Oil Platforms (Islamic Republic of Iran v. United States of America) - Judgment on preliminary objection

INTERNATIONAL COURT OF JUSTICE
Peace Palace, 2517 KJ T.heHague. Tel.(070-302 23 23).Cables: lntercourt, The Hague.

Telefax {070-364 99 28). Telex 32323.

Communiqué
unofficial
for immediate release

No. 96133
12 December 1996

Case conceming Oil Platforms
aslamic Republic of Iran v. United States of America)

Judgment on preliminacy oQjection

The Hague, 12 December 1996. Today, the International Court of Justice delivered a

Judgment in the above case by which it rejected the preliminary objection to itsjurisdiction raised
• by the United States.lt found that it bad jurisdiction to deal with the case on the basis of
Article XXI, paragraph 2, of the Treaty of Amity, Economie Relations and Consular Rights between
the United States and Iran, signed in Tehran on 15 August 1955 which entered into force on
16 June 1957.

The United States had argued that the Court 1ackedjurisdiction, on the one band, because the
Treatyof 1955, which contained commercial and consular provisions, was not applicable in the

event of the use of force. The Court found in this respect that the Treaty, which does not expressly
excJude any matters from the Court'sjurisdiction, imposes on each of the Parties various obligations
on a variety of matters. Any action incompatible with those obligations is unlawful, regardless of
the means by which it is brought about, including the use of force. Matters relating to the use of
force are therefore ~ot excluded from the reach of the Treaty.

Other arguments of the United States bad related to the scope ofvarious articles of the Treaty

of 1955. The Court found in this respect that, considering the abject and purpose of the Treaty,
Article I should be regarded as fixing an objective (of peace and friendship), in the light of which
the other Treaty provisions were to be interpreted and applied, but thatuld not, taken in
isolation, be a basis for the Court's jurisdiNeither could Article IV, paragraph 1, of the
Treaty, the detailed provisions ofwhich concerned the treatment by each party of the nationals and
companiesof the other party, as weil as their property and enterprises, but which did not cover the
actions carriedt in this case by the United States against Iran, provide such a basis.

With regard to Article X, paragraph 1, of the Treaty, however, the Court found that the
destructionf the Iranian ail platforms by the United States complained ofby Iran was capable of
having an effect upon the export trade in Iranian oil and, consequently, upon the freedom of
commerce guaranteed in that paragraph.The lawfulness of that destruction could therefore be
evaluatedin relation to that paragraph.

As a consequence, there existed between the Parties a disputehe interpretation and the

application of Article X, paragraph 1, of the Treaty of 1955; that dispute feil with in the scope of
the compromissory clause·in Article XXI, paragraph 2, of the Treaty; and the Court therefore had
jurisdiction to entertain the dispute.

* - 2 -

The full text of the operative paragraph reads as follows:

"THE COURT,

(1) rejects, by fourteen votes to two, the preliminary objection of the United States
1
of America according to which the Treaty of 1955 does not provide any basis for the
jurisdictionf the Court;

IN FAVOUR: President Bedjaoui; Juages Guillaume, Shahabuddeen,
Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma,
Vereshchetin, Ferrari Bravo, Higgins, Parra-Ajanguren; Judge ad hoc Rigaux;

AGAINST: Vice-President Schwebel; Judge Oda;

(2) finds, by fourteen votes to two, that it bas jurisdiction, on the basis of

Article XXI, paragraph 2, of the Treaty of 19551 to enterlain the claims made by the Islamic
Republic of Iran under Article X, paragraph 1,~reaty.t •

IN FAVOUR: President Bedjaoui; Judges Guillaume, Shahabuddeen,
Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma,
Vereshchetin, Ferrari Bravo, HigParra-A Judgegauhoc Riga;x;

1
AGAINST: Vice-President Schwebel; Judge Oda."

•

The Court was composed as follows: President Be1jaoui'; Vice-President Schwebel; Judges Oda,
Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin,

Ferrari Bravo, Higgins, Parra-Aranguren; Judge ad hoc RigaJx; Registrar Valencia-Ospina.

*

Judges Shahabuddeen, Ranjeva, Higgins and Parra-Aranguren and Judge ad hoc Rigaux append
separate opinions the Judgment of the Court.

