ORAL ARGUMENTS ON THE REQUEST
FOR THE INDICATION OF PROVISIONAL
MEASURES
MINUTES OF THEPUBLICSITTTNGS
hetatthe Peace Palace, TheHague,
on IODecemberand15Decernber1979,
PresidSiHumphrey Wuldockpresiding
PLAIDOIRIES RELATIVES
À LA DEMANDE EN INDICATION
DE MESURES CONSERVATOIRES
PROCÈS-VERBAUX DESAUDIENCES PUBLIQUES
tenuesaupadelaPaix, a La Haye,
l10décembreet le 15 décembre1979.
sous la préde sir Humphrey Waldack,Président FIRSTPUBLICSITTING(10 XII 79, p.m.)
Present: President Sir iiumphrey WALk;ïce-President ELIAS;Judges
FORSTE GR,OS,LACHSM, OROZONVA, GENDKSNGHR , UDA, OSLE RAKAZI,
ODA,AGCI,EL-ERIANSE,TTE-CAMAB RAX, TR;egistrAQUARONB.
Also present:
Forthe Governmentof the UnifedStates of Arnerica:
The Honorable Roberts B. Owen,LeAdviserDepartmentof State, as
Agent;
The HonorableBenjamR. Civiletti,Attorney-Generalof the UnitedStates,
Mr.StephenM. Schwebel,Deputy LegalAdviser, Departmentof State, as
Counset
Mr. DavidH.Smalf,Assistant LegalAdviserfor Near Easternand South
Asian Affairs,DepartmofState,
Mr. JackGoldklang,Officeof the LegalCounsel,Departmentof Justice,
Mr. Robert Smith, Depürtmenotf Justice,as Advisers. OPENINGOF THEORAL PROCEEDlNGS
The PRESIDENT: The Court meets to consider the request Forthe indication
of provisional measures, under Article 41 of the Statute of the Court, and
Articles73and 74of the Rules of Court, made by the Government of the United
States of America, in the case concerning UnitedStatw Dipbmatic ond Consu/ar
Sroff inTehranbrought by the United States of America against Iran.
The case was brought before the Court by an Application (see pp. 3-8,supra)
filedin the Registry of the Courton 29 November 1979.In that Application the
United StatesGovernment claims to found the junsdiction of the Court on the
Vienna Convention on Diplomatic Relations of 1961 and Article 1 of the
Optional Protocolthereto concerning thecompulsory settlement of disputes; the
Vienna Convention on Consular Relations of 1963and Article 1of the Optional
Protocol thereto concerning the cornpulsory settlement of disputes; Article XXI,
paragraph 2, of a Treaty of Amity, Economic Relations, and Consular Rights of
1955bctween the United Statesof Amcrica and Iran;and Article 13,paragraph
1, of the Convention of 1973 on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agents. The
United States then atlegesa sequence of events beginning on 4 November 1979
in and around the United States Embassy in Tehran, involving invasion of the
Embassypremises and the seizureand detention of United Statesdiplornatic and
consular staff. On the basis ofthese allegations, it formulates a number of legal
in tolerating, encouraging and failing to prevent and punish the conductIran,
United States under the provisions ofd iasnumber of international treaties andthe
imrnediately to secure the release of all United States nationals currently being
detained and to assure that they are allowed to leave Iran safely; that the
Government of lran should pay reparation for the atleged violations of Iran's
international legal obligations; and that the Government ofIran should submit
to its compctent authorities for the purpose of prosecution the persons
responsible for the crimescommitted against the premises and staffof the United
States Ernbassy and Consulates.
On 29 November 1979,the day on which the Application itself was filed, the
United States of America submitted the present request for the indication of
provisional measures (seepp. 11-12,supra).Inow ask theRegistrar to read from
that request the statement of the measures which the United States asks the
Court to indicate.
The REGISTRAR: The Government of the United States of America
requests that pending finaljudgment in this suit the Court indicate forthwith the
following:
"(a) That the Government of lran immediately release al1 hostages of
United States nationality and facilitatethe prompt and safedeparture
from Iran of these persons and al1 other United States officiais in
dignified and humane circumstances. .
