Non-Corrigé
Uncorrected
CR 96/16
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 1996
Public sitting
held on Monday 23 September 1996, at 10 a.m., at the Peace Palace,
President Bedjaoui presiding
in the case concerning Oil Platror.ms
(Islamic Republic or Iran v. United States or America)
Preliminary Objection
VERBATIM RECORD
ANNEE 1996
Audience publique
tenue le lundi 23 septembre 1996, à 10 heures, au Palais de la Paix,
sous la présidence de M. Bedjaoui, Président
en 1'arraire des Plates-ror.mes pétrolières
(République islamique d'Iran c. Etats-Unis d'Amérique)
Exception préliminaire - 2 -
COMPTERENDU
Present: President Bedjaoui
Vice-President Schwebel
Judges Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Ferrari Bravo
Higgins
Parra-Aranguren
Judge ad hoc Rigaux
Registrar Valencia-Ospina - 3 -
Présents M. Bedjaoui, Président
M. Schwebel, Vice-Président
MM. Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Ferrari Bravo
Mme Higgins,
M. Parra-Aranguren, juges
M. Rigaux, juge ad hoc
M. Valencia-Ospina, Greffier - 4 -
The Governmené of éhe Islamic Republic of Iran is represented by:
Mr. M. H. Zahedin-Labbaf, Agent of the Islamic Republic of Iran to the
Iran-U.S. Claims Tribunal,
as Agent;
Mr. S. M. Zeinoddin, Head of Legal Affairs, National Iranian Oil Company,
Mr. James R. Crawford, Whewell Professor of International Law, University of
Cambridge, Member of the International Law Commission,
Mr. Luigi Condorelli, Professor of International Law, University of Geneva,
Mr. Rodman R. Bundy, Avocat à la Cour de Paris, Member of the New York Bar,
Frere Cholmeley, Paris,
as Counsel and Advocates;
Mr. Derek w. Bowett, C.E.E., Q.C., F.B.A., Whewell Professor of
International Law, Emeritus, University of Cambridge,
Dr. N. Mansourian, Legal Advisor, Bureau of International Legal Services of
the Islamic Republic of Iran,
Dr. M. A. Movahed, Senior Legal Advisor, National Iranian Oil Company,
Dr. H. Omid, Legal Advisor, National Iranian Oil Company,
Dr. A. A. Mahrokhzad, Legal Advisor, National Iranian Oil Company,
Mr. David s. Sellers, Solicitor, Frere Cholmeley, Paris,
Ms Loretta Malintoppi, Avocat à la Cour, Frere Cholmeley, Paris
as Counsel.
The Governmené of the United States of America is represenéed by:
Mr. Michael J. Matheson, Acting Legal Adviser, U.S. Department of State,
as Agent;
Dr. John H. McNeill, Senior Deputy General Counsel, U.S. Department of
Defense,
Professor Andreas F. Lowenfeld, Rubin Professor of International Law, New
York University School of Law, - 5 -
Le Gouvernement de la République islamique d'Iran est représenté par :
M. M. H. Zahedin-Labbaf, agent de la République islamique d'Iran auprès du
Tribunal des réclamations Etats-Unis/Iran,
comme agent;
M. S. M. Zeinoddin, chef du service juridique, National Iranian Oil Company,
M. James R. Crawford, professeur de droit international, titulaire de la
chaire Whewell à l'Université de Cambridge,
M. Luigi Condorelli, professeur de droit international à l'Université de
Genève,
M. Rodman R. Bundy, avocat à la Cour, Paris, membre du barreau de New York,
cabinet Frere Cholmeley, Paris,
comme conseils et avocats;
M. Derek W. Bowett, C.B.E., Q.C., F.B.A., professeur émérite de droit
international, ancien titulaire de la chaire Whewell à l'Université de
Cambridge,
M. N. Mansourian, conseiller juridique, bureau du service juridique
international de la République islamique d'Iran,
M. M. A. Movahed, conseiller juridique principal, National Iranian Oil
Company,
M. H. Omid, conseiller juridique, National Iranian Oil Company,
M. A. A. Mahrokhzad, conseiller juridique, National Iranian Oil Company,
M. David S. Sellers, solicitor, cabinet Frere Cholmeley, Paris,
Mme Loretta Malintoppi, avocat à la Cour, cabinet Frere Cholmeley, Paris,
comme conseils.
Le Gouvernement des Etats-Unis d'Amérique est représenté par :
M. Michael J. Matheson, conseiller juridique en exercice du département
d'Etat des Etats-Unis,
comme agent;
M. John H. McNeill, conseiller juridique principal adjoint du département de
la défense des Etats-Unis,
M. Andreas F. Lowenfeld, professeur de droit international, titulaire de la
chaire Rubin à la faculté de droit de l'Université de New York, - 6 -
Mr. John R. Crook, Assistant Legal Adviser for United Nations Affairs,
u.s. Department of State,
Dr. Sean Murphy, Counselor for Legal Affairs, United States Embassy, The
Hague,
Mr. Jack Chorowsky, Special Assistant to the Legal Adviser, United States
Department of State
Commander Ronald D. Neubauer, JAGC, United States Navy,
as Counsel and Advocates;
Mr. Allen Weiner, Attache (Office of the Legal Counselor), United States
Embassy, The Hague
as Counsel. - 7 -
M. John R. Crook, conseiller juridique adjoint pour les questions concernant
l'Organisation des Nations Unies au département d'Etat des Etats-Unis,
M. Sean Murphy, conseiller pour les affaires juridiques à l'ambassade des
Etats-Unis aux Pays-Bas,
M. Jack Chorowsky, assistant spécial du conseiller juridique du département
d'Etat des Etats-Unis,
Le capitaine de frégate Ronald D. Neubauer, Judge Advocate General's Corps,
de la Marine des Etats-Unis,
comme conseils et avocats;
M. Allen Weiner, bureau du conseiller juridique, attaché à l'ambassade des
Etats-Unis aux Pays-Bas,
comme conseils. - 8 -
The PRESIDENT: Please be seated. This morning the Court will begin
the hearings with the second round of oral arguments on the preliminary
objection of the United States of America in the case concerning Oil
Platfor.ms (Islamic Republic of Iran v. United States of America) and I
now call upon the distinguished Agent of the United States of America
Mr. Michael Matheson, to open the reply for his government.
Mr. MATHESON: Mr. President and Members of the Court. This morning
my colleagues and I will respond to the arguments made by the
Islamic Republic of Iran and will recapitulate the main points of our
case for upholding the preliminary objection of the United States. We
will respond later in writing to the questions asked of us by Members of
the Court last week, although we will also refer this morning to sorne of
those questions in a preliminary way as they are relevant to the various
points in our presentation.
In a few minutes I will outline the arguments which will be made
this morning by members of the United States delegation. Before doing
so, however, I would like to comment briefly on a few general aspects of
the case laid before you by the Islamic Republic of Iran last week.
Although the case was on the whole skilfully presented, there was much in
it that was not responsive to the issues raised by the US preliminary
objection, that was not appropriate for consideration at this preliminary
phase, or that was otherwise not justified.