Vice-President Schwebelnd Judge Oda append dissenting opinions to the Judgment of the Court.

(A brief summary of the opinions may be found in the knnex to this Press Communiqué.)

•

The printed text of the Judgment and the opinions appended to it will become available in due
course (orders and enquiries should be addressed to the Distribution and Sales Section, Office of the

United Nations, 1211 Geneva 10; The Sales Section, United Nations, New York, N.Y. 10017; or any
appropriately specialized bookshop).

A summary of the Judgment is given beloItbas been prepared by the Registry for the use of
the Press and in no way involves the responsibilitCo~f tIt an.ot be quoted against the text
of the Judgment, of which it does not constitute an interpretation.

* • - 3 -

Summary of the Judgment

Institution of proceedings and history of the case (paras. 1-11)

The Court begins by recalling that on 2 November 1992, the Islamic Republic of Iran
instituted proceedings against the United States of America in respeca dispute

"aris[ing] outof the attack (on) and destruction of three offshore oil production
complexes, owned and operated for commercial purposes by the National lranianOîl

Company, by severa! warships of the United States Navy on 19 October 1987 and
18 April 1988, respectively".

In its Application, Iran contended that these acts constituted a "fundamental breach" of various
provisions of the Treaty of Amity, Economie Relations and Consular Rights between the
United States of America and Iran, which was signed in Tehran on 15 August 1955 and entered into
force on 16 June 1957 (hereinafter called "the Treaty of 1955"), as weil as of intemation al 1aw.

The Application invokes, as a basis for the Court's jurisdiction, Article XXI, paragraph 2, of the
• Treal)' of 1955.

Within the extended time-limit for the filingf the Counter-Memorial, the United States
raised a preliminary objection to the jurisdiction of the Court pursuant to Article 79, paragraph 1,
of the Rules of Court. Consequently, the proceedings on the merits were suspended. After Iran

bad filed a written statement ofits observations and submissions on the preliminary objection raised
by the United States within the time-Jimit fixed, public hearings were held between 16 and
24 September 1996.

The following final submissions were presented by the Parties:

On bebalf of the United States,

"The United States of America requests that the Court uphold the objection of
the United States to the jurisdiction of the Court in the case conceming Oil Platforms
(islamic Republic oflran v. United States of America)."

On behalf of Iran,

"In the light of the facts and arguments set out above, the Govemment of the
Islamic Republic of Iran requests the Court to adjudge and declare:

1. That the Preliminary Objection of the United States is rejected in its entirety;

2. That, consequently, the Court bas jurisdiction under Article XXI (2) of the Treaty of

Amity to entertain the claims submitted by the Islamic Republic of Iran in its Application
and,Memorial as they relate to a dispute between .the Parties as to the interpretation or
application of the Treaty;

3. That, on a subsidiary basis in the event the Preliminary Objection is not rejected outright,
it does not possess, in the circumstances of the case, an exclusively preliminary character
within the meaning of Article 79 (7) of the Rules of Court; and

4. Any other remedy the Court may deem appropriate." ' - 4- 1

Article XXI, paragrap2, of the Treaty of 1955 and the nature of the dispute (paras. 12-16)

After summarizing the arguments put forward in the Application and in the course
of the subsequent proceedings, the Court concludes that lnu\. claims only that Article 1, Article IV,

paragraph 1, and Article X, paragraph 1, of the1rr1955 have been infringed by the
United States athat the dispute thus brought into being i'ssaid to fall within the jurisdiction of
the Court pursuant to Article XXI, paragraph 2, of the samb Treaty.
1
1
The United States for its part maintains th1t the AppJ,ication of Iran bears no relation to the
Treaty of 1955. 1t stresses that, as a consequence, the dispute that bas arisen between itself and
Iran does not fall within the provisions XXpara ~,rf e praty and deduces from

this that thert must find that it Jacks jurisdiction it.deJJ with
1
The Court points out, to begin with, that ~heoot contest that the Treaty of 1955

was in force at the datee filing of the Application of Itan and is moreover stiJl in force. The
Court recalls that it bad decided in 1980 that the Treaty \of 1955 was applicable at that time
(United States Diplomatie and Consular Staff in Tehran. Judgment. I.C.J. Reports 1980, p. 28,
para. 54); none the circumstances brought to its knowledge in the present casitwould cause

now to depart from that view.