(bj That the Government of Iran immediately ctear the premises of the
United States Embassy, Chancery and Consulate of al1perçons whose
presence is not authorized by the United States Chargéd'Affaires in
Iran, and restore the premises to United States control. OPENING OF THE ORAL PROCEEDINGS 17
(c) That the Government of lran ensure that al1persons attached to the
United States Embassy and Consulate should be accorded, and
protected in, fullfreedom withinthe Embassyand Chancerypremises,
and the freedornof movement withinlran necessaryto carry out their
diplornatic andconsular functions.
{d) That theGovernment of Iran nat placean trialany person attached to
the Embassyand Consulate of the United States and refrain from any
action to impiement any such trial.
(e) 'Thatthe Government of lran ensure that no action is taken which
might prejudicc the rights of the United States in respect of the
carrying out of any decision which the Court may render on the
rnerits, and in particular neither take nor permit action thwould
threaten the lives,safety, or well-beingof the hostages."
The PRESIDENT: The Government of Iran was infomed forthwith by
telegramof the filingof the Application and of the submission ofthe requestfor
provisional measures,and the text of the latter document was set out in full in
the tefegram (sec pp. 493-494, infra). A copy of the Application and of the
request was sent to the Government of lran by express airmail the same day.
On 30Novernber 1979,pending the meetingof the Court and in exerciseof the
power conferred on the President by Article 74, paragraph 4, of the Rules of
Court, 1 addressed a telegram (see pp. 495-496, infra)to each of the two
Governments concerned stressingthat the case was now ntb judice before this
Court and callinglheirattention to the needto actin sucawayas wouldenable
any Order the Court may rnake in the present proceedings to have its
appropriate effects.By thosc telegramsthetwo Governments were, in addition,
informed that the Court would hold public hearings al an early date at which
they might present their observations an the request for provisional rneasures;
and thac the projectcd date for such hearings wastoday'sdate, this date being
later confinned by further telegramsof 3 December 1979 (seep. 496, infra).
In preparation for thepresent hearings,as Presidentof the Cour1,put certain
preliminary questions to the Agent of the United States Covernment on 4
December 1979.The text of the questions was communicated on the samcdate
bytelegramto the Govcrnmcnt of Iran (seep. 496, infra). Accordingly1now ask
the Registrar to read out this text.
The REGlSTRAR:
"1. The President asks the Agcnt of the United States of America to be
good enough to inform the Court:
(a) what, if any, exchangeshavc taken place betweenthe Governments of
the United States and lran regarding recoiirseto ürbitration, concilia-
tion or any other pacific means for the settlement of their present
differenccs;and to furnish the Court with copies of any documents
relating thereto;
(b) whether the Government of either the United States or lran has
formally broken off diplomatic relations between the two Govcrn-
ments since the rnatters which are the subject of their presentdikr-
ences arose; and, if so, to furnish the Court with copies of any
documents relating thereto.
2. The Prcsident, while noting the certificateof Mr. DavidD. Newsom
appended to the United States Application, asks the Agent ofthe United
States to be good enough also to furnish the Court:
(a) with copiesaf any statements made by the United States representa-
tives in the Security Council in regard to the matters alleged in the
United States Applicationof 29 November 1979;18 DlPLOMATlC AND CONSULAR STAFF
(b) with copies of any officialstatements of the President of the United
States, the Secretary of State or of other United States authorities
relating to the mattersllegedin the United States Applicationof 29
November 1979;and any statements by Iranian authorities evidencing
those matters;
(c) with details of the number of the persons includedrespectively inthe
diplomatic, administrative, technical, consular and service staffwho
are the subject of the United States Application and request of 29
November 1979,with an indication as to the particular category to
which each belongs.
3. The text of the above questions to the Agent of the United Statesis
being communicated at the same time to the Government of Iran."
ThePRESIDENT: On 7December 1979a letter from the UnitedStatesAgent
giving the response of his Government to the questions whichhave just ken
read out wasreceivedbythe Registrar in the fonn of a declaration by Mr. David
D. Newsom, Under Secretary for Political Affairs in the State Department,
accompanied by a number of appendices (seepp. 43-115, infra).A copy of the
letter and enclosures was immediatelytransmitted to the Government of Iran
(sce p.499, infra).