Facts Pertinent to the US Preliminary Objection
First, the distinguished Agent of the Islamic Republic of Iran took
issue with the US statement that:
"The factual assertions of both Parties confirm that the
actions which form the basis of the complaint of the Islamic
Republic of Iran were combat operations of the military forces
of the United States, and that these operations were part of a
CR 96/l6 - 9 -
series of hostile engagements between US and Iranian forces
that occurred during the course of an international armed
conflict."
Several objections to this statement were made by the distinguished
Iranian Agent: that Iran was acting in self-defense against Iraqi
aggression; that the United States had a duty of neutrality under these
circumstances; that there was no armed conflict between Iran and the
United States; and that the incidents referred to by the United States
were not hostile engagements but unprovoked attacks (CR 96/14, p. 14-15)
With respect, these objections misunderstand or misstate our
position. The pleadings and oral arguments of both Parties show that a
series of inter-connected incidents occurred during this period in which
US or Iranian forces, or both, took hostile action against targets of the
other side. Neither party disputes this, at least with respect to the
incidents involving the Iran Ajr, the various Iranian platforms and the
naval engagements of 18 April 1988. These events occurred in the general
context of an international armed conflict - namely, the Iran-Iraq war -
a fact which neither party disputes. These undisputed facts provide, in
our view, a sufficient factual foundation for the US preliminary
objection.
It does not matter, for purposes of our preliminary objection, how
these incidents of armed conflict are characterized; or whether Iran was
acting in self-defense with respect to Iraq; or whether the United
States had a duty of neutrality; or whether it was the United States or
Iran which initiated these various incidents or which was at fault; or
whether any particular incident involved an exchange of fire or simply an
undefended attack by one side on the other. These would all be issues
for a merits phase if one should occur.
CR 96/16 - 10 -
The point for present purposes is that these incidents, including
the attacks on the Iranian oil platforms, involved combat operations by
the armed forces of one or both of the Parties. The United States
contends that such uses of armed force have no reasonable connection with
the Treaty, and objects to the jurisdiction of the Court in this case on
that basis. There is no need for the Court to resolve any disputed
questions of fact to decide on the US preliminary objection.
I should also add, in response to Judge Higgins' question, that our
jurisdictional case does not rest on our contention that the oil
platforms in question were being used for military purposes at the time
of the attacks. This is a disputed question of fact, the resolution of
which is not necessary to uphold our preliminary objection. If this case
were to go to a merits phase, then the United States would show that
these platforms were used for military operations against neutral
vessels.
Consistency of the US Position on the Treaty
Second, various members of the Iranian delegation have alleged that
the United States has followed a "double standard" in its position over
the years with respect to the application of the 1955 Treaty (e.g.,
CR 96/14, p. 43). It was said that the United States has treated the
1955 Treaty as a "one-way street" by reason of the fact that the
United States and US claimants had invoked the Treaty in prier cases
before this Court and the Iran-United States Claims Tribunal, while
resisting its application to Iranian claims in the present case
(CR 96/14, pp. 12-13).
Mr. President, the record will show that the United States has been
entirely consistent over the years in its position in this regard. We
have consistently stated that the Treaty has been and continues to be in
CR 96/16 - 11 -
force. We have consistently taken the view that the Treaty governs
specifie commercial and consular matters - such as the protection of
consular personnel and other hostages in the case concerning Diplomatie
and Consular Staff in Tehran, and the expropriation of property of US
investors in Iran in cases before the Iran-United States Claims Tribunal.
We have consistently taken the view that the Treaty does not govern the
use of force. Nothing in the 1983 State Department Memorandum cited by
Iran (CR 96/14, p. 43) is in any way inconsistent with this or any other
aspect of our argument.
This is hardly evidence of a "double standard" or a "one-way
street". We have not denied that the Treaty was in force when claims
under it were brought against us, while arguing that it was in force when
bringing our own claims, as the Islamic Republic of Iran has done. We
have not invoked the Treaty when armed force was used against us, while
denying its application when our use of armed force was at issue. Thus
the Islamic Republic of Iran has no basis for arguing that we have
shifted ground or adopted an expedient "double standard".
Discussion of Disputed Facts
Third, various members of the Iranian delegation objected to the
discussion by the US delegation of disputed facts that would have to be
resolved at a merits phase, if such a phase should occur. Counsel for
Iran vowed that the Iranian side would not do likewise, although in fact
they did so extensively.
Little needs be said on this point. The United States described
what we believed to be undisputed facts and responded for the record to
various allegations on disputed facts made by Iran in its last pleading.
Iran devoted a considerable amount of time in its first round of oral
pleading to presenting and embellishing the disputed facts, introducing a
CR 96/16 - 12 -
good deal of new factual material and new arguments, and displaying
various maps, charts and visual aids to illustrate its claims on the
merits.
It is understandable that each side wishes the Court to know its
views on these matters, even though each knows that they are not
technically at issue in this preliminary phase. The important point is
that the Court can decide the US preliminary objection without the need
to resolve any of these disputed factual issues.
Having said that, it is necessary for me to make a few brief points
in rebuttal to the Iranian factual presentation last week. First,
counsel for Iran presented a series of new diagrams which were obviously
designed to illustrate certain Iranian arguments about the merits of the
case. The Court should not assume that these diagrams present an
accurate, balanced or complete representation of the facts they address.
These are matters that we would address in sorne detail in a merits phase
if one should occur.
In particular, the diagrams were used to support the Iranian theory
that the US attacks were deliberately designed to maximize economie
damage to Iran rather than to deal with the Iranian use of the platforms
to facilitate attacks on neutral vessels. Arguments of counsel, of
course, are not evidence, and in this instance are not supported by
evidence. Should the case proceed to the merits, we would show that the
United States knew - from observations by us ships and helicopters as
well as merchant shipping sources - that military equipment and personnel
were positioned on particular platforms, which were involved in
facilitating attacks on neutral vessels. These platforms were selected
for attack because of these characteristics and not because of economie
considerations.
CR 96/16 - 13 -
In fact, even the material cited by counsel for Iran confirmed that
US military plans were specifically directed against Iranian military
assets, including warships and surveillance posts on the platforms,
rather than economie targets as such (CR 96/14, pp. 51-52). Had the
United States intended instead to inflict maximum economie damage - which
it did not - its targets would have been different in character and
scope.
Certain other factual assertions by the Iranian delegation are
implausible on their face. For example, counsel for Iran attempted to
rebut the US assertion that the Sea Isle City had been struck by an
Iranian missile launched from the Faw Peninsula by stressing that the
Faw Peninsula was Iraqi territory (CR 96/14, p. 49). He neglected to
mention that this area was at the time occupied by Iranian forces.
Likewise, counsel for Iran argued that the platforms in question
were much too small and crowded to have been used for military purposes
of the kind alleged by the United States (CR 96/14, pp. 20-21). In fact,
it is obvious that these platforms could easily accommodate (and, as we
would be prepared to show, did accommodate) search radars, communications
gear and other equipment sufficient to enable their use to track and
target neutral vessels. These platform complexes also contained landing
pads for helicopters, which we maintain were used to stage attacks on
neutral vessels. If this case should proceed to the merits, we would
establish these facts.
At one point, counsel for Iran sought to cast doubt on the veracity
of US statements by recalling the Iran Air incident (CR 96/14, p. 48).