By the terms of Article XXI, paragraph 2, of that Treaty:

"Any dispute between the High Contracting Pas to the interpretatorn
application of the present Treaty, not satisfactorily a;djusted by diplomacy, shaH be
submitted to the International Court of Justice, unleSs the Higb Contracting Parties

agree to settlement by sorne other pacifie means." ,

It is not contested that severa! of the conditions laid dbwn by this înthehave been met

present case: a dispute bas arisen between Iran and the United States; ît bastoot been possible
adjust that dispute by diplomacy and the two Sn~tagreed "to settlement by sorne other
pacifie means" as contemplated by ArticleOn the pther band, the Parties differ on the
question whether the dispute between the two States withto the lawfulness of the actions

carried out by the United States against the Iranian oill platforms is a dispute "as to the
interpretationapplication" of the Treaty of 1955. In ord;er to answer that question, the Court
cannatlimit itself to noting that one of the Parties maintaîrts that such a dispute exists, and the
'
other denies it. It must ascertain whether the violations of the Treaty of 1955 pleaded by Iran do
or do not fall within the provisions of thwheteatyahaco~squence, the dispute is one
which the Court bas jurisdiction ratione materiae to entertain, pursuant to Article XXI, paragraph

Applicabilitof the Treaty of 1955 in the event of the use of force (paras 17-21)
1
The Court first deals with the Respondent's argument tpat the Treaty of 1955 does not apply
to questions conceming the use of foIn this perspective, the United States contends that,

essentially, the dispute relates to the lawfulnessylnaval forces of the United States that
"involved combat operations" and that there is simply no relatbetweenthe wholly
commercial and consul ar provisions Treaty and A~plis ad a moirol,which focus

exclusively on allegations of unlawful uses of a1med force.

Iran maintains that the dispute that bas ar~seParties concems the interpretation

or application of the Treaty of 1955. lt therefore requests that!the preliminary objection be rejected, - 5 -

or, on a subsidiary basis,f it is not rejected outright, that it should be regarded as not having an
exclusively preliminary character within the meaning of Article 79, pacagraph 7, of the Rules of
Court.

The Court notes in the first place that the Treaty of 1955 contains no provision expressly

excluding certain matters from the jurisdiction of the Court. It takes the view that the Treaty of
1955 imposes on each ofthe Parties various obligations on a variety ofmatters. Any action by one
of the Parties that is incompatible with those obligations is unlawful, regardless of the means by
which it is brought about. A violation of the rights of one party under the Treaty by means of the
use of force is as unlawful as would be a violation by administrative decision or by any other

means. Matters relating to the use of force are therefore not per se excluded from the reach of the
Treaty of 1955. The arguments put forward on this point by the United States must therefore be
rejected.

Article 1 of the Treaty (paras. 22-31)

In the second place, the Parties differ as to the interpretation to be given to Article 1,
Article IV, paragraph 1, and Article X, paragraph 1, of the Treaty of 1955. According to Iran, the
• actions which it alleges against the United States are such as to constitute a breach of those
provisions and the Court consequently bas jurisdiction ratione materiae to entertain the Application.

According to the United States, this is not the case.

Article 1of the Treal)' of 1955 provides that: "There shall be firm and enduring peace and
sincere friendship between the United States ... and Iran."

According to Iran this provision "does not merely formulate a recommendation or desire ... ,
but imposes actual obligations on the Contracting Parties, obliging them to maintain long-lasting
peaceful and friendly relations"; it would impose upon the Parties "the minimum requirement ...
.to conduct themselves with regard to the other in accordance with the principles and rules of
general international law in the domain of peaceful and friendly relations".

The United States considers, on the contrary, that Iran "reads far too much into Article 1".
That text, according to the Respondent, "contains no standards", but only constitutes a "statement
of aspiration". That interpretation is called for in the context and on account of the "purely
commercial and consular" character of the Treaty.