On 4 December 1979 1 also telegraphed a request (seep.497, infra)to the
Secretary-Generalto transmit to the Court as rapidlyas possiblethe text of any
resolutionwhichtheSecurityCouncilmightadopt concerning the matter brought
beforetheCourt, as wellas of the recordsof the discussionsof that matter in the
SecurityCouncil.In responseto that requesttheSecretary-General hascommuni-
cated to the Court the text of Security Council resolution457 of 1979,together
with certain records and documents (seepp. 225-226 and 497, infra).
1note the presencein Court of theAgent and Counselfor the United Statesof
America.
The Government ofIran has not appointed an Agent. On the other hand, by a
letter telegraphedto the Presidentand receivedin thc Registryin the lateevening
of yesterday,9 Decernber1979,the Government of Iran has inforrncd the Court
of its view that on various grounds the Court cannot and should not take
cognizance of the case submitted to it by the United States Government, or
indicatethe provisional measuresformulated in the request.copyof that letter
was communicated immediatelyto the Agent of the United States of America.
1shall thercfore ask the Rcgistrar now to read the text of that letter.
Le GREFFIER:
<<.liail'honneur d'accuser réception des télégrammesconcernant la
réunion,le IO décembre1979, de la Cour internationale de Justice, sur
requêtedu Gouvernement des Etats-Unis d'Amérique,et de vous soumettre
ci-dessous la position du Gouvernement de la République islamiquede
l'Iran à cet égard.
1.Tout d'abord, le Gouvernement de la République islamiquede l'Iran
tientàexprimerlerespectqu'ilvoueàla Cour internationalede Justiceet à
scsdistinguésmembrespour l'Œuvrepar eux accompliedans la recherchede
solutionsjustes et équitablesaux conflitsjuridiques entre Etats. Cependant,
le Gouvernement de la Républiqueisfamiquede l'Iran cstimeque la Cour
ne peut et ne doit se saisir de l'affaire qui lui est soumise par le
Gouvernement des Etats-Unis d'Amérique,et de façon fort révélatrice,
limitéeà la soi-disant question des ((otages de l'ambassade américainea
Téhéran B.
2. Cette question en effet ne représente qu'un élémen mtarginal et
secondaire d'un problème d'ensembledont elle ne saurait être étudiée
séparément et qui englobeentre autres plus de vingt-cinq ans d'ingérences OPENINGOF THE ORAL PROCEEDINGS 19
continuelles par les Etats-Unis dans les affaires intérieures de I'Iran,
d'exploitationéhontéede notre payset dc multiplescrimesperpétrés contre
le peuple iranien, envers et contre toutes les normes internationales et
humanitaires.
3. Le problème encause dans le conflit existant entre l'Iran et les Etats-
Unis ne tient donc pas de l'interprétationet l'application destraitéssur
lesquets se base la requête américaine, mais découd l'une situation
d'ensemblecomprenant des éléments beaucoup plus fondamentaux et plus
comnlexes.Enconséauence.laCour ne ueut examinerlareauëte américaine
in déhorsde son vrai contextea savoir'l'ensembledu dossier politiquedes
relations entre'lran et les Etats-Unis au cours de ces vingt-cinq dernières
années.Ce dossier comprend entre autres tous lescrimes perpétrésen Iran
fomentéetexécutéenparlarCJA,l'évictiondu gouvernementnational légitime
du docteur Mossadegh, la remiseen place du Chah et de son régimeasservi
aux intérêts américain et toutes les conséquencessociales, économiques,
culturelles et politiques des interventions directesdans nos affaires inté-
rieures, ainsique des violations graves, flagranteset perpétuellesde toutes
lesnormes internationalesperpétrées par les Etats-Unis en Iran.
4. En ce qui concerne la demande de mesures conservatoires, tellc que
formuléepar les Etats-Unis, elleimpliqueen fait que la Cour ait jugéde la
substance mêmede l'affairequi luiest soumise, ceque celle-cine saurait
faire sans violer les normes qui régissentsa compétence.D'autre part, les
mesures conservatoiresétantpar définition destinées protégerlesintéréts
des parties en cause, elles ne pourraient avoir le caractère unilatéralde la
requête présentéepar le Gouvernement américain.
En conclusion, le Gouvernement de la République islamiquede I'Iran
attire respectueusement l'attentionde la Cour sur les racines profondes ct
l'essencemêmedela rcvolution islamiquede l'Iran, révolutionde toute une
nation oppriméecontrelesoppresseurs-ctlcursmaîtres,etdont l'examendes
muldules réwercussions relèveessentiellementet directement de la souve-
raine& nationale deI'Iran.
