CONSULAR STAFF
Itisevident, Isubmit, that neither the Secreiary-Generanorei~herof the iwo
Govcrnmcnts involved bas cver viewedthe commission as having any respunsi-
bilityTorthe adjudicationof the United Slatcs claims whichare now bcf~rcthis
Court. Even if the commissionhad mct with rull successin ils mission to Iran,
the United Staics would stillbe presenting its claims heretoday. It is ihus very
clcar,WC submit, that thc jurisdiction of the Court has been and remains
unaffected by the activiliof the United Nations commission.
Perhaps the bestway for meto concludemy discussionof the commission1sto
quote from Judge Lachs' opinion in the Acge~znSea ContinentalSi?e!fcase. In
discussing the relationship bctwccn the functions of ihe Court and other
mcthods of pcaccfulscttlcmentof disputes,Judge Lachs used languagewhichto
rny mind precisely fits ihc crisis in thc United Staics-lranian relations since 4
November and 1would like to quotc:
"Thefrcqucntly unorthodox naturc of the problems facing States today
requiresas many tools ro be used and as many avcnucs to be opencd as
possibleinorder ta resolve the intricate and rrequently multi-dimensional
issues involvcd. It is sometimes desirable to apply several rnethods at the
same tirne orsucccssivcly.Thus no incompatibility should bc seenbetween
thevarious instruments and fora to which States may rcsort, Foral1arc
mutually complernentary. Notwithstanding the interdependence of issues,
somc may bcisolatcd,givcnpriority and their solution sought in a separate
forum. In this way il rnay be possiblc to prcvcnt the aggravation of a
dispute, ils degeneration inta cunflict.Within thiscontext, the role of thc
Çourt as an institution serving the peacerwlresulutiun of disputcs shoiild,
despite appearances, be UT growing importancc."
The United States Guvcrnmcnt conscntcd to the establishment of the United
Nations commission in thc hopc that by providing Iran with an apportunity to
air its grievances, the climate would lx that nluch more favourablc for thc
releaseof the hostages and the eventual resoluliun oî other issues nowpcnding
between the two States. Unfortunalely the commission'sefforts have nQt yct
bornc fruit. But, an1 think this isthe critical point made by Judtachs in the
passage 1havc quoted, thc Sccrctary-Gcncral'sattempt to allow Iran to air iis
gricvances by cstablishing thc commission was noi and is nor in any way
incompatible wiih thesimulianeous pursuii ofour casc beforc this Court owith
the Court's full and prompt considcration of Ourcase an the merits.
SU~TMAK 01:SUUSTANTIV LEEC~A PLRINCIPLU
That concludesmydiscussionof the factual background underlyingtheclaims
of the Uniied Slates, and 1 should iike now to turn for justü moment to a
preliminary revicwof the legalissues.In a moment, withthe Couri's permission,
I shall rake my seat su that Mr. Schwebelcün procccd with the argument with
respect tu the Court's jurisdiction under the ireaties upon which wc rely, but
before Mr. Schwebel addresses those issues, perhaps it would be useful if 1
surnmarize very briefly the substantive principles of law whichunderlic our
claims.
Asthc Court will rccall from the hearing which took place on 10December,
thc Unitcd States relics in ihis case upon four treaties, the first and mast
significantof whichis the 1961ViennaConvention on Diplornatic Relations. As
we pointed out to the Court atthat time, the purpose of that Convention, to
which both the United States and Iran havelong beenparties, was tocodiîya sel
of principlcs whichhave bccn firrnlyestablished in custornary internationlaw
for centurics.Thc esscntialprincipleinvolvedisthat diplornaticagentsand their
staffand the embassy prernises in which thcy scrvc, enjoy an iinmunity and
invioiability whichmust be respeçted in al1events and that in no circumstanccs ARGUMENT OF hlK. OWEN 273
müy the receivingSlatc ürrcst or incarceratesuch persons or enter or seizesuch
prcmiscs.One of thc csscntialpruvisions oc the Vienna Conveniion, ArticIc 22,
rcads as îollows:
"1. The premises of thc Mission shallbc inviolüble. The agents or the
receivine.Statc mav nul cntcr them,except with the consent of thc hcad of
thc ~isiion.
2 The receivingSiate isunder a spcciiilduty io Lakeal! appropriate steps
to nrotect the nremisesof thc Missionagainsianv intrusion or damage and
tobrevcnt anydisturhincc OF thepeace>f the ~ission or impairmcn?of its
dignity.
3. The premises of the Mission, thcir furnishings and oiher property
thereon and the mcans ol'transport of thc Mission shallbe immune from
search, requisiiion, iittachmcOr execution."
As 1shall cxplain later in our prcscniation, thc Iranian course of conduct thai
çommcnced on 4 Novemher kas lncludcd flagrant and very serious multiple
violations of everyone of thcsc thrcc parügraphs of Article22.
Turning from thc physical premises to the more importani qucstion of thc
immuniiyof the people withinsuch diplomatic premises,Article 29of the samc
Vienna Convention providcs that cvcry diplomatic agent "shall be inviolable"
and "free Fromany Formof iirrcstand detcntion" Moreover Article 31requires
that cvcry such ügcni cnjoy cornpiete"immunity rrom the criminaijurisdiction
or the receivingState". There isabsolutclno doubt but thal the Govcrnment of
Iran had a duty to prcvcnt any scizurcor detention of any of the United States
diplomatic agentsand slaT1'inTehran. Under Artlcle9of the VicnnaConvention
Iran could in cffect havc expclled any of thc Amcrican diplomats whom Iran
considered ohjectionable, but the Govcrnmen~ of lran was totally without any
legal right to scizc,or to allow thc scizurcof, an? or the American diplomatic
personnel involved in thiscontrovcrsy.
Thc basic rights that 1havcjust beendescribingtind relevantelaboratian in a
niinibcrof othcr trciitr provisionsto whicwe willhe referringat a later point in
our, prcscntiition. Forpresent purposes it is enough to say that additionül
rc1cv;intguaranteesorprotection are setforth in thc 1963VicnnaConvention on
Consular Relations. in the New York Convcntion on thc Prcvention and
Punishmeni of crimes Against Intcrnütionally Protectcd Rrsons, including
Dinlnmatic Aeenis. and in thc 1955 bilittcral Srcalv or Amitv. Econornic
~eiaiions, andY~onSularR~ghtsbelwecnthe United Sites and lr&. Undcr thc
latterttr-aty,forcxürnplc, thc Government of Iran was and 1sunder a lcgal
obligiilionio cnsurc that al1United States naiion:ils in Iran rcceive'*themost
constant protection and security", as wcll as "reasonable and hurnane ircat-
ment", but as we willlatcr dcscribcto theCourt trcaty provisionof this kind, as
incorporated in the Fourtrratics lu whichIhave referred, have been violated by
Iran on a mulliplcand daily basis for the past Four-and-a-halfmonths. ARGUMENT OF MR. SCHWEBEL 275
Court in its order of 15Decembcrhcld that their optional protocols furnishcd a
basis upon which thc jurisdictiun or the Court might bc foundcd, ihese
conventions will bc addrcssed firsi.
Thc Statcs rcprescnted at the two Vicnnü Confcrences of Plenipotentiaries
which concludcd thc Viennaçonveniions an Diplornaticand ConsularRelaiions
dccidcd to provide Torthird-party settlcmcnt in optional protocols. No Statc
wüs, or is, obligated to becomc party 10these protocols, but bath Iran and the
United States exercised thcir option to do so. They thercby accepted the
compulsory jurisdiction of Lhe Couri over any disputc arising out of the
interprctation or application of the pertinentvention.The tetms of Article 1
of cach of the protocols could not bc clcarcr:
"Disputes arisingout of the interpretation or application of the Conven-
tionshall lie within thc compulsoryjurisdiction af thc Inicrnational Court
of Justice and may accordingly be brought before the Court by an
application inade by any pariy io the disputc bcing a Party to the present
Protocol."
Ii ~ollowsthat thcrc are only two jurisdictional queslions relating to the
Vienna Çonvcntions wkich the Court must rcsolvc: Frrst,whether there is a
disputc bctwccn the Uniied States and lran; and second, whether that disputc
arises out or the intcrprctation or application of ~heconventions.
THE EXIS'IFNC OE A DISPUTE
First, thc qucstion whether there 1sa disputc. That can hardly give risc io
controvcrsy.
Sincc the aitack on the Embassy and the seizure of the hustagcs on 4
Novcmbcr, the Uniied States has mainiained that Iran stands in brcach of its
inicrnalional obligations to respect diplomatic and consular immuniiies,
pariicularly as thosc obligations are specifiedby the two Vienna Conventions.
Nevertheless,Iran has persisted and gersists in its occupation of the Embassy's
premiscs and in the holding as hostagc of UniLed States diplomats and
diplomatic andconsular staff.ccordingly,therc 1sa dispute withinthe mcaning
of thal tcrrn as it is used in Ariiclc 1of ihc Optional Proiocols.
TheCourt isaware that thcclüssicdefinitionin ihejurisprudcncc of ihc Court
of the term disputc is that contained in the caseof Th4avrurn~nufisPulesrine
Concessi~ns:"A disagreementon a point of lawor Facl,a confliciof legal vicws
or or intcrestbetween Iwo persons." (P.C.I.J.. SerieA. No. 2, p. 1.)In the
Sourh West Afrzcacases, theCourt quoicd this definitionand procccded io sci
fnrth a sitilplcstandard for dctcrmining,a criterion for testing, theexistenoeof a
dispute:"Ii must be shown that thc daim of one party is positivcly opposed
by the other." (I.Ç.J.Reports 1962, pp. 319, 328.) Thc Uniied States, it is
sibrnittcd, has nlade jusi thatshow&. Wc have claimed persistently and
vi~orouslv.heforcthis Court. in the SecuriivCouncilof thc United Nations. and
elkwhcrc'that the conduçt'of Iran sincc'4 Novemher gives rise to multiplc
fkügrantand profound violaiions or the fundamental rules of international law
contained in the Vicnna Conventions, which must cease immediately. Most
fundamcntally, we have claimed that thc hostages must be immediatcly and
unconditionally rcleased,We have madc this conviction known to the authori-
ties of thc Government of lran dircctly and through intermediarics, including
Ambassadors or third States accrcditetu the Government of lran. We have
rnadc our position plainin public pronouncernents and through diplornatic and
privatcchannels,and yetthc hostagcshave been heldfor 136days, and continue
to bc hcld. The Embassyof thc Uniied States in Tehran has ken occupied For
136daysand continues to beoccupied.Numerous oiher violationsof diplomatic
and consular immuniiiescontinue to occur daily and the-Government of Iran276 DlPLOMATlC AND CONSU1,ARSTAFF
still refusto bring this situation to an end by complyingunconditionally with
what this Court descrihed in paragraph 41 or its Order of15 Dcccmber as its
"imperativc obligations . .. nowcodifiedin thc ViennaConventions OF 1961and
1963, to which both lran and the United Stalcs arc parttes".
It issubmitted that mare positiveopposition to Lheclairnsof the UniteStates
could hardly bc imagined.
Nrlw Lobe sure, thc existenceof thts disputc between the United Statcs and
Iran isnot reficclcdin elaborate exchangcsof diplomatic notes. Iran'sconducr,
in ils essence,hsismade suchformal exchangcsimmaterial aswellas impractical.
Not only is the United States Ernhassyin Tehran over-run and inopcrativc and
its oficers heldhosiagc, but from themiddle of Novcmber Iranian oficiül~hüvc
rcfused tn have direct contact with United Slates officiaisoutside of Tehran.
Nonetheless, Iran was madc fully aware or the naturc and the legal bases of
thc claims of the United Siaies, ln thc first weeks afser rhc Embüssy take-over
and prior 10 filingour Application in this Caurt on 29 Novembcr, thc United
States made strcnuous cfTortsof 11sown to pcrsuadc Iran to abideby its trcüty
commitments. In addition, during this period, third country ambassadors in
Tchrzinai the requestof the United Statcsmade a seriesof dtrnarches inTehran
calling the aitention of ihe Government of Iran to Irati's obligations vndcr thc
Vicnna Conventions. Many countrrcs circulated docurncnts at the United
Nations making the samepoint, among tlicm,the Mernbersof the Organization
of Arnerican Statcs' and, on more (han onc occasion, or the Europcan
Community2, and Afrrcan Siates such as GuincaJ, Tunisia4, the lvory Coast5
and UpperValta6.Many headsorstale or Govcrnment sentlelegramsor lctters
to Iranian authoritics üppealingfor respect TorIran's international obligations.
A numberof thesemessages wcrereferredto during thc SecurityCouncildebatcs
during carly Deçember.
M~ichof this material isalrcüdybefore the Courl. One point meritsemphasis:
Iran's ownstatements make clear bcyond douht that thcse rncssageshad been
received by Iraniati authorities and ihat Iran chose to persist in its conduci
despite the daims that this conductwas illegaland must cease.
May 1respectFullydirect ihc Court's attention particularly tthe 22 Novern-
ber speechby Mr. Bani-Sadr, Lhensupervisor of the Iranian Foreign Min~stry,
Vienna Conventionbycs name.The Caurtu, mayeralsowislito note the29Novcmber
1979interview, quoted ai page 217supra, with Ayatollah Rehcshti,spokesman
for thc Revolutionary Council, in whichthe Ayatollah adrnits that the taking of
hustagcs 1snot in accordancc withdiplomatic traditions. And finally, 1would
ask the Court to examincinterviewsgivcn by thc Ayatollah Khomeinihirnsclf.
Thcse interviews,reprinted al pagcs 88-90 and 219-220,supra,make clear thai
the highest authorlty in Iran no1 only kncw that the holding of hostages was
Drclaration or Nuvember1979 of thePermanentCouncil ofthe Organizationof
Ayerican Sirrtcl, N doc.X/13659of 29November 1979.
Staicmentbythe1-IcadsfStaieorGovcrnment and the ForeigMinistcrof the nine
Member Siateof theEuropeanCommunity of 30 Novcmkr 1979,UN doc. S113668or30
Novcmhcr 1974.
Mcssa chy Comrüdt PresidentAhmcdSekou Toure of 22 Novcmber 1979UN doc.
Si13667u f30 Novcmbcr 1979,
' Leiterdated1Decemher 1479From the Permanent RcpresentativofTunisiato the
UnitcdNations addressediothe PrcsidentOtheSecurityCouncil.UN doc.Si13670nT1
Deceinber 1479
Messngcfrom theMinislerforForeignAiïairsorthelvoryCoast,UN doc. 511367 3r
3 6Tclegram19from the Preridcntof the Republicof Upper Volia, H E. El Hadj
Aboubakar SangouléLamizana of 4 Decçmbcr 1979,UN duc.SI13678of 4 Dccembcr
1978. iARGUMENTOF MU. SCHWEBEL 277
considered to be a violation of international law but that, in Ayatollah
Khorncini'sown words, "Probably not ü day passes without messages being
receivedby our Foreign Ministry fromabroad, from various countries to whom
thcy havc appcalcd. They keep appealing to us to release the hostages and so
forth." (Ann. 41, at p. 220.)
It is apparent then that despite the absence oa series of forma1diplornatic
cxchanges,Irün was awürcof, rcjcctcdand refused to negotiate the claimsof the
United States.
It should be added thai, in anyevent, therisno rule of international lawthat
a dis~utein the international lenalsenseexists onlv if iisrcflectcdin a formal
exchange of officia1representaths. Any such rule would suggest a stultifying
formalismincansisient withthejurisprudence of this Court and with the realities
of international life.
Rather the Court has taken the position that, whether there exists an
international dispute is a matter for objectivedetemination. (Inferpretutianof
Peucc Treaties, Advisory Opinion, I.C.J. Rep~rrs 1950, pp. 65, 74.) Formal
diplomaticcxchangcsarc onc, but onlyone, kind of evidence whichisrelevant to
the dctermination of this question of hct. Othcr cvidcnce may be equally
probative. particulariy where, as here, the jurisdictional clause in qucstion does
not provide ihai the failure of negotiationsis aprerequisiie to recoursc to the
Court.
Indeed,even where the failurofnegotiationshas kcn sucha prerequisiie, the
Court has declined,asin the caseof The Mnvrommafis PalestineConces~.ionasnd
in thc Suurh West AJiica cases, to find in such clauses a requirement Toran
cxtcndcd scricsof forma1bilateml exchanges.In the case now before the Court,
ii is submitied bo~hthat there1sabundant cvidenceof the existenceof a dispute
between the Uniied States and Iran and that a contrary conclusion simply
cannot be supported on the record before the Court.
In fact, the Government of Iran itself appears toadmit the existçncc of a
dispute with the United States.It has done so, in effect,in two communications
to thc Court, those of 9 December 1979and 16March 1980(see pp. 18-19and
253-25'54s,upra). These letters do not question the existence of a dispute but
maintain that thequestion of thc hostagcsinTchran "only represents amarginal
and secondary aspect of an ovcrall problcm". It thus refcrred to the conflict
between Iran and the Uniied States as one not of the intcrprctation and
application of the treaties on which the American Application is based but a
confiict which rcsults from an overall situation containing more fundamental
and complex elemcnts but the existence of a dispute is thus acknowledged, if
implicitly,by Iran.
Moreover, the existenceof a dispute between the UnitedStates and Iran hzis
been recognized by third States and by the Security Council of the United
Nations. The records of the Securl~yCouncil are rcplcie with refcrencesto thc
dibpuie bctwccn thc Unitcd Statcs and Iran. Thc representatives of Gabon,
Liberia, Canada, Malawi, Yugoslavia, the UnitedKingdom, Czechoslovakia,
thc German Democratic Republic and the Soviet Union al1 used the term
dispulc in dcscribingthe diffcrencesktween Iran and the United States. Security
Council resolution 457 itself recalls the obligation of States to settle their
international disputesby peaceful means.