The Court considers that the general formulation of Article I cannot be interpreted in isolation
from the abject and purpose of the Treaty in which it is inserted. There are sorne Treaties of
Friendship which contain not only a provision on the lines of that found in Article 1 but, in
addition, clauses aimed at clarifying the conditions of application. However, this does not apply

to the present case. Article 1 is in fact inserted not into a treaty of that type, but into a treaty of
"Amîty, Economie Relations and Consular Rights" whose object is, according to the terms of the
Preamble, the ''encouraging [of] mutually beneficiai trade and investments and closer economie
intercourse generally" as weilas "regulating consular relations" between the two States. The Treaty
regulates the conditions of residence of nation ais of one of the parties on the territory of the other

(Art. Il), the status of companies and access to the courts and arbitration (Art. III), safeguards for
the nationals and companies of each of the contracting parties as weil as their property and
enterprises (Art. IV), the conditions for the purchase and sale of real property and protection of
intellectual property (Art. V), the tax system (Art. VI), the system of transfers (Art. VII), customs
duties and other import restrictions (Arts. VIII and IX), freedom of commerce and navigation

(Arts. X and XI), and the rights and duties of Consuls (Arts. XII-XIX).

lt follows that the abject and purpose of the Treaty of 1955 was not to regulate peaceful and
friendly relations between the two States in a general sense. Consequently, Article 1 cannat be
interpreted as incorporating into the Treaty ali of the provisions of international law conceming - 6 -

such relations.Rather,by incorporating into the body of the Treaty the form of words used in
Article 1, the two States intended to stress that peace and fnendship constituted the precondition
~ 1
fora harmonious development of their commercial, financial and consular relations and that such
a development would in tum reinforce that peace andf~end sfollwsp .at Articl1 must
be regarded as fixing an objective, in the light of which ithe other Treaty provisions are to be

interpreted and appliedThe Court further observes th1tt does not have before it any lranian
document in support of Iran's position. As for the United States documents introduced by the two
Parties, they show that at no time did the United States regJd Article I as having the meaning now
1
given to it by the Applicant.Nor does the practice followed by the Parties in regard to the
applicationof the Treaty lead to any different concl1sions.

ln the light of the foregoing, the Court considers that the objective of peace and friendship
proclaimed in Article 1of the Treaty of 1955 is such as to throw light on the interpretation of the
1
other Treaty provisions, and in particular of Article1 IV and X. Article 1 is thus not without legal
significance for such an interpretation, but cannat, taken in isolation, be a basis for the jurisdiction
of the Court.

Article IV, paragraph 1, of the Treaty (paras. 32-36)

ArticleV, paragraph 1, ofthe Treaty of 1955 provides that:

"Each High ContractinPartyshall at ali times aclord fair and equitable treatment

to nationals and companies the other High Contradting Party, and to their property
and enterprises;haH refrain from applying unreasonable or discriminatory measures
that would impair their legally acquired rights andsts; and shaH assure that their

lawful contractual rights afforded effectimea on e~forcement, in conformity
w;th the appHcable laws_" i

The Court, with regard to the arguments advanced by the Parties, observes that Article IV,
paragraph 1, unlîke the other paragraphs of the same Ariicle, does not include any territorial

limitation. It further points out that the detailed p1ovisions df that paragraph concem the treatment
by each party of the nationals and companies of the othet party, as weil as their property and
enterprises.uch provisions do not cover the actions carrietl çmt in this case by the United States

against Iran. Article IV, paragraph 1, thus does not 1down any nonns applicable to this
particular case. This Article cannot therefore fobasihof~the Court's jurisdiction.
i

Article X, paragraph 1, of the Treaty (paras. 37-52)

Article X, paragraph 1, the Treaty of 1955 reads as follo"Between the territories of

the two High Contracting Parties there shall be freed~omme ard caeigation."

Itbas not been alleged by the Applicant that any mi!Jary action bas affected its freedom of

navigation.Therefore, the question the Court must declinarder to determine its jurisdiction,
is whether the actionsof the United States complained of by Iran bad the potential to affect
"freedom of commerce" as guaranteed by the provisiquo aboee.d
1
1
Iran has argued that Article X, paragraph 1, do1s not contemplate only maritime commerce,
but commerce in general; while according to the Unite~tat ehsword "commerce" must be

understood as bei.ng confined to maritime commerce; as being confined to commerce between the
United States andIra and ~s referring solely to the actuallsale or exchange of goods.