It is true that certain statements of US authorities in the immediate
aftermath of the incident contained inaccuracies. These statements were
quickly corrected by the US Government, and US submissions to the Court
CR 96/16 - 14 -
in that case did not repeat these errors. We are likewise confident that
our submissions in the present case, which were the product of years of
investigation, are accurate and complete.
Mr. President, there is no need for me to go on with a detailed
commentary on the rest of the Iranian factual presentation at this time.
If there is a merits phase in this case, we would of course be prepared
to respond in detail to Iranian assertions and to present clear evidence
to confirm our contentions.
The Burdens of a Merits Proceeding
Finally, the Islamic Republic of Iran stated that the United States
had attempted "to threaten the Court with onerous evidentiary proceedings
. with a view to deterring the Court from hearing any evidence at
all" (CR 96/14, p. 15) . On this point, I can only repeat what I said
last week (CR 96/12, p. 20):
"if the proper resolution of this case genuinely required the
Court to engage in such a merits proceeding, even with all the
attendant cost and consequences, the Court should decide to do
so . . . On the ether hand, if these consequences could be
avoided through a proper decision in the current phase on the
issues raised by the United States, this would clearly be the
preferable course."
The Basic Issues
Mr. President, despite the length of the arguments of the two sides
in this preliminary proceeding, the debate seems in the end to turn on a
few basic questions. First, what is the basic scope and character of the
Treaty? Is it the case, as the United States contends, that the Treaty
deals solely with commercial and consular matters or, as Iran argues,
that the Treaty was a bread charter for US-Iranian strategie relations,
including military operations?
CR 96/16 - 15 -
Second, do the specifie provisions of the Treaty regulate combat
operations of armed forces? Is it the case, as Iran argues, that
Article I obligates both parties to refrain from all "unfriendly" acts,
including hostile military operations? Is it the case, as Iran contends,
that Article IV (1) imposes a requirement of "equitable treatment" on the
conduct of such combat operations? Is it the case, as Iran argues, that
Article X (1) applies to any military attacks on property that may have
commercial value, even if the property has no direct relationship to
maritime commerce?
Third, what is the proper standard by which the Court should decide
whether it has jurisdiction over the claims of the Islamic Republic of
Iran? Must the Applicant demonstrate that those claims have a reasonable
relationship to the Treaty, as the United States argues, or sorne lesser
connection, as Iran argues?
This morning we will respond to the Iranian arguments on these basic
questions. Professer Lowenfeld will deal with the first question
concerning the basic scope and purpose of the Treaty. Mr. Crook will
deal with the second question regarding the application of the specifie
provisions of the Treaty to combat operations of military forces and
ether matters relating to the Treaty. I will then deal with the third
question concerning the standard to be applied by the Court. I will
conclude with a final summary of the United States case and will reaffirm
the submission of the United States.
I therefore suggest that the Court now invite Professer Lowenfeld to
address the Court concerning the basic scope and purpose of the Treaty.
Thank you, Sir.
The PRESIDENT: I now give the floor to Professer Lowenfeld.
CR 96/16 - 16 -
Professor LOWENFELD: Mr. President, Members of the Court, may it
please the Court. My task here today is to respond to the professors
appearing on behalf of Iran, my good friends Professor Condorelli and
Professor Crawford, concerning the scope of the Treaty of Amity.
I. The Treaty in Context
Before I proceed to this task, I want briefly to take up the
challenge posed by Mr. Bundy on Thursday morning. Mr. Bundy asked you to
place the Treaty of Amity in the big picture, the geopolitical context,
if you will. In the mid-1950s, the United States and Iran entered into a
series of bilateral agreements, and Iran joined the Baghdad Pact after
signing the Treaty of Amity, but before that Treaty entered into effect.
A consortium had recently been formed among the British Petroleum Company
(formerly Anglo-Iranian} and several US-based oil companies, and the
consortium joined with the National Iranian Oil Company (NIOC} in
developing the oil industry of Iran - off-shore as well as on-shore.
Furthermore, as both Mr. Zahedin and Mr. Bundy emphasized, oil has
strategie as well as economie importance.
No part of this history gives us the slightest difficulty. No part
of this history answers the question whether Iran and the United States
exchanged reciprocal consent to adjudication before this Court - under
general principles of international law - of future disputes about the
use of force.
It is instructive, since we are exploring context, to look at sorne
of the other agreements between Iran and the United States signed in this
period. What emerges is that Iran and the United States addressed their
relationship not in a one-size-fits-all Treaty of Amity, but through a
variety of instruments focused on different sectors and containing a
variety of dispute settlement mechanisms.
CR 96/16 - 17 -
- Perhaps the agreement most pertinent to the present controversy
was an Agreement of Cooperation, signed in Ankara on 5 March 1959
(TIAS 4180; 10 UST 314). Under that Agreement of Cooperation, the
parties addressed their cooperation for security and defence. The
United States undertook (in Article I) to take "such appropriate
action" including the use of armed forces, as may be mutually
agreed upon. Further, the United States undertook (in Article II)
to continue to furnish to the Government of Iran such military and
economie assistance as may be mutually agreed upon, and the
Government of Iran undertook (in Article III) to utilize such
military and economie assistance as may be provided by the United
States - "in a manner consonant with the aims and the purposes of
the [Baghdad Pact] and for the purposes of effectively promoting
the economie development of Iran and of preserving its national
independence and integrity". The Agreement speke of determination
to resist aggression, about collective security, about rights of
the Parties under Article 51 of the United Nations Charter. The
Agreement of Cooperation contained no dispute settlement clause.
It did, however, contain an express disclaimer of linkage with,
for example, the Treaty of Amity. Article V of the Treaty of
Cooperation states, in full: "The provisions of the present
agreement do not affect the cooperation between the two
Governments as envisaged in other international agreements or
arrangements."
- The Agreement of Cooperation built on a Mutual Defence Assistance
Agreement between the two parties signed in Washington as early as
23 May 1950 (81 UNTS 3; TIAS 2071; 1 UST 420). That Agreement,
too, contained no formal dispute settlement clause, but provided
CR 96/16 - 18 -
that the two governments will, upon the request of either of them,
"consult regarding any matter relating to the application of these
understandings or to operations or arrangements carried out
pursuant to these understandings".
Thus the agreements, concluded both before and after conclusion of
the Treaty of Amity, that did deal with military matters - with
"fundamental strategie questions" in Mr. Bundy's phrase. Those
Agreements called for cooperation and called for consultations, but not
for third party dispute settlement. The two governments showed no
disposition to subject matters of this kind to adjudication before this
(or any other) Court. (I might add that after listening to Mr. Bundy the
other day, I went to the Embassy library and got out the pertinent volume
of Foreign Relations of the United States, 1955-1957, Volume XII. Here
it is, it has 1,097 pages, including an elaborate index, it is entitled
"Near East Region; Iran; Iraq". There are almost 300 pages about Iran
full of strategie and geopolitical discussions, meetings, memoranda, all
kinds of notes about discussions, bilateral, multilateral - but not a
word about the Treaty of Amity.)
In addition to these military and strategie agreements, Iran and the
United States concluded a number of other agreements as part of their
increasingly complex relationship. All of these agreements made sorne
kind of provision for settlement of disputes, each different from the
others; none of the agreements provided for reference of disputes to the
World Court.