Furthermore, this Court itself, in referring tu the letter from rhc Irünian
Minister for Foreign AfTairsof 9 December noted that "no provision of the
Statute or Rules contemplates that the Court should declineto take cognizance
of onc aspcci of a dispute meselybecausethat dispute has other aspects. (I.CJ.
Reports 1979, Ordcr of 15 Dccembcr 1979, para. 24.) Indeed, the Court
characterizcd the instünt case as "a disputc which concerns diplornatic and
consular prernisesand thc dctcntion of intcrnationaily protccted~persons,and
involvesthe interpretation or applicationof multilateral conventions codifying278 DIPLOMRTICAND CONSULAR STAFF
the international law govcrning diplornatic and consular relations" and thusa
dispute which by iis very nature "Fallswirhinintcrnationül jurisdiction". (Ibid.,
para. 25.)
In sum and in short, there can be absolutely no doubt that there is a disputc
between theUnired Slates and Iran.
T~EDISP~~A TERISE FROMTHE ~NTERPRETATIOW OR APPI,ICATION OF THE
COKYENT~ONS
1 turn ncxt to the question of whether the dispute is one arising from the
intcrprctation or application of the two Vienna Conventions. While reservinga
decision upon its jurisdiction in Its Order of 15 December, the Court, it is
subrnitted, so indicated in the passage from thc Order which has just been
quoted, where it noted that the dispute involvcs"thc intcrprctation or applica-
tion of multilateral conventions codifying the international law governing
diplornatic and consular relations".
Iiis submitted that the validiiyof the Court's charactcrization isself-evident.
The United Statescase against Iran in large rneasureconsistsof claimsihat Iran
has carnmitted material violations of rnany provisions of the Vienna Çon-
ventions. It is clear that thcsc claimsrnust, as the Court declared in Ai~~bu-
rieluxcase, "stand or fall" on the intcrprctation of these provisions and thelr
application to the facts of the case. (Ambarreloscase, merits, obligation to
arbitrate, Judgment of 19 May 1953,I.C.J. Reports 1953, pp. 10, 18.)As thc
Permanent Court point out in the:case concerning Certain GerrnanItiteresrsin
Polish Upper Silesicthe:question whether thedispute is one arising from the
intcrprctation or application of a convention can only be answered by asking
"whether theclauscsupon which thedecisionon the Application must be based,
are amongst those In regard to which the Court's jurisdiction 1sestablished".
(P,C.I.J., Series A, No. 5,atp. 15.)The Court's decision on the merits in this
case, as in any in whichthe violation of treaiy obligations is allcgcd, mus1bc
based upon the treaty provisions whichthe Applicant claims have been violated
by the respondent. Çince thc United Statcs here claimsthat among other things
the provisionsof the Vienna Conventions havc bccn violated by Iran it follows
that any judgrnent of the Court must in some mcasure bc based upon the
provisions of thc Vicnna Conventions. Sincethe jurisdiction of the Court under
Article 1 of the Optional Proiocols io the Yicnna Conventions cmbraccs dis-
putes arising undcr eachand cvcry provision of the Conventions, it is also clear
that the Court hasjurisdictionoverclaimsbased on theparticular provisionson
which the United Statcs rclics.
It is submitted that the Court's Judgment on thc Appeal Rclarrngio the
Jurisdiçrion0fblleICA0 Çouncil squarely supports the foregoinganalysis.That
case, it will be reçalled, came to thc Court on appeal from a decision by the
Council of the International Civil Aviation Orgünization, holding that the
Council hüd jurisdiction to consider the meritsof adispute belween India and
Pakistan. The Court, after dctcrmining that it had jurisdi~lion to consider the
appeal, addressed the question of theICA0 Council'sjurisdiction to entertain
Pakistan'sclaimsagainst India. Undcr the rclevantjurisdictional provisions.the
Council's jurisdiction extended onlyto disagrccrncntsrclating to the interpreta-
tion or application of the treatieson which Pakistan bascd its claim. India
maintaincd that the treaties had been teminaied or suspended and thai
consequently no issucof their interpretation or application could ürise. But thc
Court noted that Pakistan's Cornplaint to the Council, the equivalent of an
application instituting proceedingin this Court, citcd spcçificprovisionsof the
relevant treatiesashaving been infringed by Endia'sdcnial of averflight rights.
Thc Cornplaint also affirmed the existence or a disagrecment rclating to the
application of the treaties. The Court then declarcd:280 DIPGOMATIC AND CONSULARSTAFF
~heICA0 Counciithc Court faced ihis quesiion directly. The Court statcd that
ihc lCAO Council could not bc dcprived or jurisdiction,
.'..rnerelybecausccunsiderationsthar areciairncdto lieouiside thetrcaties
maybcinvolvedif,irresptxlivcofthis, issuesconcerningthcinterpretation or
application of these instruments are nevertheless in qucstion . ..As has
already becn sccninthe caseorthe competenceof the Court, so withthat or
the Council, its competence must depend on the character of thc dispute
subrnitted to it and on the issuesthus raiscd, not on those defenccson the
mcrits, or other considcrations which becomc relevant only aftcr thc
jurisdictional issues had bcen settled." (I.C.J. Reports 1972,pp. 46, .)
Fos these reasons,WC submit that the argument advanced in Iran's Icttcrsof 9
Dccetnber and 16March must be rejected.
Letinc now summarizcwhat 1cndeavoured to shaw so far.The United Sliitcs
and Iran arc both parsies IO elich of the Vienna Convcntions and to their
OptionalProtocols on the Compulsory Scttlcmentof Dispules.Articlc 1of each
of theOptional Protocolsprovideswithout qualificationthat disputesrclating ta
thc intcrprctaiion or application OF the Conventions shall lie within lhc
compulsoryjurisdiction OFthis Court and may he brought before thc Court by
unilatera! application. Thcre is, we have shown, a dispute betiveen ihc United
Siates and Iran and it is a dispute which arises from the interpretaiion or
application of the ViennaConventions. Consequenilythc dispute lieswithin the
compulsory jurisdiction of the Couri and the United Siatewüs cntitIedto bring
the case bcforc the Court by unilateral application. Norhing more need be
shown. The Court is cornpetent 10 considcr the merits of the United States
claimsagainst Irün under the Vienna Convcntion on Diplornatic Rclations and
the Vienna Convcntion on Consular Relations.
The case for LheCourt's jurisdiction under Article 1or the Protocols is,we
beIieve,lucid,simpleand dccisive.In accordanccwith the ViennaConvention on
the Law of Treaiies, "a treaty shallbe interpreted in good faith in accordance
wiilithc ordsnarymeaning to be givento the terrnsof thc trcaty in their contexl
and in the light of it0bject and purposc" (Art. 31).
The matier could not bc pui more clearly and cogcntly than this Court put it
in itOrdcr of 15 Dcccmbcr, whcn ihe1d thül iis manifcstfrom the information
before the Court and from ihe terms or Articlc Jof eachof the two Protocols
thar the provisions of ihesc Articles furniahbasis on which ihejurisdiction of
the Court might be founded with rcgard to the claimsof ihe Unitcd States under
the Vienna Convcntions. Thc Court declared thüL:
"Whereas, whileit istruc that Articlestl and 1JIof the above-mentioned
Protocols provide Torthe possibility Forthe partiesto agrec iindçr certain
conditions tu rcsort not to the International Court of Juslicc bui to an
arbitral iribunal or io a conciliation proccdurc. no such agreement was
reached by ihc parties; and whercas the terms or Articlc 1of thc Optinnal
Protocols pruvidc in the clearesimünncr for the:compulsoryjurisdiction OF
the Internalional Court afJusticein respectof any dispute arisingout of the
intcrpreta~ion Or application of the above-mcntioned Vienna Çonvcn-
tions." (I.C.J. Reports 1979,Order of 15 Becembcr, para. 17.)
Al1this said, the Court will of course recall, howcver, that in the light of
Articlc 53 of the Court's Siatutc, thc United States devoted considerable
attenlion in its Mernorial to reîu~inga possible argument against the Court's
jurisdiction.Thc argument was, in esscncc,that the United States Applicaiion
was prematurely filcd,that the Court conscqucntly lacksjurisdiction, and ihai
the cüse should thereforc bc dismissed,
The argument rests on a rcüding of Articles II and 111 of the Optional
Protocols according to which no Application rnaybe filedfor a gcriod of twa ARGUMENT OF MR. SCHWEBEL 281
rnonths aficr one pariy has notified Ihc othcr or the existence of a dispute,
During this two-monih pcriod, thc partic sre to explorc thc possihility of
submiiiing thc disputc io arbitraiion or conciliation. Now it is not intendcd
today to rcpeat the detailed refuzation of ihis argument which is found in the
United States Mcrnorial. Howevcr, 1wish to cmphasize-e.r abundunfi cclurelu
-somc points which arc sct out in the Mernorial in grctitcr detail. which
demonsiratc that such an argument against thc Court's jurisdiction rests on an
invalid corrsiruction or the Optinnai Protocols.
Bcforc doing so,howevcr, 1 should like io draw thc Coiirt's attention to a
crucial ract intervcning betwcen the tirne thc Mcrnoriai was filed and today's
argument. Morc ihan two months have now clapscd since the latest datc, 29
November, on which it might be held thai thc Unitcd Siates notificd Iran of rhc
existence of thc dispute which is the subjcci of proceedings in this Court. 29
November of course 1s the date on which thc United States filed its Applica~ion
in this casc. That Application was duly and promptly comrnunicatcd to the
Govcrnment or Iran. On 29 Novcmbcr, ir not before, the Covcrnmeni of Iran
was notilied of the existencc of a dispute, and ihe claims of the United States
which were sct hrth with par~icularity in its Application. 29 Novemher then is
the latest datc on which the United Statcs might conceivably be held to hüvc
noiificd Iran of the existencc of a disputc.
Morc than two monihs have now elapsed since 29 Novcmbcr. The Uniied
States and Irün have not agrecd to submit ihc dispule io arbitration or
conciliation. Infaçt,Iran has nevcr indicaicd Lheslighiest interest in subrnitting
the dispute to arbitration or co~iciliation.Indeed, Iranian rcprcscntaiives, having
bcrn forbiddcn ta discuss the dispute with the Unitcd States, could hardly agree
io its arhitration or conciliaiion. In conscqucnce, cvcn if it were held that no
Application could properly be filed prior la the expiration of the two-month
period, an Applicaiion hled ai any timc üftcr 29 January would be timcly. It
follows. then, in our suhmission, ihüt the only consequencc of a dccision to
dismiss ihe United Siates Applicütion on grounds of premalurity would be to
rcquire the United Statcs to filea sccond Application. Undcr therule established
by the Court in the Muvron~niatis Prileslirle Concessioricase, quoted in the
Mernorial at pagc 151,supra,the Court will not cngügc in such a futile exercise.
In other words, cvcn if onc rnakes the two assumptions most hostile to the
success of thc Unilcd Staier;case, namcly. first,thano Application tnay bc filcd
prior to thc expiration of two months froni ihe dale on which thc Unitcd Siates
notificJ Iran of the disputc; and second, that the Unitcd States first notiried Iran
of thc existcnc of the dispute on 29 November, dismissal of Ihe United Stüics
çisc would be unwarrantcd.
It is not, ol'coursc, necessary or propcr to makethese two assurnptions, whiçh
resion incorrect constructionsOC the relevant facts and law. Inour suhmission,
corrtxtly cunstrued, the Optionül Protocols du not require a two-month waiting
pcriod prior io filing a casc hcrorc the Louri. Ariiclc 1of the Oplional Protocois
contains no mention whatsoever of such a waiting period, and none should be
inipliçd from ihe permissiveprovisions or Articlcs II and III.
Articlc 1,as 1have noted, provides that disputes arising out of'the irrtcrprcta-
tion or ;ipplicdtion of thc Convention shalIicwiihin the compulsory jurisdrction
of the Court-a provision which is irnperativc and unconditional, Rut Articlcs II
and III providc thiit thc parties may agrcc, within a Iwo-month period, to rcsort
nat to thc Court but to arbitratioii or conciliation. Thc optional inltnl of
Articlcs 1Iand III, and the inaiidatory import oFArticlc IIis cmphasizcd by ihe
tcrms or thc preamblc io the LwoProtocols: exprcssing thcir wish to resort in al1
miitters concerning thcm in respect of any disputc arising out of the interprcia-
lion or application of the Convention to thc compulsory jurisdiction of the
International Court or Justice, unless some oiher form of settlemcnt kas bcen
agrccd UpQnby the parties within a rcasonable period.282 ' DIPLOMATlC AND CONSULARSTAFF
Article1isinthisrespcctquite similartoAriiclc23ofthe GenevaConventionof
1922betweenGerrnany and Pliland which thePermanent Court construed in the
cüscconcerning Certuin German InteresrsrPolishUpper Silesio.Article23of the
Geneva Convention provided that any differcnceof opinion relating to ccrtüin
articlesofthe Convention couldbesubmittedto theCourt byeitherparty. Article
23 of the GenevaConvention, likc Article 1 of the Optional Protocols, did not
reguirecithcrthat diplornaticnegoiiationsfirsthavefailedor that another special
proccdure precedsreferenceto thc Court. The Court heldihat, "under Article23
recourscmay be had to the Court as soon as one or the Partics considersthaa
differcnccofopinionarisingout of~hcconstructionand applicatiun ofArticle6 of
thcConvention cxists"(P.C.I.J..SeriesA, No. 6,at p. 14).Preciselythesaniernay
be saidor ArticleI of theOptional Protocols now before theCourt; thal isto say,
under Article1a party may bringa case tothc Court as soan as a dispute re1ating
to the interprelation Orapplication of the Vienna Conventionshas arisen.
ARTICLEIS IANI) 111OF THE PROTOCO AR ENOT SURPLUSAGE
Now,Mi- .rcsident, may it beargued that this construction of the Optional
Protocols is open to üttack-open to attack on thc ground that this con-
struction deprivesArticle11and IIIof al1meaning:that it rçduccsthoseArticles
io surplusagc? May itbe argued rhat obviously the parties ta dispute always
are free to rcsorl to arbitration or conciliation rather than the Court if ihcy so
agree, and thal,iEthis is al1these Articles mean, thcy are meaningless?EnOur
viewrt rnay not bc so argue& for the construction that we have given of thcsc
Articles rather than dcpriving them of meaning givcsArticles II and111OFthc
Optional Protocols threc consequential effecis,
First, the inclusion of Ariiclcs II and IIImakil impossiblcto construe the
Optional Protocols asrestrictingthe freedomof thepartiesby mutual consent to
submit disputes to arbitration or conciliation. Asoted in the Unitcd States
Mernorial, alpagcs 145and 146, supra,ihcrc was some support among cmincnt
members ofthe Instirurde droir iniernuficiforü rulc that States be required to
submit ta this Courtal1disputcsrclating tomultilatcral conventions concluded
under Unitcd Nations auspices,ArticEcsII and IIIwereintended, we submit, to
makc cicar that this position hanot been accepted.
Second, Articles 11and bll point the partics to particular dispute scttlcmcnt
mcchanisms which they might wish to conçidcr as alternatives te judicial
setilcmcnt by this Court.
Third, ArticlesIIand II1niakeclcar thata party which,ingood hith, explores
the possibility of resort to arbitration or conciliation, or eaeparty which
acceptssuchan approach inprinciplesubject lo the ncgotiation of an acceptable
compromis, daes noi thercbywüivcthe right to institute proçeedingsin thisCourt
unlessfinalagreementon a compromis isreachcdwithina period of two monlhs
These conclusions arc supported by the legislativc history of each of the
Optional Protocols which is set out.in detail in the United States Mcmorial.
Each of the Vicnna Conferences considercd and rejected a dispute seitlemcnt
clause which would have rcquired an atternpl LO arbitrate or conciliate the
dispute prior to submitting it ta the Court. The legislative history of the
Optional Protocol to rhe 1958Gcncva Conventions on the Law of the Sca upon
whichthe Vienna Qptional Prolocols weremodelledisorlikc import. In the face
of this lcgislativehistoryilis not possible to accept the proposition that the
draîters of the Optional Proiocols intcndcd to require a Iwo-month waiting
period prior to resort to the Court.
Mr. President, the United States subrnits, in sum, lhat praccedings in this
Court rnay unilaterally be instituted at any time aficr a dispute of the
appropriate character has arisen. Thcrc is no mandatory wairingperiod.
The Court roseul 6p.m. FOURTH PUBLIC SITTING (19 11180,10a.m.)
Preseilt. [Scesitiing of 18III 80.1
ARGUMENTOF MR.SCHWEBEL(cont.)
CEIUNSl!tFORTIlE GOVERNMENT OF TH]:UNITED STATES OF AMERICA
Mr. SÇH WEBEL: Mr. Presidcnt, whcn Istoppcd yeskrday 1 was addressing
the question of jurisdiction undcr the Yienna Conventions on Diplornatic and
on Consular Relations.
A finding of jurisdiçtion wnderthose Conventions docs not aclually require
acccptancc of thc contention with which 1closcd ycstcrday, narnely, that under
thc Protocols tn those iwo Conventions ihere is no mandaiory waiiing pcriod
hefore a casc müy bc filedin rhis Couri. That isour aubmissionbut, even if it is
not acccpted, we would maintain that in thc circumstances of this case the
United States Application in any event was noi prematurely filcd on 29
November. As setforth morc fullyin LheMernorialat pages 149and 150,supra,
even iforgu~~dot,hcre jsaIwo-month waitingperiod, thc only right enjoyed by
a potcnliül rcspondent isa right existingFürmaximumoîtwo rnonths to try to
convinçe Lhepotential applicant to rcsort lo arbikation oto conciliation. The
two-monih waiting pcriod maynot, however, be a bar io the institution ui"
proceedingsin this Court inany cüscwhcrethe potential respondent has cvinccd
no interest whatsocver in ürbitration or in conciliation within a rcüsunable
lime arter receiving notice of the existenceof a dispute. This, wc submit, is
particularly the casc whcrc thc rcspondeni is engaging in a course of coercive
conduct in violalion or its obligations undcr Articlc 2, paragraph 3, Article 2,
püragraph 4, and Article 33 UT the Unitcd Nations Charter.