Veuillezagréer,Monsieur le Président,l'expressionde mes sentimentsles
plus distingués.
Téhéran,le 9 décembre1979.))
The PRESIDENT: On receipt of a request for ihe indication of provisional
measures of protection, the Court is bound under its Statute and Rules to
proceedto consideras amatter of urgencywhether thereis a relevantlegalbasis
for theexerciseof those powers undcr Article41 of ils Statute and whether such
measures ought to be indicated to preservethe respectivenghts of either party.
I thereforenowcal1upon the Agentof the UnitedStatesof Amenca to present
the oral observations of hisGovernment qn thesequestions. 1would ask him in
the course of his observations 10 inform the Court of the views of his
Government on the matters referred to in the lettei of the Iranian Government
which has just been read by the Registrar.1would ask him also to inforrn the
Court of the viewof his Government on the followingquestion, of which 1have
given him priornotice:
What significanceshould beattachcd by the Court, forthe purposeofthe
present proceedings,to resolution457adopted by the Secunty Councilon 4
December 1979? STATEMENTBY MR. OWEN
AGENT OF THE MVERNMENT OF THE UNITEDSTATES OF AMERICA
Mr. Roberts B. OWEN: Mr. President and distinguished Mcmbers of the
Court. My name is Roberts Owen, and 1have the honourto appear before the
Court today as Agent of the United States of Amerka in support of the request
of the United States for provisional measures of protection against the
Government of Iran. Mr. President, in viewof the extraordinary nature of the
matter whichis to be argued beforethe Court this afternoon the President of the
United Stateshas requested theAttorney-Generalof the United States to appear
before the Courtas Counsel in support of our request ler provisional measures.
With the Court's permission thereforewould like at this time to introduce to
the Court the Attorney-General,r. Benjamin R, Civiletti,who willcommence
the presentation on bchalf of the United States. ARGUMENT OF MR. CIVILETTI
COUNSEL FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA
Mr. Benjamin CIVILETTI: Mr. President and distinguishedMembersof this
Court, 1 appeartoday as Attorney-General of'theUnited Statesand advocate in
support of its request for provisional measuresof protection from illegalactsof
the Government of Iran.
1feelprivilegedto appear on behalf ofrnyGovernment. 1should alsosaythat
the United States is grateful to the Court for providing a hearing at this time.
If 1may bepermitted a personal introduction, 1have spent my working lifas
a trial lawyer in the United States. 1 have been an advocate both for the
Government and for those who oppose the Government, in both civil and
criminal suits.
Anyone who has been a trial advocate in any country would approach this
Court with respectand awe. In a rcalsensethis Court representsthe highestlegal
aspirations of civilizedman.
Yet 1 find myself addressing the Court with awe, but with restrained anger.
More than 50 of my countrymen are held prisoners, in peril of their lives and
sufferingeven as 1 speak. This imprisonment, and this suffering,are illegaland
inhuman. It takcs no advocate to bring this cause to you. The facls are known
worldwide, and every citizen ofthe world-trained inlaw or not-knows the
conduct to be cnminai.
1come to this Court, my Government cornes to this Court, not so that yet
another body willreiterate the fact that what wearc witnessing inIran is illegal.
The United States cornes here so that this tribilnal may demonstrate that
international lawmay not be tossed aside,that the international fabricof civility
may not he rent with impunity.
My Govcrnment asks this Caurt to take the nlost vigorous and the most
speedy action it can not to settle a rninor dispute with regard to a small
boundary, not to giveto one treasury from another, but to save livesand to set
human bcings free. This is what people everywhere-not just monarchs and
presidents, notjust lawyers and jurists--expect of what a judge in my nation
called the "omnipresence" that we know to be the law.
If1cometo you withrestraint, 1alsocometo you with urgency.We who speak
thesoberlanguageofjurisprudence Saythe UnitedStatesisseekingtheindication
ofprovisionalrneasures.What weare askingthisCourt foristhequickestpossible
action to end a barbaric captivity and to Savehuman lives.