- For example, Iran and the United States entered into an agreement
on Surplus Agricultural Commodities signed at Tehran on
20 February 1956 (TIAS 3506; 7 UST 329). The agreement contained
a disputes provision - Article V - whereby the two governments
CR 96/16 - 19 -
will, upon the request of either of them, consult regarding any
matter relating to the application of the Agreement.
- The two parties entered into an Air Transport Services Agreement,
signed at Tehran on 16 January 1957 (TIAS 4021; 9 UST 407). That
agreement had quite an elaborate dispute settlement clause,
calling for submission of any dispute that could not be settled by
negotiation for an advisory report to sorne persan or body
designated by mutual agreement, or to a tribunal of three
arbitrators, one to be named by each party and the third to be
agreed by the two arbitrators so chosen. It is interesting to
note that the International Court of Justice does have a role to
play in the dispute settlement agreement under the Air Transport
Services Agreement; but the role is limited to appointment by the
President of the Court of an arbitrator or arbitrators if the
preferred procedure for appointment of arbitrators does not
succeed within specified periods.
- To take another example, Iran and the United States entered into
an Agreement for Cooperation Concerning Civil Uses of Atomic
Energy, signed in Washington on 5 March 1957 (TIAS 4207; 10 UST.
733). This agreement, which included provisions for the
safeguarding of nuclear materials and for the protection of
restricted data, contained no specifie dispute settlement clause,
but anticipated (in its Article X) that this initial agreement for
cooperation would lead to consideration of further cooperation
concerning power producing reactors.
- Finally, in this little catalogue, which may well be incomplete,
Iran and the United States entered into an Investment Guaranty
Agreement, signed at Tehran in September 1957 (TIAS 3913;
CR 96/16 - 20 -
8 UST 1599) . That agreement did have an explicit dispute
settlement provision, applicable to the situation in which the
United States became subrogated to a claim against Iran. That is,
a claim originally would have been brought by an investor, the
investor could have received compensation from the United States
under the investment guaranty and then the United States would
take up the investor's claim vis-a-vis Iran. And if that happened
the parties were first supposed to negotiate, but if within a
reasonable period of time they were unable to settle the dispute,
the dispute was to be referred for final and binding determination
by a sole arbitrator to be selected by mutual agreement. Again,
as in the Air Transport Services Agreement, there was a role for
the International Court of Justice, but again only to the effect
that the President of the Court was to appoint the arbitrator, in
default of agreement on such appointment by the two parties.
In sum, Mr. Bundy was correct in saying that the Treaty of Amity was
part of a larger web of relationships created or recorded between Iran
and the United States in the 1950's. Mr. Bundy and Mr. Condorelli are
quite wrong, however, in painting the Treaty of Amity as sorne kind of
all-purpose or umbrella agreement, and painting the dispute clause in the
Treaty of Amity as overtaking all other dispute, consultation, or future
negotiation clauses in the agreements between Iran and the United States.
Each agreement had its own modality for resolution of possible disputes,
from consultation to arbitration to renegotiation. None of the
agreements other than the Treaty of Amity contained a World Court clause,
and none of the other agreements indicated any understanding or
expectation by the parties that all future disputes would come under the
wings of the Treaty of Amity.
CR 96/16 - 21 -
II. The Subject Matter of the Dispute: The Use of Force
Let me turn next to what Professor Crawford called the dress
rehearsal. I suppose one can fairly paint parts of Commander Neubauer's
presentation and the latter part of Mr. Bundy's presentation as an
indication of the kind of factual and legal issues that would be raised
if the Court were to find that it had jurisdiction. If there is a doubt
in anyone's mind asto the subject matter of the dispute and the nexus,
plausible connection, reasonable connection, or however one chooses to
identify the missing link with the Treaty, a look at the issues raised by
the differences between Mr. Bundy's version and Commander Neubauer's
version has to remove that doubt. Consider where they differed - on fact
and on law. Was Iran engaged in self-defense, was the United States so
engaged, or both or neither? Was the Sea Isle City struck by a missile,
and if so did it originate in Iranian-occupied or Iraqi-occupied
territory? And what was the range of such a missile anyway? Were the
platforms exclusively engaged in pumping oil or were they also being used
for surveillance and for staging attacks on ships in the Gulf? What was
the occupation of the persons stationed on the platforms? Were the
platforms hit in 1988 primary targets or fall-back targets, and what
legally relevant inference could be drawn from the answer to that
question? And so on.
Others have a clearer picture of these facts than I do. My point is
that a judicial investigation by this Court of these mixed factual/legal
questions cannot - I repeat - cannot hang on the slender hook of the
Treaty of Amity. Let me be clear: the United States is not saying that
you cannot sort out this dispute, or that it would be too burdensome to
do so. The United States' position, as I said in my opening statement a
week ago, is that your jurisdiction is based on the consent of the
CR 96/16 - 22 -
parties, and that neither party - neither party - gave its consent to the
submission of the kinds of questions I have mentioned to adjudication -
whether by the International Court of Justice or indeed by any court.
III. The Subject Matter of the Treaty: Commerce and Navigation
Professer Condorelli asked you, essentially, to break up the treaty
into a hundred pieces, like a jig-saw puzzle whose pieces are thrown on
the floor, and then to pick out of these pieces a few that can be fitted
into a very different picture, that would be entitled "Rules pertaining
to the Use of Force, the Rights and Duties of Non-Belligerents, and the
Obligations of 'Sincere Friendship' . " We do not recognize this pi ct ure,
and I am confident that the Court will not recognize it either. We ask
you to put the pieces together in the way they were designed to fit, and
that they do fit.
It is perfectly clear that when one performs that exercise - that
easy exercise - the whole treaty is about trade and investment, about
travel, and about sojourn by nationals of one contracting party in the
territory of the ether (Art. II); about access to courts and to
commercial arbitration (Art. III); about security of transnational
investments (Art. IV); about purchase and sale of real property and
protection of intellectual property (Art. V); about taxes imposed on
nationals and companies of one contracting party by the ether contracting
party (Art. VI); about remittances and exchange restrictions (Art. VII);
about customs duties and ether restrictions on imports (Art. VIII and
Art. IX); about shipping and access to ports (Art. X); about state-owned
enterprises, government procurement and limits on sovereign immunity
(Art. XI); and then, in Articles XII-XIX, a number of provisions relating
to consuls that I need not spell out, including exequatur, privileges and
immunities, furniture and baggage, and accreditation. Article XX - the
CR 96/16 - 23 -
exceptions article - we have already explored, and articles XXII and
XXIII are routine final clauses.
Postponing for the moment Article I, to which I will return, that
leaves Article XXI, the compromissory clause on which Iran bases its
claim to jurisdiction of the Court. If the Court is prepared to accept
the position advanced by both Professer Condorelli and Professer Crawford
that the Parties have a dispute about interpretation of the Treaty, and
that that fact alone gives jurisdiction to the Court, that is the end of
the argument. As I said in my opening statement, I cannot believe that
this Court would lend itself to such a technique of fabricating
jurisdiction. Professer Crawford asked you to rely on paragraph 29 of
the recent Genocide case in support of that position. I am comforted by
the next paragraph, to which my learned colleague did not refer.