Inthe case at bar, Iran tnustbchcldtohavebeen givennoticeoftheexistcnçcof
a dispute as carly as 7 November 1979when the Presidcnt of thc Unit4 SLates
dispatchcda spccialcmissary to Tehran withinstr~ictionstodcal withthcdispute.
Bef'oretilinitsApplirü~iunon 29November, ihcUnlfed Statcs also made other
rcpresenialirins,directlyand through intcrmcdiaries,in Washington,Tehran and
at the Unitcd Nations. Someor these representations werc made as early asthe
second week of Novetnbcr. Iran accordingly had more than a reasona'bletimc
priar to 29Novcmber Locnpress an inierestinsertlingthisdispiiby conciliation
or arbitration, had itwishedto do so. It did not availitselfofthis opportunity. On
thccontrary, theAyatollah Khomcini gaveinsiruclions againsi evennegotiating
the dispute with the Unitcd Stiütcs.Iran persisted in its unlawfulcffort ~ocoerce
the Unitcd States by holding hostagediplomatic and consular oficers in Tehran
and threatening further violations of thcir irnrnunitiesand, indeed, thrcatcning
their weli-being and safcty. To hold that, even in such circumstances, no
Application to this Court may bemade prior to the expiration ofthe two-month
period wouldbc io adopr a rule whichrewards unlawfulcoercion and penalizes
respect Forthc procedures of peaceful settlcmcnt.
Pcrmit me now io recapitulatc ihc discussion of the supposed two-month
wairing period. First, the United Statehas shown that there is no such two-
month waiting pcriod. Under Article 1,an Application rnay bc filedatany time
after a dispute of the appropriate character hüs arisen.284 DIPLOMATIC AND ÇDNSULAR STAFF
Second,cvenif'thcreordinarily is atwo-month waitingperiod, theApplication
of'the United SLateswas not prcrnaturely filedin the circumstanccsof this case.
Thcrc içno bar to the institution of procecdings in a case where, as hcrc, the
Respondcntcvinccdno interestinarbitration or conciliationwithin a reasonable
time aner rccçivingnoticeof the existenceof a dispute,hroke offdirect conlaci
wiih the Applicünt, and cngagcd in unlawîul cocrcion. Indced, it may be
maintained thal, by iis conduct, Iran would beesioppcd Fromargurng,if it were
here in courtto arguc, thüt the United States was rcquired to wait itwornonths
during which ilshould hüvc saught arbitration or conciliation bcforefilingan
Applicationin this Court. Itissubmitted that it isnot for ~hcCourt to construct
for Iran an argument which il would not be open forIran ilsclî to advance.
Third, cven if there is an absolutc and unqualified rule that no Application
rnaybe made prior to the expiration of the two-month period, dismissal oc thc
United Siates case woutd bc unwarranted, more thün two months having noiu
elapsed from the Iütcst dütc on which it might conccivübly bc held thai the
United Sfatesnatified Iran of the cxistcnccof the dispute.
For al1thescforcgoingreasonsit issubmittcdthat the Courthasjurisdiction to
consider the claims of thc Unitcd Staics under the Iwo Vienna Convcniions.
1 turn now to the question ofjurisdiction over theçlaimsof ihc Unitcd States
undcr the Treaty of Amity, Economic Rciations, and Consular Rights. Article
XXI, püragrüph 2, of that treaty providesthat disputes rclated to the interprtta-
lion orapplication of ~hcTrcaty "not satisfactorilyadjustcd by diplomacy,shall
bc submittcd" tu the Court unlcss thc Parties agree to some othcr mcthod of
pcaccfulscttlerncnt.
On the qucstion of whether a dispute cxisred on 29 November and cxists
today, ihc considcrationssubmitted earlier rcspcciingdisputes under the Vienna
Convenlions cquülly apply and need not be rcpeated. It may addi(ional1ybc
noted khat rhere werc numerous complaints by Unitcd States oficials, both
before and arter 29 Novcmbcr, rcgarding the detcntion of the hostages, which
clcarly isinconsistent with ~hecnjoyrncnt of themost constant protection and
security, complaints which went as wcll to thc conditions under which thc
hostageshave becn held. Sorneof the statements arc collectedin Appendix H io
the Declaraiion or Under-Sccretary of State Newsomwhich has already bcen
submittcd to the Couri. May 1 particularly rcfcr thc Couri io ihe >Latemen1
issuedby the WhiteHousc on 19Novcmber,at page 58,supra,and thc statcmcnt
made hy Presidcnt Carter al a conrerençe on 28 Novcmbcr, ai pages 60-66.
supra. These statements weremade soon aftcr the return to the Unitcd Statcs of
the 13 hosiages who had bccn rcleased. During this samc pcriod prior to 29
Novcmber, the ambassadors of scvcral third couniries reprcscntcd in Tehran
also cxpresscd iiithe strongest terms kir concçrn over the hostages'captivity
and conditions. Arnbassador McHenry's speech to the Sccuriiy Cauncil OR 1
Decernber(p. 47, supra) likewisccrnphasizedOurinsistenceihat basicconditions
or humanity bc respected pending release of the hostages. Othcr çirnilar
expressionsofconcern have been made sincethal tirne.Iran still has not reacied
to theseprorests ina satisfactory rnanncr. It isan inescüpablcfact that Iran has
opposed the clairnsof the United Statesnot only for the constant protection and
sccuriiy of its na~ionals but also for decent and humanc trcütment for its
national5 wtiiledetained in Iran.
There is no nccd ta labour the point tha~thc dispute was noi "salisfactorily
adjusted by diplomacy" by 29 November. Suficc it to aaythat the United States
had made strenuous efforts to rcsolve the dispute prior to filing this case.
Distinguished representativcs of thc liitcrnational community, lhe Secretary-
Gencral of the United Nations, the Presidcniof the GeneraEAssernbly,thc Pre-
sidentof the SccurityCoüncil,al1had contnbuted to thesearchTora solution and
for improvcmcntin thc conditions undcr whichthchostageswereheldincluding
guaranleed international accessto the hostagcs. It issubmitted that, even if,as it ARGUMENT OF MR SCHWEBEL
does nat, Articlc XXI, paragraph 2, rcquircd ihai the dispute bc onc which
"cannot bc rcsolved by diplomacy", thai requiremeni would bc mct in this case.
Furthermore, ihc dispute relates to the interprctation or application ofthe
Treaty oTAinity for the same reasons as Ourcasc under the Vienna Conventions
relatesto ihe interprctation or application of thosc instsumcnis. The United
Siatcs has chargcd Iranwiih violating scvcrül provisions of theTreaty of Amlly.
Such a charge inevitably requires thc intcrprc~ation or application of the Treaty.
Thcre was course no agrccmcnt beiween the Unitcd States and Iran to
resolve ihe disp~llcby some method other than rcfcrcnce to theCourt. AIthough
pari of the.rnandiitc of the United Nations Commission of Enquiry was to visil
and interview thc hostages in order io obtain curreni objective information
regarding thcir hcalth and well-being, thcrc was no agreement to divest tbis
Court ofjurisdiction over any Unitcd Stütcs claims under the Treaty of Amiiyor
othcr trcatics on which EheUnited Stütcs relics.
1shall claboraic ihis point shortly in endcavouring to respond to one of ihe
questions which the President has bccn good enough to put.
In thcsc cirçumstances, then, thc Court has, it is submitted, jurisdiction under
Articlc XXl, paragraph 2, of thc Trcaiy or Amity.
1 should like ta makc onc furthcr point in concluding my rernarks on the
Court's jurisdiction undcr the Treaiy of Amity. Thc Mernorial advanccs scvcral
arguments in support nf the conclusion thai Article XXI, paragrüph2,confers a
right of unilalcral rcsort to thc Court. In addition to thcsc arguments, 1wish to
refer the Court oncc morc to the decision in ihc cüsccvncerningCertain German
1niere.sl!riUppev Siksia. The Court thcrc construed a compromissory clause
which, like Ariicle XXI, paragraph 2, provided that certain disputes "shall be
submitied" io the Couri, bui did not cxpressly provide a right of unilaterdl
rcsort to thc Court. Thc Court ihere intcrprctcd the clause as providing thüt
unilateral right (P.C.1J.. Scri~A, No. 6, al 14).
du~1~13rin c.!UNDER THE ~ONVEN~'ION ON THE PAEVENTI ANDNPUNISHMENT
01'CRIMEA SGAINS ~W'I'I~KNATIONALLYPROTECTE PIKSDNS
Our finaljurisdictional argument is this. It is submittcd that jurisdiction also
exisls in lhc cxtraordinary circumstanccs of the inslant case undcr Articlc 13,
pariigraph I, of the Convc~ition on iht Prevention and Punishmcni or Crimes
Against Internationally Protccitd Personç, rncluding Diplomatic Agents.
The United Statcs readily concedes that Articlc 13, unlike, and by way of
insiruciivccontrast with, thc Oplional Protocols or thc Treaty of Amity, givcs
priority tn arbitrationand ordinarily pcrmits resort th the Court only irthe
parlies havebccn unablc tu agrceon theorganization ofthe arbitralion within a
pcriod of six rnonihs from thc rcqucsi Forarbitration. Howevcr, thc Unitcd
Siates contends thüt this limitation OFthe Court's jurisdiction should have no
application in circumstances such as lhcsc whcre lhe party in whosc favour the
six-month rule would opcrate has, by its awn policy and conduct, made it
impossible to havc discussiuns relaicd to thc orglinizaiion or an arbitration, or,
indecd, cvcn to comrnunicaic a direcl formal requcst for arbitrütion. 11 is
submiitcd ihal, when such ;in atiiliide as tbc Iranian attitude has been
manifesied, an appl~cation lo the Court may be made withoui rcgard io the
passage of timc. 11 would be anornalous lo hold that, in a casc where judicial
relief is urgcnily neededby the Applicant and the Respondcnt has rerused io
atlaw any direct cornmunicatioii bctwcen the pariies, the laitcr is nevertheless
entitled for six monthsio hold offjiidiçial redress by referring tu anokher mode
of scttlcmeni in which itdcrnonsirably has no intarcst whütcver.
1would like to add tl~isfurthcr thought which iurns on the fact ihat Iran, in so
behaving, isbchiivingillcgally-and WC submitihat itisin refusing to ncgotiatc. If
iiwere allowcd to invoke the six-month rule, it wnuld seek to profit Fromirs own286 DIPLOMATIC AND CONSULAR STAFF
WrQng,which wouldviolate the principlcof international lawthat no legalrighi
rnayspringfrom a wrong. 1believethat in thejurisprudence ofthisCourtonc can
findsupportforthe proposition that thosewhoFdil inthcirprocedural obligations
rnaynotciteproccduralobligationsagainst theiropponenfs.{Facrory ai Chorzhw,
Jurisdiction, Judgmeni,No. 8, 1927, P.C.I.J., SeriesA, No. 9, p. 31, and the
construction pIaced upon it by the United Statcs Memorial at p. 151.)
It rnay finallybe noted that the remediessought by the United States in this
case:directlyrelate to the violatian of its international lcgalrights by Iran-ihai
is to Say,they directly relatc to Iran's breaches of trcaty obligations wh~11
owcs to the United Siales undcr the four treaties on which the United Siates
rclies. As has been demonstrated in the United States Memorial, and will bc
further demonstrated in the course of ihis oral argumcnt, Iran stands in
incontestabie breachof thcsc trcaties in multiple respects.Each of these trealies
indepcndently Furnishcsa basis for the Court'sjurisdiction to deal wiih claims
within its purview.
Mr. Presidenfand distinguishedMembers of the Court, rnay 1now turn from
questions of jurisdiction io whar, under Article 79of the Rulcs of Court, is
describcd as any objection by the Respondent Io the admissibility of the
application orothcr objection, the decision upon which is requested before any
further proceedings On the merits. Article79 providcs that sucha preliminary
objection shall be madein writing within the tirne-limitfixcdForthe deliveoi"
the Countcr-Mernorial. Thal lime-limit expired on 18 Fcbruary. No such
objcction from the Government of Iran was received within the time-lirnit.
Accordingly, it would appear to follow that there is no bar to further
proccedings on the merits.
Nevertheless, possibly the Court rnay choose to consider, proprio mnru,
whetherthere are prcliminaryobjectionswhichmight be raised evenihough Iran
has füilcd to raise them. In prior cases objections of rhis kind have related to
such yuestionsas mootness, standing of thcApplicani io espousethc claim, and
exhaustion OFlocal rcmedies. May we submit the followingobservations on
thcse points.
THE GASE 1SNOT MWT
Since 53 United States nationals contfnuc to be held hostage, obviouslytliis
case isnot mooi. The dispute submitted in the Application of the Uniiad States
persists. While thercrnay be reason io hopc that the hostages will soon be
relcascdand the United Slatcs Embassyin Tehran restored to the control of the
United States, even these long-sought and repeatedly dcfcrred developmenis
would not rendcr these proceedings moot.
This isso becausethe United SrütesApplication and its finalconclusionsseek
more than the rclcasc af the hostagcs and the restoration of the Embassy ta
United States çontrol. The Couri is asked to adjudge and declare that Iran has
violated its international legal obligations to the United Slabysits conduci,
çonduct that cannoi bc criised by a change of policy on the part of Iran. The
Court isasked to requirc thc Government of Iran to ensure the inviolabilityand
effectiveprotection of the prcrniscsaf the United States Embassy, Consulatcs
and Chanccry, aswellas their restoration to United Statescontrol. Iran isasked
not only io releascthe hostages and afford them rreedom and facilitiesto leave
the ferritory of Iran, but to ensure al1diplornatic and consular personnel of the
United Statesin Iran thc protection, privikgcs and immunitieia which theyare
cntitled,including immunity from any form of criminal or other jurisdiction.
Iran is asked to prosecutc or extradite the persons responsible for rhc crimes
committedagainst the personneland premisesof the United StatesEmbassyand288 DIPLOMATIC AND ÇONSUI,AR STAFF
entitled undcr treaties In forceand gcncral international law. The United SLatcs
sccksihat the premisesof the United States Embussy,Chancery and Consulates
be rcstored to United States control and thcir inviolability and effective
proteclion cnsurcd, as provideclby trcaties in forcc and gcneral international
law. The Unitcd States seeks the prosecution or extradition of those persons
responsible for thç crimes in point.
And finally,unlike the Nuclcar Tesiscascswhcre the Applicants presented no
claimfordarnagcs,thc United Statesmost dccidedlyseeksrcparation. Ofcourse,
in thiscase Iran has ncithcr freed the hostagcs nor giventhe least sign, çtillless
undcr~aklngobligations binding in international law, thai it will observe a
course of lawful conduct.
For reasons whlch arc no lesscompellingand no lessdispositivc,the Court's
Judgment in the casc concerning the Nortiiern Crimerooils in no way could
support a holdingof rnootncss.This 1ssofor a rnultiplicityof reasons,cspecially
that in thai case:the Court w;is üskcd to make a dcclüriition about a trcaty
obligation na langcr in forceand adcclaration whiçh wauld hüuc been wiihoui
opcrative efict.
May I now turn to another question that might be and indeed has bccn raised
with rcspectto whetherthis caseismaot or otherwiscinadmissible.The yucstion
which you, Sir, put in these terms:
"Whcther the establishment or work of the commission or enquiry scnt
by the Secrctary-GeneralLoTchrün affects inanywüythejurisdiction of lhc
Court to continue the present proccedingsor the admissibilityor propriety
ofthese procccdings."
Mr. Owcn has described the mandate of the commission of enquiry: fiict-
Findingwith rcspectto thegrievanccsof Iran. Itwas hopcd,and is hoped, Lha~by
procccding todischarge this mandate, the commission would thus promoie-
allow, was the ierm thc Secretary-Gencrai uscd-the release of thc hostages.
But the commission'smandate to which, io thc best of Our knowlcdgc, the
commission kas adhered, in no wüy includcs or trenches upon the claims which
the United Siatcs has submitted to the Co~irt.This isbccauscthe commissionis
grievanccs ofeIran, grievancesas tobwhicheihcojudgrnent oftthisCourt thas not
ken rcqucstcd. For ihest reasons, it is subm~tted,ncither the admissibilityiior
the proprieiy or these procccdings have becn affected by the çstablishment or
work of ihc Unitcd Nations commissionof enquiry.
It should be added that the Tacithat thc Secretary-Gcneral of the Uniied
Nations has endcavoured to promoie the solution of the: hostages crisis by
setting up a commission of enquiry on grievancesof Iran or the fact that the
means~Tset~lcrncnaretnd most norably lo the negotiations whichIran has io diiic
rcfused, equally does not prejudice thc jurisdiction of thisCourt. As the Court
held in thc case of theAegean Sca ContincntulSheF
"Negotiation and judicial settlement arc enurnerated zogctherin Articlc
33 of the Charter of the United Nations as means for the peacerul
scttlement or disputes. The jurisprudcnce of the Court provides various
cxamplesof casesin which negatiations and recaurse to _rudicialscttlement
havcbccnpursued puri passu..Consequen~ly.the fact that ncgoiiütionsare
bcing actively pursued during ~hcprcscnt proceedings is not, legally,any
obstacleto theexcrciseby theCourt of itsjudicial rvnctiun." (I.C.Reports
1978,p. 12.)
May 1 iurn now from questions of moottiess, and WC submit that Lhercarc
nonc, to other questions of the admissibilityF the claimsof the United States
which conceivablymight bc raised.290 DIPLOMATICAND CONSULARSTAFF
InternraiionaLaw Reports, p. 304, and A. Frecman, The Internarioriul
ResponsibiIrtyofStolesfor DenialofJustice (193X),pp. 404, 405).