1
Having regard to other indications in the Treaan intention of the parttosdeal with
trade and commerce in general, and taking into account the èntire range of activitiesinealt with
1
the Treaty, the view that the word "commerce'' in Article X, paragraph l, is confined to maritime
commerce does not commend itself to the Court. - 7 -

In the view of the Court, there is nothing to indicate that the parties to the Treaty intended

to use the word "commerce" in any sense different from that which it generally bears. The word
"commerce", whether taken in its ordinary sense or in its legal meaning, at the domestic or
internationallevel, bas a broader meaning than the mere reference to purchase and sale. The Court
notes in this connection that the Treaty of 1955 deals, in its general articles, with a wide variety

of matters ancillary to trade and commerce; and refers to the Oscar Chinn case in which the
expression "freedom of trade" was seen by the Permanent Court as contemplating not only the
purchase and sale of goods, but also industry, and in particular the transport business.

The Court further points out that it should not in any event overlook that Article X,
paragraph 1, of the Treaty of 1955 does not strictly speaking protect "commerce" but "freedom of
commerce". Any act such as the destruction of goods destined to be exported, or capable of
affecting their transport and their storage with a view to export, which impedes that "freedom", is

thereby prohibited. The Court points out in this respect that the oil pumped from the platforms
attacked in October 1987 passed from there by subsea line to the oil terminal on Lavan Island and
that the Salman complex, abject of the attack of April 1988, was also connected to the oit terminal

on Lavan by subsea tine.

The Court finds that on the material now before it, it is indeed not able to determine if and
to what extent the destruction of the Iranian oil platforms bad an effect upon the export trade in

Iranian oil; it notes nonetheJess that their destruction was capable of having such an effect and,
consequently, of having an adverse effect upon the freedom of commerce as guaranteed by
Article X, paragraph 1, of the Treaty of 1955. lt follows that its lawfulness can be evaluated in

relation to that paragraph.

*

In the light of the foregoing, the Court concludes that there exists between the Parties a
dispute asto the interpretation and the application of Article X, paragraph 1, of the Treaty of 1955;
that this dispute falls within the scope of the compromissory clause in Article XXI, paragraph 2,
of the Treaty; and that as a consequence the Court bas jurisdiction to entertain this dispute.

The Court notes that since it must thus reject the preliminary objection raised by the
United States, the submissions whereby Iran requested it, on a subsidiary basis, to find that the

objection did not possess, in the circumstances of the case, an exclusively preliminary character,
no longer have any abject.r----------------------- -

t

Annex to Press Communiqué No. 96133

Separate opinion of Judge Sbababuddeen

ln his separate opinion, Judge Shahabuddeen observed that possibilities for improvement did not
prevent him from giving support to the dispositif in the form in which it stood. However, he was of the
view that the jurisdictional test which the Court had used precluded it from asking the right questions.

Effectively, the Court had sought to make a definitive determination of the meaning ofthe 1955 Treaty
between the Parties. ln Judge Shahabuddeen's view, the Court should merely have asked whether the
construction of the Treaty on.which the Applicant relied was an arguable one, even if it later tumed out
to be incorrect. This was so far the reason that the question at this stage was not whether the Applicant's

claim was sound in law, but whether the Applicant was entitled to an adjudication of its claim. The
respectful impression with which he left the case was that the neglect to distinguish between these issues
as consistently as was required and to apply the right test meant that the principle on which the Judgment
was constructed was not adequate to do full justice to either Party; it created unnecessary disadvantages
for both.

Separate opinion of Judge Ranjeva

After setting out his reasons for voting in favour of the Judgment, Judge Ranjeva nevertheless

criticized the reference to the first paragraph of Article X of the Treaty of 1955; that reference might
render the reading of the Judgment difficult. The Court'stitle of jurisdiction was the compromissory
clause, whose terms raised no particular problem of interpretation. But in transposing the reasoning
adopted in the case conceming Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia andHerzegovina v. Yugoslavia), bad the Judgmentnot gonebeyondthe abject

of the preliminary objection procedure? The problern, the author of the opinion acknowledged, resided
inthe fact that the objections were envisaged from the standpoint of their scope and significance and not
from that of their definition and that, in reality, it was not easy to draw a distinction between questions
appertaining to the preliminary objections procedure and questions appertaining to the merits of the case.