Paragraph 30 says:
"To found its jurisdiction, the Court must, however, still
ensure that the dispute in question does indeed fall within the
provisions of Article IX of the Genocide Convention which was
the compromissory clause of that Treaty." (Emphasis added.)
Thereafter, the opinion of the Court examines and analyzes the positions
of the parties in relation to the Court's jurisdiction in detail, just as
we have asked the Court to do in the present case.
Assuming, then, that the Court will go beyond what I have called the
Baron Munchausen technique, and will undertake to "ensure that the
dispute in question does indeed fall within the provisions of the
[compromissory article of the Treaty]", I would ask the Court to look at
the whole picture - that is the pieces properly assembled, to continue my
metaphor of the jig-saw puzzle. When that is done, I submit that there
can be no doubt that the picture shows a commercial treaty. In all of the
articles that I have mentioned, the Treaty contains standards, criteria,
procedures that can be applied or reviewed by a court, and that, as
CR 96/16 - 24 -
Ambassador Bohlen wrote in the memorandum from which I read in my opening
statement, the authorities are to a considerable extent established and
well known.
Counsel for Applicant, in contrast, ask you to fish among the
pieces. They say that Article X is an article about commercial
relations, but they construe the expression "freedom of commerce and
navigation" not in its normal meaning, as spelled out in the following
paragraphs of Article X and in the various MFN and National Treatment
clauses, but in a wholly contrived and artificial meaning, as if it read
"freedom from becoming involved in military or naval engagements".
They fish out of Article IV (1) - also evidently an article about
commercial relations- the words "equitable treatment", and ask you to
hold that it is not equitable that installations of NIOC became the
object of military operations.
And finally, they attempt to build out of Article I a whole universe
of legal obligations. Realizing that there is an enormous gap - indeed a
crater - in the standards to be applied in the jurisdiction they thus
purport to manufacture, they have cited (several times) to Judge
Virally's decision in the Iran-US Claims Tribunal in the case of Amoco
International Finance Corporation v. Iran, 15 Iran-U.S.C.T.R. 189 at 222
(1987). My response to that point is embarrassingly easy.
First, contrary to Professer Condorelli's assertion (CR 96/14 at
74) , the two parties in the Amoco case did not agree that general
international law was incorporated into the Treaty of Amity; they agreed
only that the lawfulness of the expropriation must be decided by
reference to international law (see paragraph 87 of the Tribunal's
decision in that case) .
CR 96/16 - 25 -
Second, the Claims Tribunal does not derive its jurisdiction from
the Treaty of Amity, but from the Algiers Accords, which of course
contain a wide choice of law clause (Article V of the Claims Agreement as
you may remember) not limited to the Treaty of Amity.
And third, Article IV (2} of the Treaty of Amity, to which Judge
Virally was addressing himself, provides (in pertinent part):
"Property of nations and companies of either High Contracting
Party, including interests in property, shall receive the most
constant protection and security within the territories of the
ether High Contracting Party, in no case less than that
required by international law." (Emphasis added.)
Thus Article IV (2), the article being construed by the Claims Tribunal,
invites, or rather mandates, the decision-maker to compare the conduct of
the state whose conduct is being challenged with the requirements of
international law. To make Professor Condorelli's point pertinent here,
the Court would have to add to Article I of the Treaty of Amity the
words: "as required by international law in all its aspects, as they may
exist at the time of the conclusion of this Treaty or as developed
hereafter".
With respect, I do not think that the Treaty of Amity between the
United States and Iran, or between the United States and China, Ethiopia,
and Muscat and Oman, can bear that kind of rewriting.
* * *
Before closing, I might add just a few words on the Nicaragua case,
on which Iran pins so much of its hopes. Nothing in that case, as we see
it, runs contrary to anything that I have said. As I pointed out last
Monday, the issues concerning the jurisdiction under the FCN treaty
received little attention, either by the Parties or by the Court, for
reasons we have explained. Mr. Crook will review the specifie points
made in the Nicaragua case as they bear on the present dispute. I want
CR 96/16 - 26 -
to stress only that the decision in the Nicaragua case in no way supports
the proposition advanced here on behalf of Iran that jurisdiction based
solely on an FCN treaty can support a claim under customary rules of law
concerning the use of force.
In short, we agree with Professer Crawford when he says Article XXI
(2) is as bread as the Treaty itself. We disagree - and we are confident
that the Court will disagree as well - with the further statement that
the Treaty is as bread as anyone's conceivable construction of sincerity
or friendship.
Thank yeu, Mr. President, that concludes my presentation. I suggest
you may want to call new on Mr. Crook to continue the presentation on
behalf of the United States.
The PRESIDENT: Thank you very much, Professer Lowenfeld. New I
give the floor to Mr. Crook.
Mr. CROOK: Mr. President, Members of the Court, in this short
presentation, I shall address several significant questions raised in the
oral proceedings regarding the 1955 Treaty. These arguments will
underscore our point that there is no reasonable connection between the
claims of the Islamic Republic of Iran and the specifie rules of the
Treaty that have been cited.
A. Circumstances of the Conclusion of the Treaty
First, a brief point regarding the circumstances of the conclusion
of the Treaty. Professer Lowenfeld has just dealt with arguments
suggested by counsel for the Islamic Republic of Iran regarding the
supposed circumstances of the conclusion of the Treaty. I will not
duplicate his presentation, but will add just one point. I showed in my
initial presentation to the Court last week how the 1955 Treaty was the
CR 96/16 - 27 -
lineal descendant of a long span of commercial and consular treaties
between the Parties going back at least as far as 1856. Iran has thus
far not responded in any way. The 1955 Treaty was not a novelty in the
Parties relations, but was part of a long chain of similar agreements
between the Parties. Nothing about the circumstances of the conclusion
of this Treaty justifies interpreting its text in any broad, artificial
or exceptional way.
B. The Preamble and Title of the Treaty
Arguments have also been advanced regarding the Treaty's Preamble
and its title. As ta the Preamble, there is really not much more that I
can say. I would simply invite the Court to read the brief text in light
of your experience and knowledge of international law. Then please
consider whether, in your view, the few commonplace words used by the
parties indicate that this Treaty is ta be construed ta bring the most
fundamental issues of war and peace before you through the avenue of a
commercial and consular treaty. I submit that they are not.
It has also been suggested that the Court should assign sorne
particular importance ta the presence of the ward "amity" in the title of
the Treaty. (In English, the Treaty is entitled "Treaty of Amity,
economie relations and consular rights.") We do not agree with this
suggestion.
It is common for treaties of this kind ta include either the ward
"friendship" or the ward "amity" in their titles. This will be clear
from a review of the titles of such treaties contained in the list I
cited at 20, International Legal Materials 565. Whichever ward is chosen
("friendship" or "amity"), the essential meaning is the same. And in
neither case, does the wording of the title does alter the substantive
provisions of the Treaty. As this Court indicated in its judgment in the
CR 96/16 - 28 -
case of the Diplomatie and Consular Staff in Tehran, to which I referred
again without response by counsel for Iran, the meaning of this Treaty
is to be found in its specifie substantive articles (I.C.J. Reports 1980,
p. 28, para 34).