Where thc casc 1s one of mixed injury, that is, injury both to thc Stütc
and io its nationalç, again the rule of exhaustion of local remediesdocs noi
apply. As the thcn Profcssor Ago, in his capaciryof Spccial Rapporteur of ihe
International Law Commission on Stütc Responsibiliiy,dernonstrated, in such
circumstanccs"it wasgenerallythe infringcmentof the rights of thcStatc which
Look precedcncc", (1 Yearbonkofthe InlernafiotialLait) Crimrnission (19771,
p. 265.)
Applying these principlesto this caseil is clcar that the rights of the Uni~cd
States have beendircctlyinfringed by Iran, undcr the four treaties on which the
United States relies.hosc treaties creaie inter-Staacrights and duties and their
brcach consritutes direct injury to the United StatTo. tbc extcnt that United
States nationals have also sustriincd injury-as theyhavc-the rights of the
United Staics takc precedence. For al1 lhcsc rcasons, it is subrnittcd, local
remediesneed not bc cxhausted.
Two further questions of the admiçsibilityof thc Court's proceedingwith this
casc may be mentioned.
Oncisthe contention advancd bythe IslamicRepublicof Iran inits lcttersto
the Court.of 9 Dcçember 1979and 16March 1980"that the Court cannot and
should not take cognizancc of the case which the Govcrnment of the United
States of America has submittcd to it. A case confincd to what is caIled the
qucstionof the 'hostagesin the AmericanEmbassyinTehran'. For this question
only represents amarginal and sccondary aspect of an ovcrall probIcm." Itis
indeed thiscontention whichwebclicvcisat the heart of the questions posedby
Judge Gros in the third set of questions(sccp. 268, supra) which hc was good
enough to ask yesierday and permii me now to endeavour to respond to those
questions.
Judge Gros infiiallyüskedfor an indication of thc lcgalbases for the rejeciion
by the United Statesoî Iran'scontentions that the dispute betwcenIran and the
United States fundamentallyconccrns the attitude of the United Statcs Govcrn-
ment iowards Iran prior to 4 November 1979and only suhsidiarily relatesto
post 4 Novembcr cvcnts.It issubmitted thai ihc answcr to this question iLObe
roundin paragraphs 23, 24 and 25 of the Court's Order of 15December 1979.
The Court there declared ahat
"however imporlant, and however connected wirh thc present case, the
iniquities attributed ta the United States Governmeni by the Govcrnmcnt
or lran . . . may üppearto he to the lattcr Covcrnrncnt, the seizuof the
United StaresErnbassyand Consulatesand thedctention of internationally
protcctcd personsas hostages,cannot, in thc vieor the Court, be regardcd
assomethingkccondary' or 'marginal',having rcgard to the importance oi"
thc principlesinvolved. .."
and thc Çaurt held that
"moreover, if Ihc lsanian Governmenrconsidersthe allegedactivitiesof thc
United States in rran lcgallyto have a close connection with the subject-
matter of the United States Application, it rernains open to thüt Covern-
ment.. . to prescnt itsown argumcnts to the Court regdrding lhosc
aciivities,cithby way of adefencein acountcr-mernorialor by way ol'a
counter-clairn. . . Bynot appcaring in the present proccedings,the Govern-
ment of Iran, by its own choie, deprives izsclf of the opportunity of
dcveloping its ownargumentsbeforethe Court. No provision af the Statute
or Rulcs contemplates that the Court should declineto lakccognizance of
one aspect of a dispute mcrcly bccause that dispute has other aspects,
howevcr important." ARGUMENT OF MR OWEN 293
The Iranian Governmcntwouldclcürlyprcfcr that this wcrenot so. Scckingto
mollify,to somcdcgrccat least, thc world-wideçritiçismwhichkascorneraining
down upon the lranian Governmeni since the seizure of the hostages, the
Iranian Foreign Minister,Mr. Gotbzadch, has suggestedthat the ordinary rules
~Tdiplornaticimmunityare essentiallyirrelevant because,he has said, they were
dcviscd by,and for thc bcncfitof,what hc rcfcrsto as "thc BigPowcrs". It isMr.
Gothadeh's iheory thai the purpose or the international legal principles
involved is to prevent prosecution of "the crimes that the representativesof the
bigpowcrs have commiitedin ihcstnallcountrics", a commcntwhichis rcflcctcd
at page 96, supra.
Along the samc linesLhcgrandson and adviserorihe Ayatollah Khomeinihas
asserted,as indicated in our Memorial at page 218, rupro, that the Embassy
seizure has found favour in the Third World, that thc scizure of diplamats as
hosiages isno! regarded by third World populations as violating international
law, and that "the paor and undcr-privilcgcddcspiscthc lcgaland mcddlcsomc
minds of thc rich and powcrful".
Thc actual reactions of such States demonstrate that this Iranian thesis is
fdciually incorrect in every particular. The views of the smaller countries,
includingcountries in the Third World, are reflectedin the records of the United
Nations Sccuriiy Council dcbatcs during Dcccmbcr and Januüry. Just as one
examplc,let me rercr tu thcvicwsexpressedby the reprcsentative of Zairc, who
explicitlycalled on the Government of Iran to bring itself Entocompliance with
the principlesof international law. He stated as follows:
"We in the Third World who continue unswervinçly to strive for the
democratization of'intcrnational relations, for a morc just and cquitablc
sysicm ufinlcrnational rcla~ions,pruiected rrom fcar, arbitrary actions and
thc rulc of Force,but guarantced by the force of law, atlach Ihe ulrnost
importance to ihis, bearing in mind the means availableto us, because we
arc convincedthal in a world without principlesand laws wt should be the
losers."(UN duc. S/PV.2175,1 Dec 1979,at p. 58.)
The sanie thcrnc was urgcd by ihc represcnlative of Panamü, appealing EQthe
Iranian authorities tu "cease their illegal and inhuman detention of persons
protected by internatlonal law". He stated:
"Tora small country, existence as a nation is only possible ina world in
which law and ordcr prcvail. Thc soleweapon, the only dcfenceof a stnall
nation lies preciselyin the maintcnancc of ihc lcgal systcm ihat govcrns
international relations.(UN doc. S/PV.2176, 2 Dcc. 1979, at p.47.1
Again. the rcprcscntativcof Gabon rcfcrrcd io ithelong-establishedprinciples
or diplomatic irnmunityand made the lollowingobservation:
"Respect For these diplomatic custorns 1seven more fundamental for
countricssuch as ours, which owc their vcry cxistenccin ihc faceof powcr
politics and hcgcmony of al1kinds to the recognition of this international
law.. ." (UN dac.S/PV.2175, at p. 22.)
And finallyrhcsame position wassummedup by thc rcprcscntativc of Portugal
in the Followingterms:
"In any country thc rulc of law is the bcst defcnce of ordinary people
agüinst oppression and tyranny. Similarly, between States, international
law is thc only dcïenceof the small, poor and weak countries against the
rich and powerful." (Ibid.at p. 12.)
It is simplyinaccurateTorthe Government of Iran to suggestthat there is an
element of world opinion which regards their hostage-takingas lawful.There is
not. Thc smalland non-aligned countries, together with tkc major powcrs from296 DlPLOMATlC AND CONSULAR STAFF
Statcshall ireat him withdue rcspcct" and "take al1appropriate stcpsto prcvcnt
any attack on hisperson, frccdom or dignity". All of these principlcsconstiiute
simplya codification of previously exislinglaw. In addrtion, the 1961Conven-
tion addcd thc pnnciple that the same privilcges and immunities should be
enjoycdby the membersof the adrninistrativcand technical staff of adiplomatic
mission.The relevani provision of thc 1961Y~ennaConvention is Article 37.
With rhese rundarnental principlcs inrnind, it really requires no argumcnta-
tion io demonstrate that on 4 November 1979 the Govcrnmcnt of lran
crnbarked on a course of conduct whiçh violated these principlcs inthe mosl
flagrant and indisputablc way. At that time, with the assistance of the
Covcrnment's revolutionary guards, thc so-called student followcrs of the
Ayatollah Khomeini physicüllycapiurcd some 63United Statcs naticinalsand a
number of non-Amencans as well. In addition, thrcc United States diplomats
have bcen physicall y confined within thc prcmiscs of the lranian Foreign
Ministry bringing the total nutnber of dctaincd Americansup to 66 individuals.
That total, or course, does not includc the six addiiional Americanswho werc
able roslipaway from thc Embassy atthe time ofthe attack and achicvea saîe
rcruge and eventual cscape ihrough the good offices of thc Canadian Govern-
ment. As to the 66 Americans whohave actually bcen incaptiviiy, al1but iwo
cnjoycddiplomatic status eithcras ügcnOr staff The oiher two arc an cducator
and a businessman who hüppen to have fallen into the bands of ihe studeni
followersof the Ayatollah and asto those two individualsweclaim nu personal
imrnunity as such.On the oihcr hand,as indicated in our Mernorial, those:Lw0
individuals,beingprcscniin the Embassy,wereentitledto the iinrnuniticsarising
from their presencethere and as United States nationals within lran thcy were
separatelyentitled to reccivc"thc mosi constant protection and sccurity" undcr
the Treaty of Amity between the United States and Iran.
Of thc 64 pcrsuns who wereand are eniitlcd to diplomalic immunity 13were
rclcasedon 20Novemberpursuant toan order issuedbytheAyatollah Khomeini.
ln that same order thc Ayatollah commanded, in efect, that thc rcmüining 51
diplornatic agentsand staff bc coniinued in confincmcntand their confinement
continucs lo this dayAs 1 mentioned carlicr; three of them, one whom is thc
Ameriçan Char@ d'Affaires Mr. Bruce Laingen, are confincd in the lranian
Foreign Ministry and theother 48 are held bythe 50-called militanstudents.
DIRECT RBSPONSIBEL OFTIRANIAN GOVERNMBNT
As 1 noied yesterday, we think it is really beyond dispute that sincc 4
November al1 of the confined Americans have been undcr thc continuous
authority of the Ayatollah,to whomthc studcntcaptors haverepeatedlypledged
their allegiance.On 17 Novc~nbcr,when LheAyatollah directed that 13 bc
releasedand that thc rcmainder bedetained, the studentsobcycd wilh precision.
A few wccksago, when the President and thc Foreign Ministry sought to bring
about the transfer of thc hostages [rom the custody of thc studenis to the
custody of the govcrnmcnt, the students quickly focussed on the question
whetherthe trünsfcr had beenordered by the Ayatollah Theymadeclaimthat if
the Ayatollah issuedsuch an order for a trünsfcr ihey would obey, but whcn hc
dcclined io doso iheyreiaincd thc hostagesin their cusiody.Itmay bc that some
oficials of the Islamic Rcpublic wouldprefer that the hostagesbe releascd,but it
is the will of thc Ayatollah that hasconirolled to this day.
Under the circurnstances, 1 respecifully submit, the Couri has no real
alternative but to attribute the conduct of the students to the Government of
Iran. Timcand agsiinsince4 Novemberofficiaisof the Iranian Government have
acknowledged that the students are acting on bchalf of the State (see, c.g.,
Mcm~riai,pp. 88, 128-130, 197-200, supra, SupplernenialDocuments 3, 21,65,
72, 79, 100,115,129, 130,135, 139)and the facts have been publiclyrecognizcd ARGUMENTOF MU. OWEN 297
by niitions throughoiii thc world. We have reviewedthe debates in thc Securily
Çouncil in Decernherwith respect io ~hcrcspoi~sibilityof the Government of
Iriin in carryitlg out these violaiions or internalional law and those debates, as
well as the resulling resolution, makc clcar tlmt al1of thosewho pürticipatcd
were agrccd oi~thc rcsponsibility or ihe lranian Govcrnrncnt ~tself.(See, cg.,
UN doc. S/PV 2175, at p. II (Norwüy). 12 (Portugal), 28-30 (Bolivia), 38
(Nigcria);S/PV.2175, at 22 (Federal Republiç of Gcrmany), 23-25 (AustraIia),
33-35 (Malawi), 42 (Panama)' 53 (Spain); SIPV.2177at p. 5 (Swaziland), 11
(Belgium);S/PV.2182.ai p. 26 (Singapore).)Assoon as LheAyatollah, thc chicf
of Staie. decidcsthat thc hostagcsarc to be releasedthey willbe, but so long as
hc adheres to the belief that thc dctcntion of thc hostages serves his political
purposes, thcy will presumably rcmain in ciiptivity.
It should be noted thai in a vcry rciil scnsc this conduct on the part or the
Iranian Government constitutes a rclrcal from thc standards which Iran itself
has cndoned formany years.In 1924,Forcxamplc,an Iranianmob a~iackedand
killcdonc Major Robcrt Imbrie, an American Vice-Consul inTehran, and the
Persian Government immcdiniclyrecognized ihai by Fdilingto protcct Major
Imbrie il had violatcd ;in international legal obligation which it owcd to thc
United Staies.At that iimc the Govcrnmcnt acknowlcdged its responsibility,
agrecd to pay an indemnity Lo thc Major's widow, and initiated action Lo
iipprchendand punish theoffenders More [han 50ycarsago thc Government of
Iran recugnizcd itsIcgzilrcsponsibilitics:b~it has refused Lodo so loday.
At a much earlier point in my prescntation, 1made mention of the fact that
thc conduct of the Irdnian Governmcnt towards the hostages represents
compound violationsof international lawiind thc point 1thirikiswellillusirated
by thc Imbrie case ta which 1have jus[ referred. Undcr lhc trcalics upon which
ihc United StatesreIies,the Government oTIran hashada continuing obligation
to protcct United States naiionals frorn scizurcor olhcr harm and io prevent
such crimcs from going Forward and ihis duty of proleciion and prcvcntion
ürisesundcr Ariiclc24of thc 1961ViennaConveniionon Diplomatic Rclations,
under Articles 2 and 4 of thc Ncw York Convention on the Prevention and
Punishmeni or Crimes Against Intern~itionallyProtected Rrsons inçluding
DiplomaticAgents, and under Ar~iclcII or ~hc1955 Trcaty or Amity, Econornic
Rclations iind Consular Righis between the United States and Iran. In other
words, the conduçi which wc havc dcscribed ta the Court al such length has
violütcd Iran's duties of protection and prcveniion undcr scveral diferent
treaties,and yet,1bubmit.thüt it wouId bc ;vast undersiaternentto suggcsiihat
thc Government of iran isguilty of nothing more than a failure to protecl thc
Amcricans and prevent the:crime. The most significant Fdctis thai, Tar from
merely failing to protect the individuals and prevent the crimcs, thc Iranian
Government iiself has participaicd in thc scizurcand in the commission of the
crimes, thcrcby compounding the violat~onsmany tirncs ovcr. Where a police-
man Failsto prevcnta kidnapping from taking place,he maybe criticizcdat onc
Icvcl,but wherc he afîïrmativelyparticipatcs in ihc kidnappinghe:isengageciin
a Tarniurc flagrant violalion or the law.
Ai this point 1would like io turn to a rclatcd, but somewhai differentsci of
griçv;inccsstcmming from theseizureof the hostagcs. 1t rclatestotheconditions
under which thcsc UiiitcdStates nationals have ken held in captivity. It would
be one thing iTthc lranian G~vernmcnt had placed these individuals under
housc arrest and allowed them lo coniinuc Io livc in relatively humane
conditions. Such cond~ictwould, of course, havc constitutcd a scrious and
tolally uniicccp~ablcvioIation of'international law, but il would not hüvc bccn
nearly as cgrcgioiisas ihc conduct which hasowurred in Tact.
TheCourt adjournedfrom 11.20to 11.40 a.m. QUESTIONSBY JUDÇES MOROZOVAND ODA
Judge MOROZOV: 1 would bc grateful if the Agent of the United Srateof
America would reply ta thc followingscvcn questions.
1.Iwould recall that on 19 February 1980the Deputy-Agent of the United
Statescalled an the President of thc Court, at the latter's rcquest, and told him
that having regard to thc dclicate sragc rcachcd in negotiations, the United
StatesCovcrnmeni would requestthe Presidentand the Court to deferthe fixing
of thc date for the opening of the oral proceedingsfor the tirne beiheadded
that he could not at that stage give the Prcsidcnt any idea whcn a furthcr
statement might be forthcoming. On 27 February 1980,at the requesr of the
Prcsidcnt, the Dcputy-Agent of the United States again called on him and said
that the dclicale stage reached in the negotiations regardrng the establishment
and objectives of the .commission had led the United Statcs Govcrnmcnt to
request that the hearingsbe notfixed to open in Fcbruüry. That Governrnent's
estimate of the situation lcd it to suggcst thal it would bc convenient if ~he
hearingscould bcginon 17March. The Dcputy-Agentadded that it waspossible
that aconsideration of thc hostages' wcll-bcingmight lcad his Governmcnt to
suggesta later date, although 17March would conlinuc to be thc date which it
envisaged.
In thc lighi of this, rny questionassîoliows:
If the establishment by the Uniied Nations ora speçialcommission,and the
activityof that commission, does not relate specificallIO the.qucstion of thc
release ofthe hostages, and if the Court should, accordingto the United Stales
Covcrnment, consider tbc case as one of urgency.what was the reason why the
Uniied States Government has wasted approximatelyone month beforc pursu-
ing the defence,with the assistanceofthe Court, ofits diplornalicand consular
staff dctained in Tehran?
Ishould say that my referenceto the siaiement to which 1 havcjust driiwn
attention, and rnyfurther referencesto what wassaidat yesterday'smccting,arc
based on my notes, and 1 thcrcforc do not pretend to quote precisely.As a
technical matter,1 had no chance to refer in time to the record of yesterday's
meeting, in spite of al1cfforts of our Rcgistto providc it.
2. Ai the hearing of 18March 1980the Agent of the United States said that
the United States Government has followcda policy ofrcstraint in its relations
with the Islamic Republicof Iran, which xsin accordance with the provisions of
the United Nations Charter. In this connection, how would the United States
Government explain such well-knownacts on its part as the freczingor Iranian
invcstmentsin the United States and abroad, which according to the press and
broadcast reports amouni to some 12billiondollars? 1sit possibleto regard such
acts,as wellas threats to useothcr unilatcral mcüsurcsof cocrcionand thrcats to
useforce against the lslamic Republicof Iran, as in ~onf0ITIit~wilh the United
Nations Chartcr, and with paragraph 47 (B) of the Court's Order or 15
December 1979,whichrcquired the United SiatesGovernment not "to takeany
action and should ensure that no action is taken which may aggravate the
tensionbetweenthe two countries or render the existingdisputemore dificult of
solution"?