In the view of Judge Ranjeva, the circumstances of the case did not warrant the transposition of the
analytical method adopted in the case conceming Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), in which the Court first
had to make a determination.on a condition of the applicability of the compromissory clause. Such a
condition was lacking in the present case, as the preliminary problem related more to the applicability in

general of the Treaty of 1955 than to that of the compromissory clause. That being sa, Judge Ranjeva
considered, it was for the Court not to state whether the arguments were true or false from the legal
standpoint but to ensure that there was nothing absurd about them or nothing which ran counter to the
norms of positive law. Hence, unless the objection related to the compétencede la compétenceas in the
case conceming Application of the Convention on the Prevention and Punisbment of the Crime of

Genocide Œosnia apd Herzegovina v. Yugoslavia), or unless the objection was of a general nature, as in
the present case, the Court's.conclusion could but be limited to an affirmative or negative reply to the
objection, as otherwise it would run the risk of raising a problem of legal prejudice. Judge Ranjeva
regretted that the interpretation of Articles 1 and IV bad been made independently and in a strictly
analytical framework. Article 1implied a negative obligation of conduct inherent to the prescriptions of

amity and peace and whose function was to shed light on the understanding of the othertreaty provisions.
That being so, the author of the opinion wondered whether one was justified in thinking that Article IV
excluded from its domain the effective and voluntary conduct of one of the litigants with respect to a
company falling within the jurisdiction of the other. Lastly, the explicit reference to Article X raised the

problem of the integrity of the rights of the United States of America: how was the link of connexity
established as betweenfreedom of commerce and navigation and a possible claim for reparation as a result
of the destruction of warships? ln conclusion, Judge Ranjeva considered that the interpretation of the
"bases of jurisdiction" did not affect the rights of the Parties, if the pre!iminary decision were limited to
meeting the arguments on the sole basis of the plausibility of the arguments in relation to the problems

inherent to the terms of the provisions, whose violation was claimed by the Applicant. - 2 - ,,,

Separate opinion of Judge Higgins

Various contentions bad been made by the Parties asto how it should be decided whether lran's

claims fall within the compromissory clause955 1reaty of Amity, Economie Relations and
Consular RightsIn ber separate opinion Judge Higgins addresses the methodology to be used in
answering this question.eviews the relevant ctheP~nnanent Court oflnternational Justice

as weil as of the International Court. In certain ofthose cases itlhad been said that what was required was
a "reasonable connection" between the facts all1ged and thereaty said to provide jurisdiction;
a~ td~ aetCourt v:ou.ld reach a prco~clionaatoslieclimed base~fjurisdictiJu~ge
H1ggms finds that th1shne of cases fall mto a partlcular category and that another hne of cases, stemmmg

from the Mavrommatis case, are the more pertinent precedentst case. They require that the
Court fully satisfies itselfthat the facts as alleged by an applicadt could constitute a violation
terms, and that this finding is definitiveia vicÜationcao only be decided on the merits.
Accordingly, it is necessary at the jurisdictional stage to examine certain articles of the 1955 Treaty in

detail. To do this does not intrude upon the merits.

Using this approach, Judge Higgins agreed with the Cottrt that Articles 1and IV (1) provided no
basis for jurisdiHowever,in ber view the correct reason for that conclusion as it applies in Article

IV (1) is because that provision refers to the parttowards the nationals, property and
enterprises the ether party within the fonner's1and because the key tenns in Article IV
(l) were standard terms in law and inapplicable to Iran's claims.i Judge Higgins agrees that the Court has

jurisdiction under Article Xut only insofar as the platforms are shawn to be closely
associated with, or ancillary to, maritime comm1rce.production does not fall within the tenn
"commerce", nor does interference with production fall under ".freedom of commerce". But destruction
of platforms used to pass petroleum into pipelines concems trknsportation, which is comprised within

commerce, and thus may faU within Article X (1).