The fact that its title may contain the word "amity" is not a reason
to construe its provisions in the bread and artificial ways urged upon
you here by the distinguished counsel for the Islamic Republic of Iran.
c. The Significance of Article I
Let me turn now to a few points regarding Article I. I do not need
to remind the Court of the language of Article I, or to review all of the
arguments you have heard from counsel for the Islamic Republic of Iran as
they have tried to stretch these few words. I will confine myself to a
few brief points.
1. Article I is a statement of aspiration and description, not a
judicially enforceable rule
I pointed out that Article I can most reasonably be read as a
statement of aspiration. This is a description of conditions that the
Parties desired to secure through various means, including the 1955
Treaty. The alternative reading - that the maintenance of peace and
friendship between the United States and Iran becomes a matter for this
Court - is highly implausible. As I noted, certainly nothing in the
practice of the Parties, at least before Iran decided to bring this case,
suggested that the Parties viewed Article I as a rule of bread legal
obligation. Counsel for the Islamic Republic of Iran have dealt with
this point regarding the Parties' practice by ignoring it. They cannet
ignore it, for it is a crucial guide to the correct interpretation of
this Article.
CR 96/16 - 29 -
Counsel for the Islamic Republic of Iran have tried to make much of
the word "shall" in the expression "there shall be" peace and friendship
between the parties. However, as you know, the word "shall" in English
can have separate meanings. It can be a word of obligation, as counsel
for Iran contend. However, the words "shall be" are also a future form
of the verb "to be". That is also the sense of the French text of this
agreement included in the UN Treaty Series and reproduced in Iran's
application. Article I there says "Il y aura." There will be.
If the article were intended to convey the meaning of obligation
urged by Professer Condorelli, it would have to be phrased quite
differently. It would read: "that each party shall refrain from acts
that disrupt" peace and friendship. But that is not what Article I says.
2. The principle of effectiveness requires no ether result
Mr. President, Members of the Court, Professer Condorelli made much
of the rule of interpretation regarding effectiveness, urging the Court
adopt Iran's sweeping interpretation of Article I in order to avoid
rendering that Article meaningless.
With all respect, I think that counsel for the Islamic Republic of
Iran have not accurately characterized the situation. Our interpretation
of Article I is not in any way inconsistent with the principle of
effectiveness. We do not suggest that the Court disregard Article I. It
may be a useful statement of the Parties' aspirations. It sets a
framework for all that follows. It may in particular circumstances shed
light on the construction of other articles. We do not ask the Court to
ignore Article I.
What we do ask is that the Court not follow a maxim of
interpretation to a result that is manifestly unreasonable or is at
variance with the intentions of the parties. Nothing in the case of
CR 96/16 - 30 -
Territorial Dispute (Libyan Arab Jamahiriya/Chad) or other decisions of
this Court supports the contrary conclusion. In this respect, we find
instruction in the Court's Judgment in the Anglo-Iranian Oil case, which
was the subject of Judge Schwebel's question to the Parties on another
matter. The Court there was urged by one party to give a particular
effect to a provision of an instrument on the basis of the principle of
effectiveness urged here by Professer Condorelli. This Court did not
agree, concluding that the principle of effectiveness cannat supplant
clear intention (I.C.J. Reports 1952, pp. 105-106).
The same principle should control here. The principle of
effectiveness is one of many possible guides to interpretation. It
should be viewed with particular caution and restraint in a
jurisdictional context. But even if it were relevant here - and we do
not agree that it is, for we do not ask the Court to ignore Article I -
it cannat be used to produce, in the guise of interpretation, results
that are manifestly at variance with the known intentions of the parties.
The principle of effectiveness is not license to import into Article I
all of the law of war and peace.
A variety of other arguments regarding the character of Article I
have been advanced, but I do not believe that in the context of this
rebuttal I can do more than urge the Court to weigh carefully what I have
just said. Article I is a description, not a legal obligation, as the
United Nation's French translation makes clear. The practice of the
Parties shows that they have not previously construed this sweeping
provision in the way now being urged. And the principle of effectiveness
neither applies nor requires this Court, in the guise of treaty
interpretation, to read new and wholly unintended meanings into treaties.
CR 96/16 - 31 -
D. Article IV (1) and X (1) of the Treaty do not Regulate
the Use of Armed Force
Let me know turn to a few arguments regarding Articles IV (1) and X
(1) of the Treaty. Sorne of the arguments regarding these articles have
been squarely joined as a result of the arguments of counsel. So there
is not much I can do that might assist the Court. In other cases, the
arguments adduced do not seem to require significant discussion. Thus,
for example, Mr.Bundy's suggestion that Article IV (1) 's requirement of
"equitable treatment" dictates that because Iran was found liable in
claims in the Iran-United States Claims Tribunal on the basis of this
Treaty, the United States should be found liable here (CR 96/14 at 42),
is not a position that requires substantial discussion.
However, on a few points, more can perhaps be said.
First, I ask the Court to recall the important point concerning bath
of these Articles that elicited little or no response from counsel for
Iran. I pointed out to the Court that neither of these Articles could
intelligibly be applied in circumstances otherwise regulated by the law
of armed conflict. If a use of force is lawful, it makes no sense to
require that it also be "reasonable" or "non-discriminatory" in the sense
of Article IV. Moreover, the lawful use of force cannat be reconciled
with unimpeded maritime commerce - or even with the freedom of commerce
generally, if you accept the much broader reading of Article X (1)
offered by Iran. These Articles simply cannat be applied ta regulate the
lawful use of force.
E. The Maritime Focus of Article X (1) and
Iran's Problem of "Commerce"
In their arguments regarding the specifie articles of the 1955
Treaty, the distinguished counsel for the Islamic Republic of Iran
devoted much time to discussing the case for applying Article X (1) to
CR 96/16 - 32 -
the circumstances of Iran's claim. For our part, we are convinced that
there is no reasonable connection between this Article and the matters
raised by Iran. Let me review our reasoning.
First, the character of Article X (1), and of any obligations
thereunder, relate to maritime or seaborne commerce between the parties,
not to commerce generally. The military actions of the United States
complained of by Iran did not interfere with maritime commerce between
the territories of the two countries. They have no reasonable connection
to Article X (1) .
Now, the Court will recall that we showed how Article X(1)
introduces a series of paragraphs, each dealing exclusively with maritime
matters. We also referred to three of the leading writers on these
treaties. Each underscored the maritime scope and character of Article X.
Counsel for the Islamic Republic of Iran responded only by ignoring these
arguments and authorities.
What was Iran's position regarding Article X (1)?
Professer Condorelli essentially denied that Article X (1) had any
particular relevance to maritime commerce or was limited to maritime
trade. He said that Iran did not accuse the United States of "hindering
the freedom of maritime commerce". He said, in our unofficial
translation, that:
"Iran's claims do not bear directly on freedom of
commercial navigation; however, this has no relevance because
Article X covers commerce in general, not simply maritime
commerce." (CR 96/15, p. 34, in the French original.)
Thus, counsel for Iran do not regard Article X (1) as having
particular pertinence to maritime commerce, and claim instead that this
provision extends to all forms of commerce. Now, to arrive at this
result, Iran must ignore authoritative writers who emphasize the maritime
character of the Article. They also must disregard its role in
CR 96/16 - 33 -
introducing a series of detailed provisions that deal with maritime
affairs.