For the first time in modern dipiomaiic hjstorv, a State has not only
acquicsccd in, hut participntcd in and is seeking political advantsge from ihc
illcealseiriircand im~risonmeritof [liedi~iomaticriersonnelof annthcr Stütc.It
ev& threiitens to p;t these diplomatic krsonnel ;ln trial. IfOur international
institutions, including thisCourt, should evenappear tocondone or tolerate the
flagrant violations of customary international law. State practice, and explicit
treaty commitments that are involvedhere, the resiiltwiHbe a seriousblow not
only to the safety of the American diplomatic persons now in captivity in
Tehran, but to the ruleof law withinthe international community.To allowthe
illegal detention and trial of United States diplomatic personnel and other
citizensto go fonvard during the pendency of this case would be to encourage
olher governmentsand individualsto believethat they may,withimpunity,seize
any embassy and any diplomatic agent, or indeed ;myother hostage, anywhere
in the world. Such conduct eannot be tolerated; every civilized government22 DIPLOMATICAND CONSULAR STAFF
recognizesthat and wethereforesubmit that this Court has a clear obligation to
take every legitimateaction to bring this conduct to an irnrnediateend.
We shall this afternoon discuss the simple, clear issuespresented and in the
following order. 1shallreviewthe applicablebasic principlesof international law
which bind both Iran and the United States, not only under customary
international law, but alsounder four treaties to which both States are parties.
These treaties are directly in point. Mr. Owen will then brieflysummarize the
factsto demonstrate to the Court thatthe Government of lran has committed,is
committing-and is proposing to commit--cfear, flagrant violations of these
principles of international law. We will next demonstrate that the Court has
jurisdiction over this dispute and the authority to indicate the provisional
measures requestedby the United States. Finally, we shall explain why, on the
basis of Article41 of the Court's Statute, an indication of interim measuresis
urgently needed and amply justified.
The international legal standards here are of ancient origin. They have
evolvedovercenturiesof State practice,and in recentyears havebeencodifiedin
a seriesof international agreements. It is on four of those agreements that the
Government of the United States relieshere.
Since the subject of this proceeding is focuied largely on the status and
immunitiesof diplomatic agents, 1 shall refer at the outset to the 1961Vienna
Convention on DiplornaticRelations,Thepurpose of that Convention, to which
both the United States and Iran are parties, was to codify afundamental, firmly
established rule of international law-that the immunity and inviolability of
embassiesand diplomats must be absolutely respected and that in no circum-
stance may a State engage in the type of conduct that is involved here in this
rnatter before this Court.
The first relevant provision of the Vienna Convention on Diplomatic Rela-
tions is Article 22, relating to the physical premisesof an embassy or mission.
The words of Article 22 are clear:
"1. The premises of the mission shall be inviolable. The agents of the
receivingState may not enter them, exceptwith the consent of the head of
the mission.
2.The receivingState isunder a specialduty to take al1appropriate steps
to protect the premisesof the missionagainst any intrusion or damage and
to prevent any disturbance of the peaceof the missionor impairment of its
dignity.
3.The premises of the mission, their furnishings and other property
thereon and the means of transport of the mission shall be immune from
search, requisition, attachment or execution."
Asto the personnelof sucha diplomaticmission,Article29of theConvention '
goes on to provide that everydiplomaticagent "shall beinviolable" and that he
shall be free frorn "any form af arrest and detention". The language is
unqualified: it prohibits any form of arrest or detention, regardless of any
grievance which the host State may suppose that it has against a particular
diplomat. There is a remedyavailable against a diplomat who a State believes
has engaged inimproper conduct-to require himto leavethe country. But the
Vienna Convention excludesany form of physical arrest or detention, for the
purpose of prosecution or for any other reason.
The Convention re-emphasizes the principle of diplomatic inviolability in
several different ways. Article 29 requires the receiving State to prevent any
attack upon the person, freedom or dignity of a diplomatic agent. Article 31
requires that each such agent enjoy unqualified "immunity from the criminal
jurisdiction of the receiving State".There is no exception; no matter what the
cause, the receivingState isprecluded from allowingthe criminalprosecution of .
a diplomaticagent. In the last fewdays, as wewillexplainlater in our argument, ARGUMENT OF MR. ClVlLETTI 23
this absolute immunity from criminal prosecution has taken on an overwhelm-
ing imporlance.
Article37 of the Convention extends the siimc absolute inviolability and
absolute irnmunitv from assault and from criminal trial to the administrative
and technical staff of an embassy.Al1but two of the more ihan 50 Ame~icans
currently beingheld hostage in Tehran are either diplomatic agents or embassy
administrative and tcchnical staff, sorne of whom also perform consular
functions.