Separate opinion of Judge Parra-Aranguren

The actions carried out by the United States in this case were directed against the offshore oil
platforms belonging to the National lraniany, not Jgainst Iran, as stated in paragraph 36 of
the Judgmentand the National Iranian Oit Company is a jutidical persan different from Iran, even

though Iran may own ali of its shares. ConseqIratlcororatn, the National Iranian Oit
Company is covered by Article IV, paragraph 1, of the Treaty pf 1955, and shall be accorded "fair and
equitable treatment", and also protected against the application of "unreasonable or discriminatory
measures" that would impair its legally acquired rights and inten!sts. Therefore, in my opinion, the Court
1
has jurisdiction to entertain the claims made by Iran under saidlArticle IV, paragraph 1, on the basis of
Article XXI, paragraph 2, of the Treaty of 1955.

Separate opinion of Judge ad hoc Rigaux

1. Having supported the majority on the two subparagraphs of unreservedly so

where subparagraphs concemed-1expressed my agreement with subparagraph 2, at the same time
regretting the excessively narrow legal basis favoured to foundithe jurisdiction of the Court.

2. I f1emust also distance myselffrom ceofainr~asning relàting to the significance

of Article 1of the Treaty of Amity and respectfully dissociate rhyself from the reasons why Article IV,
paragraph 1, was apparently unable to providetin f ur~diction.

1
3. The objections thus formulated against certain parts of the Judgment could have been avoided
had the Court adopted a different method, which must bein keeping with the precedents.
This method would have entailed limiting oneself strictly tri settling the preliminary objection to
jurisdiction and detennining whether questions ardapplaaioiof he Treaty existed, - 3 •

notably as regards the application, to the facts alleged by the Applicant, of Article I, Article IV,
paragraph 1, and of Article X, paragraph 1,and the characterization, though not the materiality of which,
was disputed by the Respondent.

Dissenting opinion of Vice.Presideot Schwebel

Judge Schwebel dissented from the Court's Judgment on two grounds. In his view, neither the
United States nor Iran, in concluding the Treaty of 1955, intended that daims ofthe character advanced

by Iran in this case would be comprehended by the Treaty or its compromissory clause. Nor do the
particular claims of Iran fall within the terms of any provision of the Treaty including Article X,
paragraph 1.

What cannat be denied is that the attacks by the United States Navy on the three Iranian oil
platforms at issueconstituted a use by the United States of armedforce against what it claims to have seen

as military objectives located within thejurisdiction oflran. Is a dispute over such attacks one that arises
under the Treaty?

Obviously not, as the tltle, preamble and terms of the Treaty indicate. It is a Treaty concemed with
encouraging mutually beneficiai trade and investment and economie relations on the basis of reciprocal

equality of treatment. There is no suggestion of regulating the use of armed force by one Party against
the other.

Not only do the provisions of the Treaty concentrate on the treatment of the nationals of one Party
in the territory of the other. The Treaty contains none of the treaty provisions that typically do bear on
the international use of force. Such provisions are however fully found in the Parties'

Agreement of Cooperation of 1959.

Moreover, Article XX, paragraph 1@,of the Treaty excludes from its reach measures necessary
to protect a Party'sessential security interests. Such an exclusion clause can hardly entitle the Court ta
assume jurisdiction over a claim that engages the essential security interests of the Parties. The Court

holdsthat the United States in oral argument concluded that this clause applied to the merits, a conclusion
which the Court itself reached in 1986 in construing an identical clause in Military and Paramilitacy
Activities in and against Nicaragua; and the Court declares that it sees no reason ta vary the 1986
conclusion. In Judge Schwebel's view, the position of the United States in this case, and the
responsibilities of the Court in this case, are somewhat different. The United States affirmed in these
proceedings that Article XX, paragraph 1 @, manifested the Parties intent to keep such matters outside

the scope of the Treaty; it maintained throughout that it prescribes exceptions to the reach of the Treaty.
The Court in Military and Paramilitru:yActiyjtjes in and against Nicaragua failed in 1984 to address this
question at ali at the stage of jurisdiction when it should have; as a consequence it feil to the merits if
it wasto be addressed at ali. This history leaves the Court free inthis case objectively ta apply the terms
of Article XX, paragraph 1 @, unconstrained by the 1986 holding. Moreover, question bas rightly been

raised about the value as a precedent of the Court'sholdings in that case.

