CASE CONCERNING OIL PLATFORMS
ŒSLAMIC REPUBLIC OF IRAN v. UNITED STATES OF AMERICA)
PRELIMINARY OBJECTION
RESPONSE OF THE ISLAMIC REPUBLIC OF IRAN TO
VICE-PRESIDENT SCHWEBEL'S QUESTION
"ln these proceedings, both Parties cite documents from the ratification processes of
treaties offriendship, commerce and navigation to shed light on their intentions in concluding
the 1955 Treaty of Amity, Economie Relations and Consular Rights in the terms in which it
wasconcluded.
In its Judgment of 22 July 1952, on the Preliminary Objection of Iran in the Anglo
Jranian Oil Company case, the Court found what was the intention of Iran in drafting the
terms of its declaration of adherence to the compulsoryjurisdiction of the Court underArticle
36,paragraph 2 (/.C.J. Reports 1952, pp. 104-107).
To what extent,ifany, do the Parties in the case now before the Court find the
holdings of the Court in the jurisdictional phase of the Anglo-Jranian Oil Company case
instructive"
In Iran's view, the Court's holdings in the Anglo-Iranian Oil Company case are
instructive in so far as they differentiate the principles of interpretation that may be involved
in inte:rpreting unilateral declarations acceptingjuri~diurtundei orticle 36(2) of
the Court's Statute from those that are invointe:rp blat~antreaties·forming the.
basis of the Court'sjurisdiction undef Article 36(1) of the Statute.
First, the Court reaffirmed the general principle pursuant to which a reason and
meaning should be attributed to every word in a legal text (effet utile) when interpreting the
text of a treaty. Since the Iranian Declaration was not a treaty and had not resulted from
negotiations between two or moreates, it was not necessary to.apply this principle. It was
more important to ascertain the unilateral intent behind Iran'sDeclaration :
"It may be said that this principle should in general be applied when interpreting the
text of a treaty. But the text of the Iranian Declaration is not a treaty text resulting from
negotiations between two or more States. It is the result of unilateral drafting by the
Government of Iran, which appears to have shown a particular degree of caution when
drafting the text of the Declara.c.JReports 1952, p. 104, emphasis added). 2
1'
Second, the Court even so placed principal reliance on the actual words of Iran's
Declaration in order to ascertain the intention of Iran with respect to the scope of the Court's
jurisdiction.
The Court found that the "manifest intention" of Iran had been to exclude from the
jurisdiction of the Court disputes relating to the application of treaties or conventions accepted
by it before the ratification of its Declaration. According to the Court, this intention "found an
adequate expression in the text of the Declaration so interpreted above by the Court" (ibid.,
p. 106).
Third, to the extent that the Court had recourse to the internai Iranian law by which the
Iranian Majlis had approved the Declaration, this was only to confi.rmthe interpretation which
flowed from the text of the Declaration itself. Given that the interpretation of a unilateral
declaration was at stake, the Court deemed that recourse to Iranian law was entirely
appropriate to shed li~ ohnIran'sintention.
The United Kingdom contended that this kind of evidence should be rejected because
the Iranian law was a "purely domestic instrument, unknown to other govemments" (ibid.).
The Court refused to accept this argument, stating that it was unable to see why it should be
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prevented from considering the Iranian law for purposes of shedding light on Iran's int~ntion
when it signed its Declaration (ibid.).
The situation presented in the Anglo-'lranianOil Company case was thus very different
from that presented in the present case. Here, the interpretation,and application of a bilateral
treaty - the 1955 Treaty of Amity - is at issue rather than ~e interpretation of a unilateral.
declaration under Article 36(2) of tlle Statute. It follows that it is the common intent of the
Parties as expressed in the Treaty which is important rather than the unilateral views that
either Party may have expressed before their own legislative bodies after the Treaty had been
signed.
Shabtai Rosenne, in his work on The Law and Practice of the International Court (2nd
revised edition, 1985)confi.rmsthis important distinction. He notes :
"As applied to the interpretation of declarations accepting the compulsory jurisdiction,
the effect of this is that the Court will seek out the underlying intention of the State
making the declaration, the declaration itself being the expression of a unilateral act of
policy - to recognise as compulsory the jurisdiction of the Court for the disputes
covered by it" (p. 406). 3
In contrast, with respect to treaty interpretation, the author observes that the emphasis
is quite properly placed on the "joint intention" of the parties as expressed in the Treaty :
"That is a normal feature of the process of treaty interpretation, which is always
concerned with the elucidation of the combined intention of two or more Parties to the
treaty. But with a declaration, the whole process is stamped by the particular quality of
the declaration as a unilateral act, the product of unilateral drafting. That also explains
why in severa! cases the Court has been so careful to explore the reasons which led the
declarant government to insert special reservations into its declaration, and to give
effect to them" (ibid.,p.406-407).
It is in the light of this distinction that the references by the Parties in the present case
to documents from the United States' ratification process of FCN treaties must be viewed.
Concerned, as they were, with the ratification of various FCN treaties after they had been
signed, these documents do not constitute travaux preparatoires within the meaning of Article
32 of the ViènnaConvention onthe Law of Treaties.