Other immunitiesand privilegespertinent to this case are found in Articles24,
25, 26, 27, 44, 45 and 47 of the Vienna Convention on Diplomatic Relations.
Among theseare the inviolabilityof the archivesand documents of the mission,
the right of diplomatic agents and staff to communicate freely for official
purposcs, and the right to depart from the receivingState atany time they wish.
Over the hundreds of years thal these principles have been recognized and
honoured throughout the international community, there have been occasions
when a particular State has felt dissatisfredor aggn'evedby the conduct of a
diplomaticagent of another State or his government-and lran isclairningsuch
grievances now. For hundreds of years, however, States have uniformly
recognizedthat the only lawfulcourse open to them isto declare the diplomatic
agent persona non grata. When a State declares a diplomatic agent personanon
grala, his government mustwithdraw him or sufferthe eventual termination of
his diploniatic slatus.
These uniformly recognized principleshave been codified inArticle 9 of the
Vienna Convention. Under that Treaty, a receivingState can in effectexpelan
objectionable diplomat-but under no circumstancesmay a State imprison an
emissaryor put himor hcr on trial. In diplomatichistory andpracticethere isno
precedent or justification for the seizure ofa diplomat-let alone an entire
diplomatic mission.There is also no precedent or justification for the imprison-
ment and trial of such persons in an attempt to cuerce capitulation 10 certain
demands. It isdifficultto think of a moreobviousand more flagrant violationof
international law.
Both lran andthe United States are also parties to the second international
conventionon whichthe UnitedStatesreliesin thisproceeding-the 1963Vienna
Convention on Consular Relations. This Convention reflectsmany of the same
principles 1have just described. Under the Consiilar Convention every State
party, includingIran,has an international legalobligationto protect theconsular
facilitiesand membcrsof theconsularposts ofeveryotherState party. Ofcourse,
when personnelof a diplomatic missionare providingconsular services, theyare
entitled to the fullprotection afforded by the ViennaConventionon Diplornatic
Relations. The Convention on Consular Relations also requires the receiving
State to permit anothcr State party'sconsularofficersto communicatewith and
ofiîcersare themselves heldincommunicado by force.iyviolatedwhen theconsular
Apart ïrom these two Vienna Conventions, the United States and Iran are
also parties to the New York Convention on the Prevention and Punishment of
Crimes against 1nternationally Protected Persons, including DiplornaticAgents.
One of the essential premises of the New York Convention is stated in its
prcamble. It is that crimes against such internationally protected persons,
includingdiplomatic agents, are "a serious threat tu the maintenance of normal
international relations" and "a matter of grave concern to the international
comrnunity".
The Convention definesa numbcr of types of conduct as constitritingcrimes
within its scope. Under Article 2 it is a criminal act to participate as an
accomplicein an attack on the person or liberty of an internationally protected
person or in a violent attack on official premises. Under Article 4 of the
Convention,everyState party, includingIran, isrequired to prevensuch crimes.24 DlPLOMATlC AND CONSULAR STAFF
Under Article 7, cvery State party must take steps to see that those responsiblc
for such crimes are prosccuted. The Government of Iran has violated everyone
of thesc provisions in the plainestway.
All threc of the treaties that 1 have discussed were drafted by the United
Nations International Law Commission: thcy were adopted by conferences of
plcnipotcntiarics or by the United Nations General Assembly-and thus by the
vasi majority of the States of our world. They have been so widelyratified as to
demonstraie that they reflect universally recognized rules of international law.
Finally, the United States relies inthis case upon a bilateral treaty-th1955
Treaty of Amity, Economic Relations and Consulat Rights between the United
Statcs and Iran. ThisTreaty isin a senseeven broader than the three multilateral
conventions to which 1have previously referred. Under Article II, paragraph 4,
of the Treaty of Amity, each party has a legalobligation to ensure thatwithin its
territory the nationals of the other party shall receive "the most constant
protection and security". In addition, Article II provides that, if any United
Statcs national is in custody in Iran, Iran mus1 in every respect accord him
"reasonablc and humane trcatment". Under Articles II and XIX any such
national is entitled io communicate with his own government and avail himself
of the services of his consular oficials. Article XII1 requires that the consular
offieers and cmployees themselvesbe accorded the privileges and immunities
accorded by general international usage and that they be treated in a fashion no
lcss favourablc than similar officcrsand employees of any third country.