3.As one of the sourccsofjurisdiction in this casç the Unitcd States rclicson
Article21,paragraph 2, of the 1955Treaty of Amity, EconomicRelations and
Consular Rights bctwccn the United Stales of America and Iran. Does the
Unitcd Siates Governrnent consider lhat the coerciveactions mentioned in my300 DlPLOMATlCAND CONSULARSTAFF
Wauld the Agent be good enough to supply anyiiiformation as to what has
happcncd io thcse consulates from February 1979onward?
Thirdly, with regard to thc consulates in Tabriz and Shiraz, onaybreach of
the obligationconcerningprotection of consular prcmisesisexpressly allegedin
the Mernorial. 1s it the contention of thc Unitcd Staacs that Iran has the
obligation, For instance,to accord full faciJiliesfor ihc opcration of ihese
consulatcs?
The PRESIDENT: Mr. Owen,you may of course reply to those questions
eitherthis morning or whenyou cornplctethc submissionsof your Governmeni
at the scssionof the Court tomorrow rnorning (secpp. 315-319, infra).1should
add that thcrc wilbc somefurther quesiions [rom Judge Gros (secpp. 312iind
515, infra)whichwillbcmade available toyou in writing sometimein the course
of the day, which 11will also be ncccssüry for you, if you can, to reply to
tomorrow morning. ARGUMENT OF MR. OWEN (cont.)
AGENT OF THk GOVEKNMENTOF TI4E UNITED STATESOF AMERlCA
Mr. OWEN: Mr. Presidenk,when the Court adjourncd 1 was about tu enter
upon a discussion of the conditions under which the Amcrican bostagcs have
bcen heldcaptive inTehran. As 1cmbark upon this aspect of the case, 1should
remind the Couri that we do not, of coursc; have acccss ta the 53 individuals
who remain incüptivityinTehran today and therefore cannot furnish the Court
with any vcry concretc information asto exacily the conditions under which
thcschosiügcshavebeenenistingfor thepast severalmonths. On thco~hcrhand,
ihc Court may alsorecallthat on 20November 13of thc hostageswere released
and ihose released hostages havc provided the Unficd States Governmeni with
detailcdinformation as to thc manncrin whichthey weretreated during the first
two-and-a-half weeks of their captivity. ~nldavitscontainin~ such informat~on
are available for the Court'inLamerainsricction.if thcv arc dcsircd. Althoueh
there appears to have bcen somc variatioias arnbng thétreatment of differek
hostages, it is Paiosay thai the conditions which existedduring the first two-
and-a-half wccks of incarceration wereharsh. Without going into great dctail 1
might simply givc somc cxamplcs of the kind of treatment metcd out to thesc
people in thc carly pcriod of lheir confinement.
Thc fcrnülchostages were lied to straight chairs facing thc wall and kcpt in
that posliion for 16 hours a day. All windows were baardcd up and insidc
clcctric Iighzskcpt burning24 hours a day, thus inhibiting slccThe hostages
werefrequentlyblindfolded, the punishment Torattempting to speak to another
hostagcor fordisagrccingwithone of the guards was toheblindfoldedfor müny
hours ai a tirne.Hands were kept either bound or handcuffcd üt nighr, thus
inhibitingsleep.Sornehostageswcrercquircd to slccpon thecold bare Aoor with
theirhands tied, withoui blankeis or other amenities. In some caseschanges of
clothing wcrc noi perrnitted anda bath or shower was perrnitted only rarcly.
Scveralhostages were repeatedly threatened with guns and other weapons. On
onc occasiona student who was interrogritina wornen hoslage showed her his
revolver tolet her know that onc of 11sçcvcralchambers was loaded and ihen
procccded to intirnidatcher bypointingthe gun at her and rcpealcdlypullingrhc
Happily, he stopped in tinic, but the expenence must have been
~crrifying.The hosrages have no1 been permitied to see ncwspapcrs or obtain
newsin any other fashion.WCalso know that ona nurnberof occasionssome of
the hostagcs hadken püraded blindfoldedbeforehostileand chanting crowds. E
subrnii that iTone closes one'seycs and imagincsthc sort of icrror that would
necessarilybe evoked by that trcatmcnt, one gcts somc inkling orwhat these
pcoplc havc bccn put ihrough.
Despite repeated requests to allow contact between the hostages and their
Covcrnmcnt, al1suchcontact has been absolulely prohibitsd. On a Fcwisolatcd
occasions an outside observer has been allowcd to sec somc of the hostages,
presumablybecausesuch visitshaveservedthc interest3of thcir captors. Rut the
Secretary-General of the United Nations was noi allowed to see any of the
hostages durfng his visil in late December and early January, and the United
Nations commission wasdenied accessto the hostages in the Embassy dcspitc
the prior assurances of the iranian Governmcnt.
All of these actions, we subrnit, havc constitutcd flagrant violations of the302 DIPLOMATICAND CONSULARSTAFF
international IcgaI obligations which the Iranian Government owes to ihc
Uniied States and to the hostagcs thcmselves.
Under Article 26 of the Vienna Conveniion on Diplomatic Relations and
Articlc 34 of the V~cnnaConvention on Consular Relations,al1of the American
diplomaticand consubarofficiaishave beencontinuously entitledto "freedom of
mOVCnIFnatnd trüvcl" within Iran and, under Articles 27 and 35 of the same
Convention, thcy havc bccn continuously entitled tofree communication wiih
theirGovcrnmcnt.
Al1 of those fundamental rights, which are absoluteEy essential to the
performance of diplornaticand consular functions, have been totally denied for
four-and-a-half months. Instead of being leFtfree to go about their diplomatic
and consular dutics, thcy have been confined like cornmon criminals. As
indicated during rheSecurityCouncil'sdebate, partiçularly by the representaiive
of Portugal, the Government of Iran kas imposed upon these hostages, what
that representative describedas "an inexcusable Tom of cruel and inhurnan
treatmcnt".
I think iiisstriking, incidentally,that at thc beginning ofthe SecondWorld
War, when the Axis and Allied Powers wenl to war againsi onc anothcr, thc
practicc of each Government was to politelyescort the diplornaticagnts of thc
cncmy out of thc country or intern them in cornfortable quarters pcnding
cnchangc,whcrcashcrcthc Iranian Government, with whichthe Uniied Staresis
noi at war, kas subjcctcd our people to harsh continement.
Moreover, over and abovc thc othcr severeaspects of this confinement, 11is
apparent Ihai some or al1of thcseindividiiülshave been subjeçted to gruelling
interrogation under conditions which by dcfinition constitute coercion-as
illustrated, Torexample, by the woman who was so alarmingly interrogated at
the point of a loaded revolver.
Apparently, the Ayatollah Khomeini and his followers have bccn hoping to
find evidencethat some of these hostages are, to use hheirwords, "spics", and
havcpcrmittcdcocrcivcinterrogation for that purpose. Ailof this has beendone
under thc auspices of thc Ayatollah who cxplicitlystated on 18November, as
indicatedat pages 88-89,suprut, hat hisstudenr followers wereproperlycarrying
on thcse so-calledinvestigations.The Ayatollah declared as rollows:"Whar our
nation hsçdone is to arresa bunch orsnies who, according to the norms,should
be investigated,tried and treaied in accordancc with aurown laws."
Needlessto Say. this Ireaiment oihe hostairesconstiiutcs an indc~endentand
gross violation of international law. ~rticle-31 of the Vienna convention on
Diplomatic Relations provides in the most straight-bwat-d terrns that çvery
diplomatic agent "shall enjoy immunity from the criminal jurisdiction of the
receivingState" and thazhe shall not bc "obligcd to giveevidenceas a witness".
If the cleartems ofthe Conventionprccludeinierrogation of thcscAmcricansin
an officia1courtroom of Iran, aJortiotr he Conveniion precludesinterrogation
behind closed doors under hostile and cuercivc conditions as apparcntly
cndorscd by thc Ayatollah Khomeini.Again, Itis difficultto think oa more
gross violation of international law than locking up diplomatic envoys and
subjeciing them to this kind of treatmcnt. As the Court recognized in the
provisional rneasureswhich ilindicated on 15Dcccmbcr,it sccmsclear thatfor
the pastfour-and-a-halrmonths the Governmeniof Iran has bcensubjcctingthc
Amcrlcan hostagcs in Tchran to, what the Court described as, "privation,
hardship, anguish, and cvcn danger to lifeand health".
It should be noted that even if al1of thc 53 Americans still in captivity in
Tehran were ordinary United States nationals, as contrasted with diplomatic
agentsand staff,the treatment which has beec meted out to them by ihe Iranian
Government would nonetheless be t-arbelow the minimum standard of trrat-
ment whichisdue to oll aliens,particularly as viewedin the light of Fundameiital
standards of human rights. Paragraph 4 of Article11of ihc 1955Treaty of Amity304 DIPLOMATICAND CONSULAR STAFF
of information about the United States Fromthc Iranian Ernbassy inWashing-
ton to thc Iranian ForeignMinistry inTchran. Suchactivityobviouslyisnormal
and proper as confirmedby the Tactlhal Article3 of the ViennaConvention on
Diplomatic Relationsexplicitly lists such activities aa normal part of dipio-
matic agents' functions. Second, and perhaps more importantly, even ifthere
had been someso-calledspyingon the part of one or moreof the hostages,proof
to that effectwould neverthclessbc absolutely irrelevant to the present proceed-
ings.Long-cstablishcd principlcs oifntcrnational law and long-establishedState
practicc makeclcar thüt if a diplomatic or çonsular agcnt cngagesin cspionagc
orother unlawfulconduct directed against the receivingState, ihat does noi give
the receivingSiate the right to arrest him or intetrogate him or subject him zo
any other aspect of the criminal prosecution process. Under Article 31 of the
diplomaticconvention itisclear that everysuchagent enjoyscompleteimmunity
from the criminaljurisdiction of the rcceivingState, no mattcr how displcascd
that Statc may be with parricular çonducL.This isnoi to say, of course, that the
receivingStatc is without a remedy.Obviously, it has the right at any time and
for any reason to dcclarc a diplornatic agcnt persona non grata and thus, in
effect,bring about his expulsion from the country.
Exactly Lhatrernedy has been continuously available io the Governrnent of
Iran iTitwasdissatisfied inany way with the conduct of any of the United States
diplomatic and consulür pcrsonnçl. But instcad of invoking the only lawful
rcmedy avatlüble to il, the Iranian Govcrnmcnt chosc instead tlic flagrantly
unlawful alternative of seizingthe diplomatic agents and confining them for
monthç un end in harsh and inhumane conditions.
There is no possible way, Isubmit, that that conduct cün bc justified.
Btforc I lcavethe subject of the trcatmcnt of the hostagcs 1should mcniion
one additional problemwhich, though il has no[ actuüllycorneinro existenceas
yet,constitutes a potential threat in the future. Asthe Court willrecallfrom our
earlier oral presentation and our Memorial, over the gast Four-and-a-half
months, vanous diffcrcnt figurcson thc Iranian political scenehave advanced
the notion that atsornepoint in the future someor al1of the Americanhostages
wouldbe pur on trial in theçriminal courts of Iran. Thesesuggestions havebeen
advanced by Foreign Minister Gotbzadeh, by the students and, indeed, by the
Ayatollah Khomeini himsclf.
Morcovcr, diffcrcnttypcs of penalties have been threa~ened as appropriate
seniences followingsuch criminal trials. Onc Iranian magistrate, as indicated in
our Memorial on page 207, supra, has suggesredrhai the hostages should be
remitted into slavery, but the more frequent suggestion has been that once the
hostages have been tried and convicted, thcyshould be brought bcforc a firing
squad, as indicatcdfor examplc,in our Memorial alpage 203,supra.Although it
is dificult to tellhow seriouslythese suggestionshave been advanced, they take
on an omsnous significanccwhcn it is recalled that in recent months ovcr 600
Irünian national5 have ken tri4 in peremptory frrshionbefore revolutionary
courts and then put to death.
Nccdless to say, any kind of criminaEprosccution of any of these hostages
wouldconstiturefreshviolationsof thc exprcssprohibition setforth in Article31
of the Vienna Convenlion on Diplomatic Relations. 1will not labour the poinl
al this time, however, beeause although threais oi"criminal prosecution were
heard with great frequency at an earlier stage of the crisis, there have been
relativelyfewersuch suggestionssincccarly Dccember, perhaps because on 15
Decemberthis Court exprcsslycalled upon the Govcrnmcnt of Iran to providc
ro al1 American diplornatic and consular agents immunity from criminal
prosecution. Neverlheless, the supplernenial documcnts which we have becn
submiiting to the Court dernonstrate khat occasional threats of criminal trials
are still beingmade (SupplemenralDocuments 20,37,40, 117and 138, pp. 343,
356-363,422-423,435, iidra),and for that reason, asJ shall indicate later rny ARGUMENT OF MR. OWEN 305
suhmission, we havç includcd an appropriate provision on the subjcct in our
praycr for relief.
That concludcs my discussion of the treatmcnt of the hostagcs and at this
point 1 would like to iurn lo a diffcrcnt subject, namely the legal violations
atrecting thc physical properties of the United States in Tchwn. By physical
properties I refcr both to thc rcal estate-the Embassy in Tchran and the
Consulates in Tabriz and Sbiraz-and also to another important category of
propcrty, namelythe files,recordsand cquipmcnt locatedwithin thesebuildings.
Al1of these properties, of course, werc scizcd in the early days of November
1979.
As to the seizure or these propcrtics 1wilEnot dwellon the facis. The Court
willrccallthat on 4 November Lhcstudcnts assaultcd the compound, cut chains,
rciiiovedwindow bars, attempied to set hrc tu the Chancery, burned through
stccl doors with torches and by these rncthods gained possession of al1of the
buildings in thc compound-possessi un which wzis then confirrned by the
prcsencc of tlic Rcvolutionary Guards. Some hours aftcr the seizure of the
Embassy, similar seizureswcrc madc of the United States Consulatcs in Tabriz
and Shiraz, again with the ço-opcration of the Revolutionary Guards. Obvi-
ously, ihc Ernbassycompound remains in the control of thc militant students,
but the United StatesGovernment has no reliable inrormation as to the current
status of the two consular propcrtics.
Oncc again, ihere can be no possible dispute as to whether the physical
invasion OFthc diplomatic and consular prcrniscs of the United States was
lawful. Article 22 of thc Vicnna Convention on Diplornatic Relations 1sas
explicilas it cabc Qnthat point. Similarly,Article27or the ViennaConvention
on Consular Relations cxp2icitlyprovidcs that the receivingStates shall rcspcct
and protect the consulate prcrniscs. The iniportance or such respect and
proteciion 1semphasizedby (he TactLhatundcr Article 27 the consular prernises
arc tobc protected even whereconsular rclütionshave been severedor wherc a
consular post Ilas been closed.
At an eürlicrpoint in my argument 1commentcd on howstriking it isthat the
legalprincipleson whiçh wcrcly in this case areso uniformly rcgardcd as valid
and the principleor the inviolabilityof ihe premisesoTa diplomatic or consular
mission isno exception.Qverthe years,orcoursc, thcre have beenrelativelyrare
occasions whena missionhas beenatiaçkcd, but this appears to he the firstcase
in many centuries in which a receivingSlate itselhas participatcd in the attack
and then retained possession ofthc prcmisesand attempted Louse that unlawful
possessionto political advanliige.
At this point it may be approprialefur mc to rcmind thc Court of the markcd
inconsistencies thai havc occurred as between dimereni actions takcri by the
Irlinian Government. Yesterday 1mentioncd that both before 4 November and
after that date, thrcats of attack were made as againsi the Ernbassies of ihe
United States and the Soviet Union, and on those other ocçüsionsthe Iranian
Govcrnmcnt acknowledgedin a straightforward fashion that ithad an obliga-
tion to protccithc Missions involvcd.On those occasionsit dclibcratelyobeyed
thc rules of iniernational law, but on 4 Novcmber and thereafier the Iranian
Govcrnmcnt has dciiberaiely disobeyed those rules. In so doing 1 respectfully
submit it has indisputablysubjected itself to liabilityto the Govcrnmcnt of the
United States.
With respectto physicalpropcrlics, 1should also refer, at least briefly,to thc
fact that as widelyreported in the prcss11icinilitünrstudenwho have occupicd
thc Embassy premises for the pas1 four-iind-a-hülf months, appear to have
thoroughly ransackcd all of the diplomatic and consular archives and docu-
ments upon which ihey couid lay their hands. Indeed, there have been rcccnt
press reportsLoLhecffcct that whcn the students discovered Lhatsome private
documentshad beenshredded, that istorn up, in order to preservetheir privacy,306 BIPLOMATIC AND CONSULAR STAFF
they painstakingly pieced ihe shreds togcthcr in order further to invade the
privacy of the Embassy records.
Moreover, the occupiersof thc Embassy havenot refrained fromusing these
private records in public from time to time; touse thcir own words, they have
"exposed" groups ofEmbassydocuments, claimingthat they prove thisor lhat
with respect to alleged Amcrican espionage, and 1think it is remarkable how
litlle sympathy these suppusedly dramatic exposures havc eliciied in other
çountries of the world. The fact is, of course, thüt thcre is the universal
recognition thatitis totally illegitimaleto seizethc archivesand documents of a
diplomatic or consular mission. Under the express tcrmsof Arlicle 24 of the
Diplomatic Çonvcntion and Article 33 af the Consular Convention, al1such
archivcsand documents areio be inviolable at al1limesand wherever theymüy
bc.