Bearing in mind that thepresent case involves the interpretation of a bilateral treaty not
a unilateral declaration, the United States cannot rely on documents relating to its own
ratification procedures to support its own interpretation of the Treaty. Unlike in the Anglo
Iranian Oil Company case, it is the common intent of the Parties as expressed in the Treaty
which controls.
In accordance with Article 31(1) of the Vienna Convention on the Law of Treaties,
Iran'sinterpretation of the individual provisions of the 1955 Treaty of Amity at issue in this
case is based on the "ordinarymeaning to be given to the ternis of the treaty in their context
and in the light of its object and purpose." Iran also inv?ked, ex abundanti cautela, the
circumstances in which the Treaty was (oncluded as a supplementary means of interpretation
under Article 32 of the Vienna Convention to confirm the meaning that resulted from the
application of Article 31. To the extent Iran has cited from the United States' ratification
procedures, it has done so simplyto show that the ex post assertions by the United States asto
its understanding of the 1955 Treaty of Amity, or asto what it "really intended", do not stand
with the internai records of the United States itself (see, in general, CR 96117, pp. 53-54,
Professer Crawford). CASE CONCERNING OIL PLATFORMS
ŒSLAMIC REPUBLIC OF IRAN v. UNITED STATES OF AMERICA)
PRELIMINARY OBJECTION
RESPONSE OF THE ISLAMIC REPUBLIC OF IRAN TO
JUDGE AD HOC RIGAUX'S QUESTION
''According to Iran, the NIOC was still delivering oil to the United States at the time of
the destruction of the oil platforms which are the subject of the dispute.
Were these supplies interrupted after President Carter's Executiverder in November
1979 ? Ifso, for how long ? When were they resumed and when did they cease ?"
1. - Restrictions on oil supplies and other commercial relations with Iran were
imposed by the United States pursuant to a series of Proclamations and Executive Orders in
November 1979and Apri11980, in particular:
Proclamation No. 4702 dated 12 November 1979
Executive Order No. 12170 dated 14 November 1979
Executive Order No. 12205 dated 7 April1980
Executive Order No. 12211 dated 17 April 1980
In particular, Proclamation No. 4702 stated in Section 1 (a) that "... no crude oïl
-,
produced in Iran ... or unfinished oil or finished products refined in possessions or free trade·
zones of the United States from sucfl crude oil, may be entered into the customs territory of
the United States".
2. The Algiers Declarations were made on 19 January 1981. Under paragraph 10
of the General Declaration, the United States agreed to "revoke all trade sanctions which were
directed against Iran in the period November 4, 1979, to date" (see, 1 Iran-U.S. Claims
Tribunal Reports, at p. 10).
Pursuant to this undertaking, Executive Order No. 12282 was signed by President
Carter on 19 January 1981 lifting such trade sanctions. The lifting of these sanctions was
confrrmed by President Reagan through Executive Order No. 12294 dated 24 January 1981. .,,
1
2
3. Thereafter, no restrictions on oil trade between Iran and the United States were
imposed by the United States until 29 October 1987, ten days after the first United States'
attacks onIranian oil platforms.
During the intervening period, there was substantial trade in oil between Iran and the
United States. This is confmned by a White House Fact Sheet dated October 26, 1987, wbich
is included in Exhiblt 2 to Iran's Observations and Submissions filed on 1 July 1994, and
which reads in relevant part as follows :
Il
U.S. purchases from Iran in 1986 totalled sorne $ 600 million, $ 500 million in
petroleum and $ 100 million in other products. Oil earnings by Iran from sales
to the U.S. from January through July of 1987 are estimated to be over one
billion dollars.
Imports of Iran crude oil into the U.S. and its territories averaged 90,000 barrels
per day (bpd) in 1986 ; they jumped to an average of 250;000 bpd in the first
seven months of 1987 (620,000 bpd in July alone). Estimates for August are
468,000 bpd and for September 345,000 bpd. The rise can be explained, in
part, by increased Iranian production to obtain additional revenue for the war
effort."
4. On 29 October 1987, President Reagan issued Executive Order No. 12613,
Section 1of wbich reads as follows :
"Except as otherwise provided in regulations issued pursuant to this Order, no goods or
services of Iranian origin may be imported into the United States, including its
territories and possessions, after the effective date of this Order."
However, the Order also stated that this prohibition did not ·apply to "petroleum products
refined from Iranian eructeoil in a third country" (see, Sectiô,n2 (b)). Thus, Iranian eructeoil,
albeit in the form of refined pro9ucts, could still be imported into the United States.
Moreover, the Order did not prevent the sale of Iranian eructeoil to U.S. companies outside of
the United States.
5. Following the 1987 Order, no significant change in the situation occurred. In
1990 and 1991 the State Department allowed certain imports·<;>Ifranian crude oil into the
United States providing payments were made into the Security Account controlled by the Jran.,.
U.S. Claims Tribunal. It should be noted that the sale of Iranian crude oil to U.S. companies
continued until 1995 when the recent Presidential Orders were issued by President Clinton.
6. There was at no time, however, any restriction imposed by the Iranian
Government on the sale of crude oil to U.S. companies.
Written answers of the Islamic Republic of Iran to questions
put by Members of the Court