But, having agreed with us that their claims do not involve maritime
commerce, counsel for the Islamic Republic of Iran face a difficulty.
They must somehow relate their claims for damage to "commerce between the
parties", the concept in Article X (l). Iran must meet this burden,
though, for it must acknowledge - as it did - that these platforms are
not part of maritime commerce. They were constructed as static
production facilities, permanently affixed to the continental shelf.
They are not vessels. Their operations are not part of maritime
commerce, as that concept is understood in the ordinary course. The fact
that the oil they produced was carried by a pipeline network that may
have been connected to facilities at ports does not make these platforms
part of maritime commerce, any more than transportation of apples by
truck to a port makes the apple orchard part of maritime commerce.
In the face of these difficulties, counsel for Iran devised the
following argument. These platforms are associated with the production
of ail. Oil is a commodity that can enter commerce. Indeed, sorne of it
might come to the United States through commercial sales. Therefore, the
platforms are part of commerce. Therefore, damaging their existing or
future production potential damages commerce that may potentially move
between the United States and Iran.
Now, there are serious difficulties with this argument. First, it
necessarily rests on a good deal of hypothesis and speculation. Second,
there is no indication anywhere in the language or history of the text,
or in the practice of the Parties, to support the assertion that
Article X's short reference to "freedom of commerce" "between the
parties" extends thus far. Third, and this is perhaps the greatest
CR 96/16 - 34 -
defect of this theory, it is potentially unlimited. Under Iran's
analysis, the maritime article of the 1955 Treaty would reach to include
the production of goods or commodities any place in Iran, even if they
might be consumed domestically or exported to countries ether than the
United States. This analysis could embrace virtually all economie
activity that might take place in the Islamic Republic of Iran, and make
it part of "commerce between the territories" of the United States and
Iran. An argument that reaches so far must be rejected.
F. The Nicaragua case and the 1955 Treaty
Let me turn briefly to the Nicaragua case and the 1955 Treaty. I
will not presume here to try to distil the debate that you have heard
regarding the relevance or not of the Court's decisions in Nicaragua v.
United States. I shall instead confine myself to three simple points.
First, the Court in that case did not adopt the argument now being
advanced by the Islamic Republic of Iran regarding the supposed
application of Article I. This is because, as beth Parties here agree,
the US-Nicaragua Treaty did not have an article comparable to Article I
of this Treaty. The Nicaragua case does not support Iran's Article I
claim.
Second, the Court in that case did not adopt the argument now being
advanced by the Islamic Republic of Iran regarding the supposed
application of Article IV (1) . As to this claim too, the Nicaragua case
does not support Iran's claim.
The matter is somewhat more complexas to Iran's third claim, under
the shipping article, Article X (1). The Court in the Nicaragua case did
not discuss in detail the relationship between the counterpart to
Article X and the attacks on the oil platforms and storage facilities for
which it found the United States to be responsible under that Treaty.
CR 96/16 - 35 -
Yet, we believe that the Court's objective and fair inspection of the
Nicaragua decision will show that the Court did not find these attacks to
violate the Treaty merely because they affected a commodity potentially
involved in commerce, as Iran claims here.
Rather, the Court's only discussion of Article X stressed the
disruption of maritime commerce resulting from US actions. And, it must
be emphasized, Iran has made clear, and it is pleading here, that it does
not view its claims under Article X as being related to maritime trade.
Thus, we do not believe that the Nicaragua case supports Iran's final
claim under Article X (1) .
G. Article XX (1) (d)
Mr. President, I will close with a brief discussion of Professer
Crawford's dramatic response to our suggestion that the Court need not
now address Article XX (1) (d). We had hoped to simplify the situation
for the Parties and the Court, but we clearly did not succeed in our
modest effort.
We said that we thought that consideration of the interpretation and
application of Article XX (1) (d) was a merits issue. Professer
Crawford, though, tried to make this out as sorne sort of dramatic
concession by the United States. His argument, creative even, to us at
least, if not very persuasive, goes as follows:
"The United States accepts that whether a government
measure is •necessary to protect its essential security
interests' is an issue for the merits. In this case, the
application of Article XX, paragraph 1 at the merits phase
would implicate the law of armed conflict. Therefore, the
United States concedes that the 1955 Treaty regulates the use
of force and the exercise of self-defense."
That is the argument. The United States, however, has conceded no
such thing. And counsel's conclusions cannat fairly be drawn from our
statements. The position of the United States is that the 1955 Treaty
CR 96/16 - 36 -
does not regulate the conduct of military hostilities, and therefore,
that such conduct should never - never - be the subject of any merits
proceedings in this Court under the Treaty. Article XX (1) (d) is not
inconsistent with this position. It addresses a wide range of possible
actions not necessarily involving the use of force, such as trade
restrictions taken for reasons of national security.
If the Court should rule that it does have jurisdiction to
adjudicate Iran's claims regarding the military events at issue - then,
of course, the United States would demonstrate that its actions did not
violate the Treaty. In this regard, the United States would invoke
Article XX, paragraph 1, and show that the Treaty does not preclude the
Parties from taking actions consistent with the law governing the use of
force and the exercise of self-defense.
Thus, the United States certainly does not concede that the 1955
Treaty regulates the conduct of armed conflict. However, should the
Court rule otherwise, there will be a need for the Parties and the Court
,to examine with care the exceptions to the reach of the Treaty that are
expressly written into Article XX (1) (d).
Mr. President, Members of the Court. This concludes my statement in
rebuttal. I hope these points will be of sorne assistance to the Court in
its difficult task. It has been an honour for me to appear before yeu.
I thank the Court, and invite yeu to call upon the Agent of the
United States, Mr. Matheson, to complete our rebuttal.
The PRESIDENT: Thank yeu very much, Mr. Cook, and I new call upon
the distinguished Agent of the United States of America, Mr. Matheson, to
make his statement and also to give to the Court the final submissions of
his Government.
CR 96/16 - 37 -
Mr. MATHESON: Mr. President and Members of the Court, I will now
address the third of the basic issues in dispute - namely, the standard
that should be applied by the Court in deciding the jurisdictional issue.
The Standard for Jurisdiction
In judgments concerning jurisdiction, the Court has used a variety
of formulations to characterize the burden that applicants must satisfy
to demonstrate a dispute that cornes within the Court's jurisdiction. The
United States maintains that an applicant must show a reasonable
connection between its claims and the treaty in question. Whatever the
particular words invoked, what is clear is that a party which invokes the
jurisdiction of the Court must demonstrate that its claims are
sufficiently connected to a treaty that contains standards which the
Court can properly apply to adjudicate those claims.
Counsel for Iran have suggested various formulations for this
jurisdictional standard. They have referred at various points to the
burden of demonstrating genuine questions (CR 96/14, p. 27), fundamental
questions (CR 96/14, p. 26), and genuine connections (CR 96/15, p. 11)
between an applicant's claims and the treaty in question. Professer
Crawford suggested that the Applicant must present a "bona fide question"
regarding the interpretation or application of a treaty (CR 96/15,
p. 48). Professer Condorelli appeared to take a different view,
asserting that it was sufficient that the Parties disagreed over the
meaning of particular treaty provisions (CR 96/15, pp. 15, 27, 33).