Ii sccmsparticularly shocking that these Fundamentalprinciples ofdiplomatic
lawshould be tosscd aside so casuallv.not onlv bv the rnili~antstudents. and not
onEyby thc Iranian Government at largc, 6ut'cven by the Iranian Forcign
Minister, ihe chief of the Iraniün diplornatic service.In an interview,which is
reprintedin OurMernorialal pages208-210, supra,thc Forcign Ministerproudly
announced that ~hcGovernmeni had taken possession of the United Statcs
Embassy'sdacumcnts and plans to make such useof them as rnight be directcd
by the Ayatollah Khomeini. 1 think that any one oî us would be hard prcsscd to
think of a more outrageous vrolation of international le~alprincipks applicable
to the inviolabilityof the prerniscsand archivcs of diplornatic missions.
If the Court please, in sofar as thc substantiveclaimsof the UnitcSta~cs are
concerned, I want to make onc more major final point. Judging by the
outpouring ofcritrcismthat has rained down upon the Governmcnt of Iran as a
direct result of the course of çonduct which commcnccd on 4 Novernber,
virlually cvcrycountry in the warld issayingto itsclf,"ihere but for the gracc of
God go 1".Countries throughout the world recognizethai if this can happcn io
American diglomats in Tehran, it can happen to other diplotmatswhereverany
diplomatic mission is located.
It isquitc obviousto theCourt, Iam sure,that one of the principalreasonr for
our bringing this case hereand one of the principalrcasons whyour bringing of
ihe casc has receivedsuch widcacclairn,is the widelyshared concern that a ivdy
must be found to dcter sirnilar seizures in the future. The need to create a
deterreni, 1 submit, iç an overwhelming important factor in the preseni
proceedings.
In this rcspcctiseems to us vitallyimportant to look io Iheprovisions or the
New York Convention on thc Prcvçntion and Punishment of Criincs against
Iniernationally Protcctcd Pcrsons including Diplomatic Agents. That Conven-
tion, towhiçh both the United States and Iran arc party, definescertain crimes
which are plainlyinvolvcdin this case, and il then tacitly recognizcsthai iTsuch
crimes arc to bc prevented in the tliturc a strong elenlent of deterrencc is
rçquired. Noi surprisingly, the clcmcnt of deterrence contemplated by the
Convention is prosecution on thc conveniional iheory that if an offender is
forçefullyprosecuted, sirnilar offcncesare lesslikelyto occur in thc ycarsahead,
Specihcally,Articlc 7 of the Conventronexplicitlyprovidcsthat when a crime of
this kind is committed within a specificState ihat Stateshalihave a duty, if tt
ducs not extradite the amender, to subrnit hisC~SE "wfth~ut exception whatso-
cvcrand wilhout unduedelay" to the appropriate prosecutingauthoritics forthe
purpose of prosecution.
On the facts bel'orethe Court inlhis case, therefore, the Governmcnt of Iran
has had a continuing duty cver sinçe4 Novernber to submit to thc appropriate
prosecutingauthority thc case or casesagainst those who havc bccn responsible
for the commission of crimes against the United States Embassy and its
personnel in Tchran. AHGUMENTOF MR. OWEN 307
Mr. Prcsideni, this is thc appropriate poin1 think for me lorcspond to the
third question which you addressed to me yestcrday (p. 254, suprr~).Mavingin
mind thc cvidcnçe ~ndicatingttlc complicity of senior Iranian officiais in the
scizureof the Embassyand the hostages,you havc asked for our viewsas to thc
implicationsTorthe purposc of thiscaseoîour suggesiionthat thcrc isa duiy on
Lhepari of the Iranian authorities to set thc prosccutonal machinery in motion.
Our answcr, Mr. President, is ihai Iran's obligation under international Iüw La
submit allcgcd offendersta its compctent authorities for prosccution, ifit does
not cxtradite ihem, is in no way affectcdby the circumstanccsthal some of thc
accomplices inthe crimes müy have been oficial personnel, Neiiher the New
York Convention nor custornary international law rccognizesany exception to .
the obligation Tor allegcd offenders who occupy guvernmental office. Statcs
have, in practice, prosccuied governmental oficials for acts that violatcd
diplomaticimmunity, as witnessthe Guatcinalan and Ethiopian episodcswhich
1 mentioncd txarlicrthis morning.
Thc Court rnaybeconcerncdthat s declaration that Iran isrcquirzd iu submit
allcgcd offcnders to iis cornpcicnt authority for prosecution could not be
cfTcciivclyimplementedwbcrc high governmental officcrsarc implicaied in the
crimes, or whcrc thc government, as a rnüttcr or policy, has encouragcd or
acquicsccdin the commissionof'thc crimes. 1submii, howevcr,that political or
practical dificulties in thc implcmcntaiion of thc Court's judgment do no!
dctraci from theentitlcmcntof the Uniied Statcsto svch ajudgment. Moreover,
the Court should render an affirmativedeclaration as to the duty to subrniCor
prosccution in order to providc thc maximumdeierrent againsi future crimesof
this kind.Itisimportant, WC submit, thai ihe Court dcclarcto the world that the
duty to grosecutc and tu submit for prosccution cxists insuch circurnstanccs.
Evenif thcGovcrnmcnl or Iran gersistsin ils rolcasan outlaw the vast majoriiy
or States willobcy ~hcrules declared by this Court, and the probability of smh
ohedienccwillbc an importani detcrrcnt againstruiure violationsof the rults of
diplomaiic rclütions.Ttis for this rcason zhat the United Statcs Ispcrsisiing in
seeking a declaralion ihat the Govcrnrneni of Iran has a duty 10 submit for
prosccuiion those who havc cornmitlecithese offences.
On thisquestion of providingdeterrents against futurc violations of such Paws
1 should add ~hatour claim in this respcct does not solelydcpcnd on the New
York Convention on thc Prcvcntionand Punishment of Crimesagainst Interna-
tionally Protcçicd Pcrsons. On the cantrary, evcn iTthat Convention had ncver
comeinto cxistcnce Our claimwouldtind, WC think, ample support in custornary
internationallaw.
For cxample,an effortwasmadc iocodifycustomary international lawon this
subject in the 191 Harvard Draft Convention on the international rcsponsibil-
iiy or States for injuncs to alicns, and Article 13 of thai drafi convention
provides as follows:
"Failurc to cxcrcisedue diligenceto afford protection to an alien by way
of prcvcniive or deterrent incasures is wrongful if the act is gcncrally
rcçognized ascriminnl by the principal legal systcmsof tbc world."
In other words, wherc a Stiitc owes a duty to protect an alicn that duty
encompasscsa duty tu deter future atlacks, and1have previouslyrefcrrcdio the
fact that under ~he1955Treaty of Amitybetweenthe United Statcsand Iran the
Govcrnmcnt of Iran has had a continuing duiy to providc a11United States
nütionals with ihe rnost conslant protection and sccuri~y.Sirnilarlyas 1havc
ülsonoled, under Articlc 29of the ViennaConvention on Diplornatic Relations
han had a specialduty to vakeal1appropriate çtcpsto prevent aitacks upon our
diplomatic personncl, and 1 submit that that duly also encompasses üduiy to
subrnit the cases or offendersfor prosccution and ihereby dcter fu~urcartack.
The existcnçeor such a duty has bccn recognized by international tribunals.308 DIPLOMATIÇ AND CONSULARSTAFF
An example1sa case entitled The CIaim ofWalter M. Dewter'whichwasdecided
in the 1940sby the United States Mexican Claims Commission. The offencein
that cüse was murder, and the claim under international law was that the
Mexican Government had failed not only to prevent the murdcr, but also to
apprehend and punish the offender. The holding of the tribunal on this point
was as follows:
"The authoriiics of the Mexican Government were under an obligation
to takc appropriale mcasuresfor theapprehension and punishment of thosc
participating in the murdcr of Dexter and failure to do so establishes
Mexiclinliabilityunder international law."
By the rame token, we rcspectfully submit that ihe îailurc of the Iranian
Governmcnt to prosecute the pcrpetrators of the crimes involved in this case
establishes Iranian liability to the United Staies and its affcctednationals.
This brings me to the conclusion of ihc argument with respect to the
subslanrivcclaims which wearc asserting in this casc. As 1have indicated, the
case does not involve one, or two, or three isolated acts in violation of
intcrnational law. On thc contrasy, commcncing on 4 November. the Govcrn-
ment ofIran has brought about a steadysircam of offensiveactions which have
ken continuing minute by rninuic, and hour by hour, and day by day,for four-
and-a-half months. When one considers the entire brcadth or the case, literally
hundreds of differentofïenceshavcbeencomrnitied. Butfor presentpurposcs, as
1havesaid,it isuscfulto break thesehundreds of differentactionsdowninto five
major categories:thc seizureand continuing deiention of thc hostages;the harsll
and inhutnaoe ireairneni imposed upon thcm; the totally unlawfulinterrogation
to which they havc bccn subjected; the seizurc and continucd holding or Lhe
diplornatic and consular facilities of the Uniicd Siates in Iran, including the
ransackingand defilementof thc archivesand documents;and the Mure on the
part or the Covcrnrnent of Iran to prosecute those who have in Tacibcen
carqing out the Government'sorders.
During my description of thesc activitie1have:not attempled to idcntify For
the Court every singletreaty provisionwhich has bccnviolated by eachseparate
action. 1 have focussed instead upon thç fundamental treaty provisions and
principlesfor thesake ofclarityIn our Mernorial,howcvcr, WC have identifiecia -
senes of additional ireaiyprovisions which havc bccn violated by the same
çourscs of conduci which I have been describing during my prcsentation.
Havingsummarized,and I hopc clarified,Ibcsubstantiveclairnsof the United
States1want to pause brieflyto considcr again the question whether the Islamic
Republicof Iran hasany possibledefenceagainst thoseclaims.As 1noted earlier
in my argument, although the Governmenh of Iran has been givcn every
cncouragement by this Court to appear and preseni defcnces,and although the
Iranian Goverriment kas demonstrated its continuing ability to litigate effec-
tively and vigorously inother courts, it has deliberatcly chosen not to present
any substantive defence ioIhe presenl clüims.
We arc lcftthen with the narrow questionof whether thelcltcrof 9 Decembcr,
whichwaspresented to theCourt in thnamc ofthe Foreign Ministcrof Iranjuçt
before ~hisCourt's prior hearing, or its virtually verbatim copy-the letter
receivedjust two days ago+conlains ariy faciual or legalargumenhtion which
should be taken inio ücçount by the Court in reachingits decisonnthe Mcrits.
On that scorei have nothing to add to what the Court ilselfsaidin this subjcct
initsOrdcr of 15Decembcr.Although 1hesitatc to characlerizethe Court's own
words I think itis fair io summarize thc Court's commcnts on the Iranian
position in these tenns:
Firsily, although the Govçrnment of Iran has suggested that its hoslage-
taking should be regarded mcrclyas a secondary or marginal aspcct ofa large1
dispute, that suggestion is laid to rest by ihe contrary view of the Secretary- ARGUMENT OF MU. OWEN 309
Gcncral and the Security Council of the Unitcd Nations, both or whom regard
the hosiage-taking in and of itsclr as a serious threat to international peace.
Secondly, if the Government of Iran really bclicvcs that its own conduct
should bc considercd togcthcr with, and asjusiifieby alkegedlygravemisdeeds
on thc part of thc Unitcd Statcs, it could have responded accordingly by
prcsenting such allegedoffencesina Counter-Mernorial, but having failcdLQ act
Iran is scarcelyin a position to arguc that its own inaction should prtulude the
Court from consideringthe lcgitimatc claimsof the Unitcd Siates. As the Court
observed on 15 Decembcr, lhcrc is no rcason why the Court should decline to
take cognizanceof one aspect of thç disputcOn the basis oan assertion that the
dispute has 0th aspects which havenot been brought before it.
In short, on 15 Dcccmbcr, thc Court could perceive no obstacle to its con-
sideration of ihc prcsent claimsof the United States, and those claimsconiinue
today to bc both unanswcred and, 1submit, unanswerable.
Sincc Iran hcre has failed to defend, within themeaning of Article 53 of-the
Court's Skiiule, we must enable the Court to satisfy itself both that it has
jurisdiction of the caseandthat the claimsare wcllfoundcd in hct and law. Wiih
a11duc respect, 1submit that sincc neithcr the rsicnQr the law are subject to
scriousdispute, the requiremenis or Article 53 have been fullymet and that the
United States is therefore entitled to judgment on the merits of our claims.
In the course of our prcscntetion 1 belicvc thai WC have given complete
answcrsto a niimbcrofthc questions whiçhwcre posedby three Membersofthe
Court ycstcrday. But according to my reckoning there are two questions to
which WC havc not yet rcsponded. That is, two questions posed yesterday. Onc
poscd by Judgc Cros and one by 'ludgeTarazi. In order to fulfilour obligations
ro the Court 1would like now. with the Court's permission, to statc cach of the
two quesiions and the answer of the Governmcnt of the Unitcd States.
Firsl, Judge Gros pointed out (p. 268,suj~rthütrhcMernorialof the United
States referstothree undertakings which weregivenby the Governmcnt of Iran
to the Government of the United Siateswith rcspcct 10 thc protcclion of the
Embassy,and Judgc Gros has asked lhatWC communicatcthese undertakings to
the Court. Thc answcrorihe Unitcd Statesisas follows:on Sunday,21 Ociober,
there was a meeting betweenthe Iranian Primc Ministcr, the Iranian Foreign
Minisier, the lranian Ambassador to Swcdcn,thc Amcrican Charge d'AFüires,
and thc visiting Dircctor or Iranian Afhirs from theUnited States Department
of State. The ArnericanChargéd'Affairesinrormed the Iranians of plans for thc
former Shah to corneto the Unitcd Statcs and be cxplüincdour concern about
thc possiblc public rcaction in Tchran. Hc requcstcd assuranccs that rhc
Ernbüssy and itspcrsonncl would bcadcquatcly protcned. Thc Foreign Minister
gave thosc assurances wiihout hcsitation.On the followingday, 22 Octobcr, thc
Amcrican Chargéd3AWdires and the visiting Director of lranian Affairs again
met withthe ForeignMinister. The Charge, ii~a discussionof the Shah'stravcl
to thc Unitcd Statcs,agüin rcqucstcdassurancesihat iheAmerican Embassyand
its pcrsonncl wouldbe protected. The Foreign Minister renewed hisassurances
ihat protection would bc providcd.Thc Shah, incidcntally, arrivcdin the United
Statcs the nextday, 23October. On 31October, the Embassy securityofficer met
with the Commander of thc Iranian National Policeai the American Embassy.
The PoliceCommander told the securityoffieerthat the police had been toldto
providc fullprotection Torthe American personnel.This is our answer to Judge
Gros' qucslion.
As 1noied ycsterday,the followingday, I Novcmbcr, thcrc was a dcmonstra-
tion or 5,000 people around ihc Embüssyand cornplclc sccurity was provided.
Thrcc days latcr. howevcr, thc assurances were breached and the Embassywas
sackcd undcr thc protection of thc Government of Iran.
Judgc Tarazi has askcd (p. 268, supra) whether responsible United States
üiiihorities were aware of thFdct that granting of authorization tciihe forrncr310 DlPLOMATlC AND CONSULAR STAFF
Shah to visitthe Uniied States in order to obtain rncdicaltreatment for cancer,
rnight possibly lead to the occupation of the Embassy and thc seizurc of the
hostages.The answcr is that such officiaiswere aware rhat the admissioor the
Shah might result in some sort of violence against the Ernbassy,and it was
preciselyfor this reason thlit the United Statcs requested assurances from the
Iranian Government rhat adequate protection for the Ernbassy would be
provideidfollowingthe arriva1of the Shah in the Unitcd States. As I have just
indicated,clearand firm assuranceswereprovidcd on thrcc occasionsduring the
last days of October, and on 1November, at whiçh point the Shah had been in
thc United States for more ihan a week,the Governmcnl of Iran honoüred its
assurances in full. The breach of those assurances occurred three days later,
givingrisc to thc tragcdy with which we are concerned in this case.
Finally 1should like rokurnto the question of the reliefwhichwe seekin the
Court's finaljudgment. In such a judgmcnt WC arc seckingthreeiquite separate
typcs of rclicf. To aver-simplify, we seek first declaraiions to the ciïect thüt
various actions attributable to thc Government of Iran have violated various
legal principles,embodied not only in cusromary international law, but in the
four specifictreaties on which we rely. Secondly, we seek a judgrncnt that in
order to bring the roregoingviolations toan end the Government of Iran shall
takcccrtain specificcorrective steps.And third, sincegraveinjury has beendonc
both to the United States and to its nationals in Tehran, we seeka decision by
the Court thatthe Uniied Statesand its aiïected nationals are entitled to recover
financial reparations in an arnount which cannot yet bedetermined, but which
can and should be determinedin a subsequcnt proceeding tobeconducted when
Iran's unlawfulconduct has bcen terminated.
1 shall now briefly discuss thcse scparatc forms of relief. First, 1 rhink that
thereisand can be no question whateverbut thüt the UniecdStates isentitled to
a dcdaration that in the ways specified in deiail in our Mernorial, ihc
Government of Iran has vfolated and is continuing to violate ils international
legalobligationsio the UnitedStatesand its natlonals. It has long beena part or
thejurisprudence of this Court, that such declarations servcthe vital function of
esiablishingthc lcgalsituation betweenthe parties with bindingforceso thai the
legalposition thus tstablishcd cannot again bebcalledinto question inJOfar as
thç Icgatcffcctcnsuing thcrcfrom arc conccrncd. I'or that proposition 1would
rcfcrthc Court to thc decisionin thcasc of theIntergrelutioufJudgm~nhNos.