Mr. Presidcnt, that completes my biief summary of the principles of interna-
iional law that undcrlie the application of the United States. 1could go on to
discuss the provisions of Article 2, paragraphs 3 and 4, of the Charter of the
Unitcd Nations, undcr which Iran and al1other United Nations Members are
obligated 10 settle their disputes by peaceful means, and to refrain in their
international relations from the threat or use of force, but the United States
bclieves that the three multilateral conventions and the 1955 bilateral treaty
provide as clear a legal predicate as can be rationally required for its request for
an indication of provisional rneasures. ARGUMENTOF MR. OWEN
AGENT OF THEGOVERNMENTOF THE UNITED STATES OF AMERICA
Mr. OWEN: May it please the Court.
The Attorney-General has summarized the treaty provisionswhich form the
legal predicate for the United States' pending requestfor an indication of
provisionalrneasures-and I would like to open myportion of the argument by
making one brief comment about those treaty provisions.
Inmyjudgment, the most striking feature of the legal principles involvedin
this caseis their clarity and simplicity.Al1of the substantiveprinciples involved
are wellknown and familiar, and they are clear and unambiguous. This isnot a
caseinvolvingcomplicatedlegalconsiderations nr difficultquestionsof interpre-
tation; the onlyquestion hereisone ofthe application ofthe four treaties-an1
suggestthat the application of the treatieswilIbecomeveryclear indeed from a
brief reviewof the facts-to which I now turn.
Like the legal principles involved, the facts are simple-and tragicalso. 1
submit that a mere recitation of the events will dernonstrate beyondany doubt
whatever that the Government of Iran is today engaged,on a continuing basis,
in gross and obvious violations of the international legal obligations which it
.owesto the United States and to the international community ai large.
The irnmediatefactual story began on 4November of this year. On that day,
in the course of demonstration of severalthousand peopleimmediatelyoutside
the United States Embassy compound in Tehrün, severalhundred dernonstra-
tors broke away and commenced a physicalassault on the Embassy. 1will not
burden you with the details of the two-hour attack on the Embassy or the
mitnner iiiwhich the aattackersphysicallycut theiway into the Embassy, but I
should emphasize that throughout the attack, United States officials werein
contact with the Offic ofethe Prime Ministerof Iran and the Jranian Foreign
Ministry, vigorouslycallingfor security assistance--and yetthe Government of
Iran made absolutely no effort to prevent the seizure of the Embassy and its
personnel. Tndeed,in the days and weeks that have followed the initial attack
and the seizure of more than 50 American hostages, the chief of the Iranian
Government and the members of hiç Council have repeatedly praised and
approved the conduct of the captors, Instead of honouring its legalobligations
and seeking to prevent or remedy the violations of the rights of the United
States, the Government of lran has actually ratified those violations and made
them its own.
Since this last pointisimportant in fixingthe responsibility ofthe Govern-
ment of Iran, let me pause to emphasize that Government's complicity in the
conduct involved. In response to a questionrom the President ofthe Court, we
have subinitted to the Court a collection ofpublic statements made by Iranian
officials inthe last fewweeks,and 1would like to i-eferto two or throf those
called Iranian students, the Ayatollah Khorneini,then the de frieto Chief of
State, approved the students'action, and thenext day, 5 November, anurnberof
Tranian officialsdid exactly theame.On that day, 5 November, the Ayatollah
Khomeini publicly refusedto cal1upon the students to withdraw; the Com-
mander of the Revolutionary Guard congratulaled the students and pledgedthe
Guard's Cul1support for the action; the public prosecutor and the judiciary
announced their support;and then the Foreign Minister of Iran declared: "The
action of the studentsnjoysthe endorsement and support of the Government."26 DIPLOMATICAND CONSULAR STAFF
On 18November the Ayatollah Khomeini declared: "whatour nation has done
is to arrest a bunch of spies, who, according to the norms, should be
investigated,tried and treatedinaccordançe with our own laws."Hemade clear
at the same time that the hostages would be releasedonly if the United States
first met certain specifieddemands of the Iranian Government.