The Court is right in this case ta hold that the Treaty cao be violated by a use of force. An
expropriation could be effected by force or a consul could be forcibly maltreated. But itdoes not follow
that the use by a Party of its armed forces ta attack what it treats as military·objectives within the
jurisdiction of the other Party is within the reach of the Treaty.

Bath Parties fi1ed with their pleadings documents submitted to the US Senate in the course of
ratification of this and like treaties offriendship, commerce and navigation. Among them are documents
that show that intentions in concluding these treaties were to include within the compromissory clause
disputes "limited ta the differences arising immediately from the specifie treaty concemed" and ta exclude

disputes over military security. - 4- ,,

Nor can jurisdiction be based on Article X, paragraph That Article concems
maritime commerce. But even if its first paragraph were to be interpreted ta concern commerce at large,

commerce may not be equated with production.iJnot anciJlary to commerce, it is anterior
ta it. Nor does the Court's re)iance on "freedom" of commercJ strengthen its interpretation. The factor
aJ!egationthat sorne of the ail platforms a:tissue were connected by pipeline to port facilities is insufficient
to carry Iran's case.

Dissenting opinion of Judge Oda

Judge ODA points out that the present case is practica!Jtythe first one in the history of the Court
in which the Applicant attempts to invoke a,dause of a bilateral treaty as a basis of the

Court'sjurisdicHe emphasizes that the meaning~mprom clussisabiatral treaty
should be considered with great care because, even if the parties to a bilateral treaty are ready to defer
ta the jurisdiction of the Court by including a compromissory tlause, neither party may be presumed ta
entrust the eva!uation scope - the abject an-1of the treaty to a third party without its
consent, even where a dispute as to the interpretation or application of the individual provisions of the
1
treaty is specified in the compromissory clause contained therein. The subject of a dispute cannat relate
ta the question of whether essential issues faU,within the comprbhensive scopee- the abject and purpose -
of the treaty but only concem the "intapplitatioctaetrviios "f the agreed text of
the treaty. The range of the "interpretatiooforeaty as covered by the compromissory
clause in a bilateral treaty is strictly lim.ited.

Judgeda contends that, in view of the basic principle of international justice that referral to the
Court should be based upon the consent of sovereign States, neîther one of the parties to a bilateral treaty
should be presumed ta have agreed (and certnevlb~srgreed) to let the other party refer
unilaterally to the Court a dispute touching upon the abject andty, as, without a mutual
understandingthose matters, the treaty itself wouid not have :been concluded. The difference of views

of the two States relating to the scope - the abject and purpose - of a treaty cannat be the subject of an
adjudication byCourt unless bath parties have given their cbnsent; such a dispute may, however, be
broiJghtta the Court by a special agreement or, altematively, thJre may be an occasion for the application
of the rule of forum prorogatum. The problem which faces the Court in the present case is to determine
whether the real dispute between Iran and the United States that has arisen as a result of the latter's attack

on and destructionhe Iranian ail platforms ie~encttatook place during the Iran/Iraq
War, is, as Iran alleges and the Court concludes, a dispute asto; the "interpretation or application" of the
1955 Treaty of Amity within the meaning of its Article XXI(2).1In his view, this îs certaînly not the case.

Judge Oda sees the way in which the Cour~ rlraian Application in this Judgment
as deriving from a misconception. The Court was requested by Iran to adjudge at this stage that it bas
jurisdiction under the Treaty to entertain the dispute occasionedf the platforms by the
Unitedtates forceru»:o entertany~ made b1mb under any specifie article - in this case
Article X(1). 1

He continues ta maintain that failure to dismiss Iran's 1--pplication in the present case invites a
situation in which a State couid, under the pr1text of the violation of any trivial provision of any treaty
containing a compromissory clause, unilaterally bring the other :State Party to the treaty before the Court
on the sole ground that one Parties contends that a disp'ute within the scope of the treaty exists
1
while the other denies it. This would, in his opinion, be no more than the application of a form of false
!agie far removed from the real contexttreaty~onst iotig thrtofan abuse of
treaty interpretation, so that, to quote from his 1986 Separate Op!inionin the case conceming Mj!jtazy and
Parami1itacyActivities in and against Nicaragua (Nicaragua v. Urtjted States of America), "the Court rnight
seemin danger of inviting a case 'through the back door'".