7and8 (Factory al Chorzbiv],JudgrneN nro.11, 1927,P.C.I.J.,SeriesA, No. 13,
at page 20. In relianceupon that well-establishedprinciple, thc Governmenr of
the Unitcd Statcs is rcspcctfwllyrequesting that the Court adjudge and declare
that the Governmenl of the Islamic Republic of Iran, through the conducl
describedin OurMernorial,has violated ilsinternational lc~alobligations to the
United States,as provided by Articles22,24 through 27,29, 31,37,4a4 nd 47 of
the Vienna Convention on Diplornatic Relations, Articles 5, 27, 28, 31, 33
through 36,40 and 72 of the ViennaConvcntionon Consular Relations,Articles
2, 13,18and 19of the 1955Treaty of Amity bctwccnthe UnitedStatesand Iran,
and Articles 2, 4 and 7 of the New York Çonvcntion on thc Prevention and
Punishrncnt of Crimes against Internationally Protecled Persons including
Biplomatic Agcnts.
With al1 due respect to the Court, the clarity of the facts and the legal
priiiciplesis such thawe consitlerour right to tlie specifieddeclarations to-be
bevoiiddisvuie.This brincs me to theauestioii of wlicilicrtlizCourr should now
dikt the ~overnrnent ofÏran io take kpecihcaction to tcrminate its continuing
unlawful conduct. In suggestingan affirmativeanswcr to that question, I am
kccnlyawürc of the fact that at an earlieslagc in this casWC asked the Court
for somcwhat similar reliefin the fom of provisional mcasures and that Iran's
subsequent rcfusal to complywith the resulting provisionalmcasures has surely
created doubts asio whether it willcoinply withihe finaljudgment of lhisCourt. FLFTHPUBLIC SITTING (20 LI180,10 a.m.)
Presenl: [Seesitting of 111180.1
QUESTIONS BY THE PRESIDENTAND JUDGEGROS
The PRESIDENT: BeFore1 cal1on thc Agentof the United Statcsof Ameriça
I have a question wbich 1wish io put io him in connection with the second
question 1previously put to him at the firstsession, and Judge Gros also has a
qucstion to put to him. My question isas follows: 1 thank the Agent for his
obscrvatians on my second (p. 244, ~upr~) question but 1 sl~ouldlike some
furthcr clarification of his views on the general principle of international law
which it raised1shall thereforereframe thc question amoreconcretemanner:
If a State should have the conviction that a diplomaticmissionor other services
ofa foreign State is or arc cngaged in unlawful üctivitieson its terri~ory,dacs
that fact ever give riseto a right to depart from the obligations normally
incumbent upon it wilh rcspcct to diplornatic and consular relations? In o~her
words,can recourseto the notions of sanction, necessiiyor self-defeevergivc
riscto such an exceptional right of counter-action which would otherwise bc
illegal?
M. GROS: Je voudrais poser une question relative au mandat de la
commission d'enquêtedont M. l'agent des Elais-Unis a parlé am cours de la
première audience(ci-dcssusp. 269-2721el la question est la suivante: Encc qui
concerne le mandat dc la commission dlenquEte.sur Ics faits en Iran pour
entcndre les griefsde I'lran, selon Ic Gouvernement des Etats-Unis, queson1
Icsgricfs quel'Iran avanc$ l'égard dcs Etats-Unietqui sont susceptibled'ktrc
presentes la commission? ARGUMENTOF MR. OWEN (cont.)
AGENT OF THE GOVERNMhNT 01: 't'HEUNETEDSTATESOF AMEHICA
Mr. OWEN: Ai the conclusionof yesterday'sproccedings 1wasdiscussingthe
rclicfwhich WC seckto have included withinthcCourt'sfinaljudgmeni and 1had
stalcd our view, with appropriatc citation to authority, that we are entiticd to
have included wiihin the iudgmeni ceriain mandaiory commands dcsigncd to
bring an end to the unlak~lùisituation now existing-in Iran. This rn&ning I
propose to continue my discussion of the relief which we seek in the final
judgmeni, and thcreaftcr,with theCouri'spermission,1 willprovidc thc answers
of the Govcrnmcnt of the United States to the severalqucstions posed yesterday
by various Members of the Couri.
In order to terminatc thc unlawful situation in Iran, the Unitcd Ssates
respectfully rcqucsts that the Court include within its final judgment the
foHowingfiveprovisions:
1.Thc Govcrnmcnt of the Islamic Republic of Iran shall immediaielyensure
thiit thc prernlsesor the United Statcs Ernblissy,Chanccry and Consulates are
restored to the possession ofthc Uniied Siates authorities under thcir cxclusivc
control,and shallcnsuretheirinviolabilityandeffectiveprotectionasprovided for
by the trcatics in forcebetweenthe two States,and by gcneral inrernational law.
2.The Govcrnmcnt of the lslamicRepubltcof Iran shallcnsure kheirnrnediate
release,without any exception,of al1persons of Unitcd States naiionality who
arc or havc bccn held in the Embassyof thc Unitcd Siales oi"America or in the
MinistryofForeignAffairsinTehran, or whu arc or have been heldas hostages
clsewhere,and aRord full protection Io üIIsuch persons inaccordance with the
treaties in rorce beiweentt~ctwo States, andwith general international law.
3. The Governmcnl of the lslamic Republic of Iran shall, as [rom that
moment, üfford toal1thc diplomaticand consular pcrsonncl ofthe United States
thc protection, priviIegesand immunitics to wbich they are entiiled under the
treatiesIn force bctwecn thc two Slates, and under generaPintcrnatiotial law,
including immunity from anyform of criminal jurisdiction and frcedom and
faciliiic10 leüve theterritory of Iran.
4 The Government of the Islamic Rcpublrcof lran shall. in affording the
diplomatic and consular personnel ofthe United States thc protection, privi-
Icgcs,and imrnunities ;towhich they are cntitlcd, includingimrnuniiy from any
form of crirninaljurisdiction, cnsurcthat no such personnel shall be obliged to
appear on trial or as a witncss,deponeni, sourceof informationor in any other
rok, in any proceedings, whether forma1or informal, initiated by Qrwith the
acquiescenceof thc Iranian Govcrnincn~,wheiher such proceedingsbc dcnomi-
natcd a trial, grand jury, international commissionor othenvise.
Refore I move on to the fiftfiparagrüph in this series of affirmativesteps to
terminate tllc Iraniün violations,1 should notc, with rcspcct to the fourth
paragraph, that it will have na effect on thc Unitcd Nations commission
asscmbled by the SecretaryGencral, if indecd that commissionever resumcsits
functions. The Fourth paragraph, which 1 read to the Court a moincnt ago,
would prohibii any of the hosiages from being abliged to givccvidcnçeberore
any sort of commission, butit has never been contcmplated that the Secretary-
Gcncrül'scommission would taketestimonyor cvidenccfrom the hostages. It is
tructhat it wascontemplated that the commission wouldvisit the hostages and
speak to (hem,primarily for the purpose oi"assessingtheir heaith, wclfarc and3 14 DIPLOMATICAND CONSUCAR STAFF
general status, but the commissionkas no authoriityto intcrrogatc the hostages
in any substantive senseand willnot do so. Accordingly,thç fourth paragraph,
which is squarely based upon Ariicle 31 of the Vienna Convention on
Diplornatic Relations,willnoi interferewilh any legitimateinternational efforts
to rcsolvcthe crisis.
This bringsme io the fifthand lüstof thcdcclarations whichweare requesting
in order to bring an end io ihe Iranian violalionsof international law. This Iast
declaration wouid read as ïollows:
5. The Government of the Islamic Republic of Iran shall submit to its
competent authorities Torthe purpose oîprosecution, or cxtraditc to the United
States,those personsresponsrblefor the crimescommiiiedagainst the pcrsonncl
and prcrnisesof the United States Embassy and Consulates In Iran.
As I have previously statcd, wc regard such a declaration of the utmost
importance, in order Lomaximizethe possibili~ythat pcrsons who engagein
hostage-taking, and pariicularly in taking of diplomatic bostages, will bc
propcrlypunishcd, thus crcating a dcterrent against such future violationsor the
fundamental rulcs of diplomatic law.
Finally, weseek financialreparations [rom Iran, and WC think that there can
be nodoubt whaiever as to our entitlernentlo such a remedy. Asdemonstraicd
in our Memorfalat page 188, supra,this Court has repeatedlyheldthat where, as
here, a State has commtited a breach of iis international legal obligationit
must pay reparations in order ta wipc out as far as possible al1 of the
consequences or its illegalacsoas to re-cstablishthe situation which would in
al1prubability have existedifsuckacts had not bcencommitted. In short, when
the darnage has been done, the United Siates and its nationals must be made
whole in so far as passible.
At the present time,of course,iisnoi possibleto measure thedamagc, in part
because the political situation in Iran precludes us from obtaining essential
inrorrnation, and in pari becauscthe damagc is actually continuing day by day.
For example,we know that there has been subsiantial physical damage to the
buildings included within the Embassy compound, but ilwould Lake an
extcnsivctcchnicalcvaluation of the damag in order to put a Financialvalueon
it, and thereis no way that such an evaluation can be made now. Again, we
know thar individualhostageshave been subjectedtu scvcrcpsychologicalstress
and may hüvcsustaincd physicalinjury as wcll,but bydefinitionwecannor have
access now for the purpose of dctermining an appropriate reparation figure
When the hostages have returned home and the United States prcmiscs have
becn rcturncd to our control, it will be possible to make the necessary
evaluation~,but not before.
Dcspite the impossibility ofdetermining the amouni of reparations at this
stage, we believe that we are clearly cntitlcdw to an immcdiate declaration
which will make clearto the world, indwding the Gavernmcnt of Iran, lhat
rcparations in someamount willeventuallybe due. The issueof our eniitlement
to some amount ofrcparations is ripe for judicial decision;given the nature of
the lranian conduct and theclarity of thc Iranian violations, 1çan think of no
conceivablereason whyour right to reparations should notnow bc dcclared in
principlc,thus narrowfngthe remainingissues betweenthe parties;and wethink
it likelythat sucha dcciaration willücceleratethe finalresolution of the dispute.
As pointed out in our Mernorialat page 189,suprat, he Court's 1974opinion in
the Fi~t~eriJsurisdic~rocasernakesplain that ilis cntirelyproper for the Court
to make a general declaration establishingthc principlc that compensation is
due, even though a further proceeding may bc neccssary in order to receive
evidenceand establish the amount. As I concludc my argument with respect to
the tcrms of the judgment, Mr. President, 1 wish to formally confirm to the
Court that the finalsubmissionsof the Government of theUniied Statcsarc as
stated in ils Memurial at pages I90 and 141,supra.316 DIPLOMATIC AND CONSUI.AR STAFF
attention to the policy of restraint which the United States has foiiowedin ils
relations with Iran during thc hostage crisis. In this connection JudgeMorozov
has asked the followingquestion:
"How would thc Unitcd Statcs Govcrnmcnt cxplain such well-known
acts on its partas the freeting of Iranian investments in the USA aiid
abroad which, according to the press and broadcast reports, amount to
some 12billion dollars?"
Thc facts arc that for many years the Iranian Government has maintained
verylargcdcpositsin Unitcd Statesbanks both in the United States and abroad.
In Lhcearly days of November, shortly aftcr thc scizurc of the Anierican
Em bassy, lranian government oficials threatencd suddcnly to withdraw a11
Iranian funds from United States banks, to refuse to accept payment in dollars
for oil, andto rcpudiate obligations owed to the United States and to United
Slütcsnü~ionals.Civcn thc cnormous sumsof moncy involvcd,those threatcned
actions by the Government or Iran constituied nothing less ihan an attack on
the stability of the world economy and the international monetary system.
Morcovcr, thc thrcüt by thc Iranian Govcrnmcnt to repudiate al1of the loans
made by United Stales banks and other instiiutions constituted a to~ülly
unlawfulthreat and placedinjeopardy biilionsof dollars or United Stasesdaims
against the Govcrnmcnt of Iran.
For thesc reasons the United States came forivard witha peaceful response
which WC considcrcd totally appropriate under accepted principlesof interna-
tionallaw and comity among nations. In responseto Iran's effortsto harm the
Unitcd Statcs cconomy and thc dollar, and having in rnind Iran's unlawful
detention of Arnericanhosiages, the President of thc Unitcd Stütessimplyfrozc
al1Iranian assets in United States control for the lime being, inpart simply to
inake it possiblc for United States claimants ibe made whole if the Govern-
ment of Iran carricd through with its thrcats to rcpudiate al1of itsobligations to
itclear that oncethe hostageshave beenreleasedthe United StateswikIbe willing
to opcn ncgotiations looking toward a rnutual settlement af claims, which in
turn will lead to the lifting of the îreeze. ln the mcantimc, the Unitcd States
rcgards thc frcçzc of Iranian assçts as a justified, prudentand proportional
measurc of restraint in rhc çircumstanccs.
In his second quesiion Judge Morozov kas also asked the following:
"1sil possible to resard such açts jthat is, 1iake il, ihe frcezc]21swellas
threats to useother unilateral measuresof coercion,d threais io useforce
against the Islamic Republic of Iran, as in conformity with the United
Nations Charter and with paragraph 47 (B) of the Court's Order of' 15
Deccrnbcr 1979,which rcquircd the United StatesGovernment not to take
any action, and to cnsure thano action is raken, which rnay aggravatc thc
tension between the two countries or render the existing dispule more
dificult of solution?"
Inrcspondingtothat question 1should note atthe outset thal thefreezingocthe
assets occurrcd morc than a month before the entry of the Court's Order of 15
Dccembcr,and WC arcquiteconfident that it was not theCourt's intentiowhen
ircntered that Ordcr, tcaluponthe UnitedStatcstolifttheexistingassetsfrceze.
Moreover,as WC pointed out inthe courseof the hcaringswhichtook placeon 10
December, under the jurisprudence of this Court and acccptcd principlcsof
international law,obedienceto aprovision ofthe kindçitedbyJudgeMorozov is
requiredonlyon a reciprocalbasis-which meansthat ihe UniledStateswouldbe
obligcdto obeythe Order onlyif Iran'didso aswell. Infact the United States has
cornplicdwith thc Ordcr, but Iran obviously kas not.
Asio thc suggestion inJudge Morozov'squcsiian that the United States rnay ARGUMENT OF MR OWEN 317
havethreatened to useforceagainst Iran, therchavc bccn no such thrcats inTact,
ülthough thc United States has drawn atiention botiothe rightsof the United
States under international law andLothe use of forcc and cocrcion by Iran in
violationof Iriin's obligations under paragraphs 3 and 4 of Articl2 of thc
United Nations Charter. As the Couri is aware, cvery cfïort which has been
müdc by the United States in seeking asolution to the prescnl crisis has bocn
pcüccful.
Juam Mo~ozov's QUEST~O NO.3 (pp 298-299,supra)
Judgc Morozov's third question asks whether the actionto whichhe referrcd
in hissecond question-mcaning particularly, again, the United States rreezeor
Iranian assets-arc in cornpliance with theprovisions of the 1955 Treaty of
Amity bctwccn thc United States and Iran.
The answcris that thc asscts freeze-wbich constituteapeacefulresponse so
the hostileactions previouslyiakcn by thc Govcrnmcnt of Iran4id not violale
the Treaty of Amity.As we have previouslyexplaincd in dciüil, on 4 November
1979,the Government or Iran began to engage insuslaincd violations of scveral
articles of the Treaiof Amity, including Article2, paragraph 4, Article 13,
Articlc 18and Article 19.Accordingly,under accepted principlesof treaty law,
as codifiedin thc VicnnaConvçntion on the Law of Treaties, the United States
was under no obligation, artcr 4 Novcrnbcto cxtcnd toIran thc trcaty bcnefits
to which Iran would have beenentitled if it had itsclf çomplicdwith theTrcaty
of Amity. Thcrc has bccn no violation of that Treatyy the United Statcs.
JUDGE Mo~ozov's Qu~?STNN ~NO. 4 (p. 299, supra)
In his fourth question Judge Morozov has asked whether the Uniicd Statcs
cvcr müdca written suggestion tothe Gavernmeni of Iran ditected lo bringing
ihc prcscnt disputcto arbitration as provided forin ArticleXXI, paragr2,of
the 1955 Trcaly of Amity. Thc answcr 1sthat the United States made no such
suggestion-and in that connectiun 1would mükc two brief observaiions. First,
aswe read ArticleXXI, paragraph 2:of the 1955Trcatyof Amity,it simplydnes
not provide for arbitration; indeed, it makes no mention or arbitration. Tbat
provisiondocscontçmplsitcthe possibilitythat disputes betweenthe partimay
be "satisfactorily adjusted by diplomacy", 1uwouldrcrnindthc Court that on
7Novembcr the Ayatollah Khomeiniflatlyforbade any diplornaticncgotiütions
between the Iwo Governmcnis. 1might add ihat this prohibition was in clear
violation, iour vicw, of Iran's obligatiunder paragraph 1 of Article XX1 or
ihc Trcaty of Amiiy,which ineiïeçt rcquircIran to providc an oppostunity for
consultations.1 respcctfullysribmit that there is absolutely no basis for a
suggestion that the United States has fail10 1Pveup toaiiy of its obligations
under Articlc XXI or to satisfy any of the preconditionstofiling suit in this
Court under that Article
JUUGE MOKOZOV Q'SIISTIO NNO. 5 (p.299, supra)
In his fifth qiiestion Jiidge Morozov has similarly enquired whether thc
United Siales, througha wriilen suggestionto Iran, soughtobring the dispuie
to arbitration as provided forby Article 13ofthe ConventionQnthe Prwcntion
and PunishmcnlofCrimcs agtiiiistIntcrnationally Protected Pei-sons,including
Diplumatic Agents.
Withrespect,1believcthat the United Statcshüsüddrcsscdthat question in its
Mernorial, at pages 154 and 155, supra, and also, if 1 rnay say so, in the
presentaiionmade here by Mr. Schwekl. We have urged,and continuc to urg,
that Article 13'spravisinn for arbitration assumesa cespondent State party
which recognize~its obligation to settleits dispuies by peaceful means-includ- ARGUMENT OF MR. OWEN 319
That cuncludes my answersto the questions of Judge Morozov, and 1 should
now, with the Court's permission, likcto turn to Judye Oda's questions.