It is our view that the Court's recent decision in the Genocide case
supports the position of the United States, notwithstanding Iran's
attempts to characterize that case differently. Counsel for Iran have
suggested that the Court in the Genocide case considered the existence of
a mere disagreement between the parties regarding the interpretation or
CR 96/16 - 38 -
application of the Genocide Convention to be sufficient to give rise to a
dispute within the Court's jurisdiction (CR 96/15, p. 50).
But this reference to the Genocide case was selective and
incomplete. While the Court noted the existence of a dispute - in the
literal sense that the two parties disagreed - it indicated this was not
sufficient to give rise to jurisdiction. The Court explained that it
"must, however, still ensure that the dispute in question does indeed
fall within the provisions of Article I of the Genocide Convention"
(Judgment of 11 July 1996, para. 30) .
This passage refutes the notion that a mere disagreement between the
parties gives rise to a dispute conferring jurisdiction. It confirms
that the Court will not accept jurisdiction unless it is convinced that
the dispute in question does in fact fall within the treaty.
In the Genocide case, the Respondent argued that the treaty in
question (in this case, the Genocide Convention) did not apply to the
type of conduct presented by the claim - in particular, acts allegedly
occurring during internal armed conflict in territory not controlled by
the Respondent. To resolve this issue, the Court had to decide between
the opposing positions of the parties on the interpretation of specifie
provisions of the treaty. In doing so, the Court did not defer this
issue to the merits simply because the parties had advanced possible or
plausible or bona fide interpretations of the treaty. Rather, the Court
went straight to the substance of the interpretive question and resolved
it. This was a sensible and direct way of proceeding, which simplified
the case by dealing at the outset with an issue that could otherwise have
consumed additional time and effort later.
This is precisely what we ask the Court to do in the present case.
The United States contends that the 1955 Treaty does not apply to the
CR 96/16 - 39 -
type of conduct presented by the Iranian claim - in particular, combat
operations by military forces in the context described in the pleadings.
To resolve this issue, the Court would decide between the opposing
positions of the Parties on the interpretation of the treaty. Such a
decision would be a sensible and direct way of proceeding, which would
simplify the case by dealing at the outset with a straightforward legal
issue requiring no resolution of disputed facts.
Counsel for Iran further attempted to dissuade the Court from
applying the standard advocated by the United States by arguing that
"such a test inevitably forces the Applicant State to proceed too far
into the merits" (CR 96/15, p. 47). He claimed that a reasonable
connection of the Treaty could only be demonstrated by establishing facts
relevant to the resolution of the merits.
This argument is not persuasive, certainly not in the circumstances
of the present case. It is the position of the United States that the
1955 Treaty does not regulate the conduct of military hostilities and was
never intended to do so. As we have shown, this contention does not
require the resolution of disputed facts and does not prejudge the
various substantive issues that would be at the heart of the merits phase
- whether Iran was responsible for the mines and missiles that damaged
American vessels, whether the platforms were being used for military
purposes, whether the US attacks were in legitimate self-defense, and so
on.
Thus, the objection now before the Court is demonstrably of an
exclusively preliminary character. Its resolution would be entirely
consistent with the text and purposes of Article 79 as we have attempted
to explain them, a conclusion which Iran has not effectively refuted.
CR 96/16 - 40 -
Conclusion
Mr. President and Members of the Court, you have now heard our
responses to the arguments of the Islamic Republic of Iran. There is a
basic question which underlies all of this debate, and upon which the
disposition of our preliminary objection should turn.
The Court exists to provide a judicial forum through which States
may secure a peaceful resolution of disputes between them. Its
jurisdiction is founded upon the consent of States to submit such
disputes, or categories of disputes, as they wish, to have decided by the
Court. Therefore, the essential question in every jurisdictional
proceeding should be: is this a dispute of the type that the Parties
intended to be decided by this Court when they consented to the Court's
jurisdiction? This is the question toward which every jurisdictional
principle and every rule of treaty construction must be subordinate.
This, for example, is the lesson of the 1952 Anglo-Iranian Oil Co.
case. In that case, the Court decided that a party's declaration
accepting the Court's jurisdiction over certain disputes should be
limited in a certain way, even though the text was subject to a different
interpretation under the principle of effectiveness. For the Court, the
main consideration was to determine whether that party actually intended
to give the Court jurisdiction to rule on the type of dispute in
question, which the Court decided was not the case.
In the present case, the basic question is whether a dispute
concerning combat operations by military forces is one which Iran and the
United States intended to be decided by the Court when they concluded the
1955 Treaty. As you know, we believe this question must be answered in
the negative.
We have shawn that the 1955 Treaty was not the vehicle by which Iran
CR 96/16 - 4l -
and the United States attempted to build a strategie alliance, or to deal
with national defence or the use of armed force. Other agreements were
entered into for these purposes during this period, and none of these
contained a compromissory clause referring disputes to the Court. The
conclusion is inescapable that the parties did not intend that the Court
be charged with this responsibility.
This is confirmed by the entire substance and character of the
Treaty itself. As we have shawn, the Treaty is about commercial and
consular matters, and was only the latest in a long series of such
treaties concluded by bath the United States and Iran for these purposes
with a variety of countries. It contains no standards by which the use
of armed force could be judged. The parties gave no indication - to the
Senate, the Majlis, or anyone else - that it was to govern the use of
armed force.
If that were really the parties' intent, then surely would not have
manifested it simply by shifting the placement in the Treaty of a vague
aspirational statement about peace and friendship. That is not the way
that governments deal with the very serious matter of armed conflict.
Nor is it plausible to assume, as Iran argues, that this vague
language was supposed to confer on the Court jurisdiction to hear such
disputes arising under the entire body of international law concerning
the use of armed force, which of course was already in force with respect
to bath countries. Why would governments choose a commercial and
consular treaty for such a purpose, rather than one or more of the other
defence agreements which they had negotiated during this period? Why
would the parties not do so expressly, rather than by inference from
vague aspirational language?
CR 96/l6 - 42 -
Under these circumstances, it defies common sense to conclude that
the two governments actually intended to regulate the use of armed force
and to give jurisdiction to the Court over such use in a treaty of this
sort and in such a casual manner. This is the fundamental point which the
Court must deal with, and which no amount of legal maxims or
sophisticated advocacy can obscure.
We ask the Court to carry out the true intentions of the parties in
this case. We ask the Court to reject the submission of the Applicant
and the improbable interpretations of the Treaty that have been offered
in its support. We ask the Court to uphold the preliminary objection of
the United States. Accordingly, we maintain the submission contained on
page 54 of the US Preliminary Objection as our Final Submission.
Mr. President, this concludes the argument of the United States. We
will provide written answers to all the questions asked of us by Members
of the Court within the time-limit prescribed. As always, we thank the
Court for its consideration of our presentations and for the honour of
appearing before it. Thank you, Sir.
The PRESIDENT: Thank you very much Mr. Matheson. That concludes the
oral argument on behalf of the United States of America. The Court will
now adjourn and the hearing will resume tomorrow morning at lO o'clock
for the reply of the Islamic Republic of Iran.
The Court rose at 11.30 a.m.
CR 96/16
Public sitting held on Monday 23 September 1996, at 10.00 a.m., at the Peace Palace, President Bedjaoui presiding