JUDGE ODA'S QUESTION No. 1(p.299, supra)
Thcfirst ofJudgc Oda's Lhrccquestions isdivided inro two parts. First, Judgc
Oda kas askedwhether thereare any personnelamong the hostages to whom thc
YiennaConvention on Consular Relations aloncüpplieç?Our answer is that al1
of the United Statesconsular personnel involvcd wcrc çcrvingin a diplomaiic
mission on 4 Navember, with the rcsult that undcr Article 70 of the Vienna
Convention on Consular Rclations (to which Judgc Oda has rererred), al1such
consular personnel wcrc and are cntltled to cxactly the sarne privileges and
immunities as areenjoycd bydiplomatic agentsunder the ViennaConvention on
Diplomatic Relations. In short, thcrcrc no personnel arnong the hostages to
whom the Vienna Convention on Consulür Relations alone applies.
Judgc Oda's first ~UFSL~OIIalso enqwrred as to the significancewhich thc
Unitcd Statesüttaches toArticle70of the consular convention.The significancc
is exactly that implied by Judge Oda-that al1of the diplomatic and consular
agents held captivein Tehran are cntitlcd to the same privileges and immuni-
ties-namely the privilcgesand irnrnuniiiesconferreby the ViennaConvention
on Diplomatic Rclations.
JUDEE ODA'S QUESTION NO. 2(pp. 299-300, supra)
In his second question Judgc Oda has pointed out thal inthe United States
Memorial at page 171, supm, wc sct forth our then curreni knowledge of the
stalus of the United StatesConsulatcs in Tabriz and Shiraz, whose operations
were suspended in February of 1979.Judgc Odahas asked the United States to
supply any available information as to whal has happened lo these Consulates
from February 1979onwards, and 1am arraid that weare not in a position to
add vcry much to the facts which wereset îorth in the Memorial. Al1that 1can
add is tosay that from Febriiary 1979 until thc scizurc of these Consuiaies in
Novcmbcr 1974,the prcmises wereunder thecustodial care of locakemployees.
In November, or course. both of the Consulates werc seizcd and the Unitcd
States has no information asto the status of the propcrties since that tirne.
Juuci~ODA'SQUESTION No. 3 (p. 300, supra)
As his third and final question J~idgc Oda has cnquircd whcthcr it isthe
contention of the Unitcd States,in so far as theTabriz and ShirazConsulatesare
concerned, ihat Iran has an obligation todo anything more than protect thc
consular premises.As an exarnplc,Judgc Odü has askcd whether we contend
that Iran has an obligalion to accord fullfaciliiiesfor ihe operation of these two
consulates.
In rcsponse Jshould point oui that up until the present time,azany rate, Iran
hasevident1ydesiredto rnaintainconsular rclations with the United States. Iran
currently opcrates four consulatcs in the United States, locaied in Houston,
Texas, San Francisco, California, Chicago, Illinois and New York City. To the
cxtcnt thatlran wishesto continue such relationsithas an obligation to afford
the United States ruIl facilities,on a reciprocal basis, for the opcrofiour
corresponding consular posts in Iran. In thesc procccdinWC arc not contend-
ing thatIran hasan obligation to maintüin consular relations beiween the two
counrries, but, so long asconsular rclaiions cxist, lran mus1 accord us full
consular facilitiesand thc irnmuniticsthat follow therefrom.320 DIPLOMATIC AND COWSULAR STAFF
Mr. President, i-urningto your own qucstion (p. 312,supra),1shall bc plcased
to atternpt the furthcr clarification youhave requestcd of our viewsconcerning
exceptions to the obligations nomally owed a diplamatic mission. You have
asked specifcally if ihc rccciving State, conv~ncedof unlawful activity on iis
territoryby the sending Sratc'sdiplomatic mission or other services,may, by
reason of sanction, necessity or self-defence, depart Frorn the obligations
normaIly incumbent upon it with respect ta diplomatic and consular relations.
Fimllet mesay ihat suchcxccptionsta the generaErulcof inviolabilityas have
bccn discussedin the International LawCommissionand elsewhercrelaie to the
ngbt of an individual-such as an individual police afficer-to defend himscll*
againstan actual assault or similaraction by a diplornatic ageAs 1 said in my
answerto your carlierqucstion, evensuch verylimitcdcxccptions are controver-
sial and, of course, can havc no conceivableapplicationto thc present case.
On the oiher hand, Mr. Presidcnt,your question rnayrefer Io self-defcncein a
dirercnt sense-that is,the State'sinherenr right to self-derenas,confirmedin
Article51 of the Unitcd Nations Charter. Iwould obscwc that the right ofself-
derenceisemphaticallynot a right to açt lawlesslyThe Statc, whcn itacrsin the
exerciseof its right of sdf-dcfcnce or on the basis of thc ultirnate necessofies
national existence,doesnat opcrate in a realm beyond the reachof internationa!
law. The law of arrned conflict-with which, of course, ihe Court is familiar-
embodies a whole host of restrüints upon State conduct, cvcn in the most
compelling of circumstances. We think it tmostsignificani that thc taking of
hostagesis absolutcly proscribed,even inarrned conflict.Moreover'authorities
from Grotius to Lauierpacht ügrccthat if a State like Iran i'cclsitselfinjured by
another, some rom of rcprisals may be appropriate, but reprisais against the
diplomats of the onending Stale, either as individuals oras a mission, arc
absolutely prohibited. The necessity Tor continuing respect for diplomatic
inviolability, evtn in timcof war, is crystallized in Article 44 of the Vienna
Convention, which obligates a recciving Statc ro permit and facilitatc thc
dcpariurc of diplomats representing a country with which that State is at war.
Indeed, if lran wre now at war with the United States, it would have a clear
obligation, under Article 45 of the Conve~ition, to "rcspcct and proteci the
United States Ernbassy".
FinallyEshouId notc thas if Iran at any timehad felt that its supremesecurity
intcrcsts so required, it could or course have compelled al1 Unitcd States
diplomaticpersanncl ta depart from Iran on a wholcsalcbasiç, but 1submit ihai
thereçan be no possiblelegaljustification [or whaildid in faci on 4 Novembcr
1479.
JUDGE GROSQ ' UESTIO (Np.312,supra)
FinallyJudgc Gros has enquired as to the gricvanceswhich,acçording io the
understanding oTthe Govcrnment of the United States, Iran may bring before ,
thc Unircd Nations commission.
Firss I would point out ihai the commissionhas suspendedits operations for
the time beiny, Assuming,howcvcr, that the commission rcsiimesits work, the
Secretary-General has dcclared that the commission'sfunctlon will be to hear
whatever grievances Iran rnay wish to bring before it. That is to say, the
commission wouldreceive whatevcr lawfullyobtained information the Iranians
wantcd to present to the commission and thereafter the commission would
report on the basis of that information.1should ernphasize,however, that the
commission is not ta bea tribunal which would reach conclusionswhich would
be binding either on lran or on the United States.
That is our answcr to Judge Gros' question,but 1wish to make one furihcr
observation on the subjectif1 may. In thiscase the United States has advanced ARGUMENT OF MU. OWEN . 321
very specificclaimsagriinsiIran and this Court,1 submit, has a duty to decide
whcther those claimsare valid. FfIran harboursany allcgcdgricvanceswhich it
considers io conslilutt: some sort ofdcfcncc against the claims of the United
Siatcs,it has beenaffordedeveryopporlunity to bring thosedefencesbefore this
Court. The factisihat lran hasprcscntcd no dcfencesor counter-claimshereand
for lhat rcason 1 respectfullysubrnit lhat lhc Court cannot properly concern
itselr with any gricvanccs or allegations whiçh may have been voiccdby Iran
elsewhere.
In concludingrnyobservalionson JudgcGros' question 1should likeagain to
rcfcr the Court to Judge Lachs' opinion in thc AE~ECI S~ICÇIrin~in~n~ulShelf
casc, and to the Court's Opinlon in the ICA0 Counrilcase. Judge Lachs, quite
propcrly in our vicwopoinied out that "notwithstanding thc interdependenceof
issues sornc may be isolated, given prioriiy and iheir solution sought in a
separale îorrn". Whilclran contends that its grievances,whazevcrthcy may be,
are interconncçted with the claims of the United Statcs bcforc this Court, a
contention that the Unilcd Statcshas not accepted,Iran has choscnEOuscJudge
Lachs' phraseto isolatethose grievinccs Eromthesepsoceedingsand ro air them
berore a separatc body, namely the United Nations commission. But thai
choice-Iran's choicc-not to utilizethe processof ihis Court,cannot constitute
an obstacle to the Court's considcration of the claimsof the United Statcs over
whichthe Court assuredlyhasjurisdiction. 1t would beextraordinary, to say thc
Icast,ta adapta rulewhich permitsa rcspondcnrStatc to frustrate resort to this
Court mcrely by referrfng to generalizedand eniircly hypathetical defenceor
countcr-claims which it refuses tu present as such to theCouri and which it
in~cndslo bandle instead through an entirely non-judicial hcaring before some
other forum. To quote the Court in the ICA0 Counciicasc:
"The cornpetence of thc Court must depend on the character of the
dispute submitted ioiiand on thc issucsthus raised, not on those defences
on the merits or olher considerations which becomerelevant only after thc
jurisdictional issucshavc bccn scttlcd."
This rulc, wc subrnit, appliesuJhrti(irwhen the Rcspandcnt hüs not even
appeared in order lo present such potcntial dcfcnccsar other consideralions Eor
which it is openly seekingconsideraiion clsewherc.
CQNCLUS~ON~
On hchalf of the Government of'ihe United States 1belicvethat 1 have now
submittcdan ainswcrto cveryquestion whichhas beenpropounded by the Court
and wiih the Court's permission 1 would propose naw to conclude ihc
prescntation of thc Government or the United Siatcs.
In doing so 1would hark back io 19Dccembcr,at which tirne the Court was
consideringthc United States requesi foran indication of provisional measures
and 1 taok the liberty of urging thc Court to act on that request w~ththe
maximum possiblc expediiion. 1 emphasized that at that time more ihan 50
American lives wcrc in immincnt peril and thai itwas critically important to
thosc individuals,as wellas the world cornmunity and thc rule of law ihai the
judicial runçiion bc pcrformcd as quickly as possibleThe Govcrnmcnt of thc
United Statesisgrateful to the Couri Torils action in respondtng to rhat appeal
and granting the requesied relierjustfivdays after thc rcquest was heard.
Ihopc that the Court will recall also that in the days immediatciy following
the Court's Order of 15Dcccnibcrthc United States pressed rorward with this
case asrapidly as possible.Wefilcdour Mcmorial on 15January, wellahead of
ihc schedulethat wouldbe fdllowedin a normal casc.Moreover, it wasour hope
at that time that theranian Governmeni would filca Counter-Mernorial on 18
February, in accorda/,= wiih the Orders of the Court, in ordcr ihat the Parties322 DIELOMATIC AND CDNSULAR STAFF
could corncto gripswith thedispute betweenthcm. In mid-February of this year
wewere siill anxious tn proceed wiih this case as rapidly as possible.
In one of his questions,Judge Morozov has pointed out that on 19 February
wefound it ncccssaryta ask this Court for a bricr postponcmcnt of anyfurthcr
oral hcarings.Thc rcason, as 1havc cxplaincd, wasthat thc Sccretary-Gcncral'ç
appointmcnt of the Unitcd Nations commissionhad raiscd thc hopc that when
the commission had heard Iran's grievances the Government of Iran would
decideto relcasethe hosiagesand wewereconccrnedthat if weappeared berore
the Court and made strong charges againsl Iran,as we have inihese pas1three
days, the confinemenior the hostages might be unnecessarilycontinued. 1want
to assure the Court, however, that throughuut the entire period the United
States has bccn dctcr~nincdto press the casc Forwardjust as rapidly as ircould,
consistent with thewclfarcof the Amcricans who arc in captivity in Tchran.
Mr. Presideni, as you know, our tenuous hopes for a quick release or the
hosiages in February were shaitered in early March when the United Nations
commission Found itself unable to purswe its mission. In short, the situation
today is vcry difcrcnt than it was when wc asked for thc bricf dcYayin thc
hcarings.The signals,if Imay useihat iem, ihüt are comingoui of Iran suggesi
that the detentionof the hostages may continue indefinitelyand no one in this
cowrtroom has any way of knowing how long the Government or Iran will
continue to bold the hostages. Since the Governrnenl of the United States
continues to view this Courtas the most promising hopefor bringing about the
ultima_tereleaseof the hostagesthrough the entry of a binding and enforceable
final judgment, the United States wishes at this time to press forward to
judgment as rapidly as possible.
Given the îactthat 1once urged expedition upon the Court and then urged a
briefdelay, I am reiuctant to prcsumeupon the Court by requestingcxpcditiaus
action now, and yet 1fccl duty bound to do so. In making this requcst the
primary focus of my Governmenl's inieresi is upon the well-beingof the 53
ArnericansstilYheld in capiiviiy, butmy Government 1smotivated by broader
concerns as well.As 1 staied imy openhg i-cmarkstwo days ago, ifii becomcs
clear that a countrv like Iracan seizedinlomaiicagents and hold them hosta~e
Torindefiniie peri6ds of time in order t6 coerce d&ired political action, it cin
oniy lcad to a complcte unravelling or the fabric or peacerul international
relaiions. For rhese reasons our cal1for judgment is urgent. Sincc the dispute
beforcthe Court continues to imperil international peaçe, 1submit that the high
responsibilitiesimposed upon the Court by the Charter of the United Nations
cal1 For the cntry of thc final judgment rcqucsted in this case as rapidly as
possible.
On behalf of the Government of the United States of Amcrica 1rcspcctfully
rcqucstthat ~hcCourt enterjudgmeni in favour ofthe United Siatesand againsi
the Islamic Republic of Iran. ÇLOSINÇ OF THE ORAL PROCEEDlNGS
Thc PRESIDENT: Mr. Owen, 1undcrstand you havealrcady deposited yaur
final submissions' with thc Reg~strar1 ihank Lhe Agcnl and Counsel of the
Unilcd Siaiesfor the assistancewhich thehiivegiventhc Court. Bcroreclosing
ihc hcaringsI wouldask thc Agentof the Unitcd Statcswhether hisGovernment
1snow in a position to supply thc Couri with detaior the narncsand officia1
functions of the personswho arc held as hostages in TehranThe replyIo ~his
request, in accordancewiih Article 61, püragraph4or the Rulcs,may bc made
inwriting and 1would ask that the reply be madc noi later than Monday next,
24 March '.Thc hearingsare (husconcluded.The Agentof the Unitcd States is,
howcver, askcd io rernainat the disposal of the Cour1 to providc any furthcr
information which ilmay require, and with that proviso 1 dcclare thc oral
procccdingsin the case conccrning UnitedSralesDiplrimaticand Consuiar SfuJ
in Tehrailclosed.
The Couri rose at 1I0.m. SIXTHPUBLlC SITTING (24 V 80, IO a.m.)
Presenr [Sccsitting of 18 11180, Judge Baxtcr absent.]
READINGOF THE JUDCMENT
The Court rnccts ioday to read in open court, pursuant to Article 58 of the
Statute or the Court, its Judgment in the casc concerning Uniicci S~ïrtes
Diplornuticand Corisillar Stcf in Tehrrin, brought by thc United States or
America against the Islamic RepublicoFIran. Due notice of the prcsent sitting
has been givcn to the parties, and1 note the prcsence in court of the Deputy
Agcnts and Counsel of the Unitcd States.
Much to the regrelof his collcagues, Judge Baxter isunable to bepresent
today. Having participaled fully in the case up to an advanccd stage in the
dclibcrations,hehad unfortunately thcn to enter hospitiil,and subsequentlyhad
to rcturn to his own country for mcdical treatrnent.
Having piirticipated in the public hcarings and the greaicr part of the
deliberationsin the case,Judge Baxterwasentitled to pariicipate in thcfinalvote
on the Judgment.
The relevant provisions of the Court's Rcsolution concerning its lntcrnal
JudicialPracticcprcscribcthat a Judge who,by rcason of hisparticipation in thc
publicand interna1proccedingsof the case i!qualifiedto participate in the final
vote but who is unable io aticnd in person un the occasion of thc Court's final
adoption of its judgment or opinion, may ncverthelessrecord his votc in such
manner as Lhe Couri müy dccide to be compatible with its Statute, any doubr
bcing settled by the Court itself.
In accordancc with this provision, approprialearrangements wcrc made Tor
Judgc Baxter to participâte in thc votc, and the Judgment delivercd today 1s
accordinglythe Judgmcnt of the full Court.
1 shalknow read the tex1 or rhc Judgment, omiiiing-as iscustomary-the
apening formal recitals.
[The President rc~idsparagraphs 10to 95 of thc Judgment'.]
1 nowcal1upon thc Registrar to read the opcrativc clauseof the Judgment in
French.
[The Registrar reads opcrütivc clause in French2.]
In accordance with Arliclc 95, paragraph 1,of the reviscd Rules of Court
adoptcd in 1978, the Judgrnent includcsthe namesof thejudges constituting the
majority on eaçh voie; these details arc also given in the Press Communiqué
issued today.
Judge Lachs appcnds a scparate,opinion Lothe Judgment; Judges Mormov
and Tarazi append disscntingopinions tu the Judgmenl
In addition to the copiesof the Judgment for the parties, a limiicdnumber of
' I.C.J. Rcport~1980,pp. 8-45.
'Ibid.pp. 44-45. READlNG OF THE JUDGMENT 325
copies ofthc stencillcdtcxtof thc Judgrncnt and opinions is availahlebr the
public;the usualprinled edition will bc availablcin approximaiely two wceks'
tirne.
(Srgned) Humphrcy WALUOCK,
Prcsideni
(Signtd) S.AQUAKONE,
Registrar.
Plaidoiries, Procès-verbaux des audiences publiques tenues au Palais de la Paix, à La Haye, du 18 au 20 mars et le 24 mai 1980, sous la présidence de sir Humphrey Waldock, président