1 ask the Court to bear in mind that these statements emanated from a
Governrnent which is under a solemn and continuing legal duty to provide the
most constant protection and security to United States personnel. Indeed, as
documented in the matcrials we have submitted to the Court, two senior
members of the lranian Government have publicly acknowledged this legal
duty, whileat the same time approving its violation.
Continuing the story of the hostages, the fact is that since the time of their
capture they have heen subjected to a harrowing ordeal. Bound hand and foot
and frequently blindfolded, they have been subjected to severe discomfort,
complete isolation and threats, including repeatedthreais both by their captors
and by the Iranian Government to the effectthat, in certain circurnstances,they,
the hostages, would be put on trial and cven put to death. They have been
paraded blindfolded before hostile crowds, denied mail and visitors, and
essentially held incommunicado. Some time ago, it is true, five non-American
captives and 13 American hostages were released,but more than 50 United
States citizens continue to be held in these inhumane and dangerous circum-
stances. Moreover, recent reports suggestthat some of the hostages may have
been transferred from the Embassy compound to other places of confinement.
We haveno wayof knowingthe detailsof the conditionsof their confinementor
their treatment at any such new locations.
When these facts are held up against the standards of international law to
which the Attorney-General earlier referred, including the principles that every
diplomatic agent must be kept inviolate from any form of arrest or detention
and from any attack upon hisperson, freedomor dignity,1suggesithat it is not
really possibleto imagine any clearer violations of the four applicable treaties
than the violationspresentedin this case.On this score,I rnightalso add, theris
true unanirnityarnong international legalscholars. Sinceearly November therc
has been an outpouring of pronouncements from leading international legal
scholars throughout the world, and al1 have unanimously condemned the
lranian treatment of the American nationals in Tehran.
In addition, thesarneviewhas receivedthe public support of numerous well-
known organizations of jurists, includingvarious societiesof international law,
the International LawAssociation,and the International CommissionofJurists.
Without exception, the scholars and learned societies have condernned the
lranian hostage-taking as the purest kind of violation of international Iaw.To
citejust a singleexample,the retired President of this Court stated in a recent
interview as follows:
". ..the conduct of the Iranian authorities in this matter constitutes the
rnost flagrant violation ofthe norms of international law honouring the
privilegesand immunity of diplomatic missionsand their oficials".
He went on to Saythat history willrecord Iran's actions as "the rnost complete
list of infractions" againstthese universally recognizednorms of international
law.
I know of no dissent. Moreovcr, we are not speaking in the pas1tense. The
violationsare going forward and continuing asIstand here this afternoon. With
each passing day-indeed with each passing hour-the rights of the United
States and the rights of its citizensin Tehran are being assaulted in a manner
whichis totally inconsistent withthe rule of law.That on-goingand continuing
violation of plainiy established rightsis the essenceof the problem before the
Court this afternoon. ARGUMENT OF MR. OWEN 27
Having reviewed the substantive elements, Iegal and factual, of the dispute
with lran which the United States has brought before thisCourt, 1would like
now to turn to the question of the Court's jurisdiction over the dispute. As I
understand the teachings of the prior decisionsof the Court with respectto the
indication of provisional measures,it is not necessaryfor a State requestingsuch
measures to establish conclusivelythat the Court has jurisdiction. The urgency
of the situations which cal! for provisional measures is such that an effort to
reach finaland conclusivedcterminations with respectto jurisdiction could well
defeat the purpose of Articlc 41 of the Court's Statute. For these reasons, as1
understand it, the Court followsthe principlethat if the Party requesting interim
protectivemeasuresmakesa prima facie showingthat the Court hasjurisdiction
over the dispute, that showing provides a suficient jurisdictional predicatefor
the Court to act affirrnativelyon the request.
In this case,1 respectfully submit, the United States can make more than a
prima facie showing. Indeed, 1 think 1 can dernonstrate that the Court has
jurisdiction over the present disputebeyond any doubt at all.
In this connection let me refer to thejurisdictionrilprovisionsof the Optional
Piotocol ro the Vienna Convention on Diplornatic Relations.Article 1 of the
Protocol provides unequivocally:
"Disputes arisingout of the interpretaiion or application of ihe Conven-
tion shall lie within theompulsoryjurisdiction of the International Court
of Justice and may accordingly be brought before the Court by an
application made by any party to the dispute being a Party to the present
Protocol."
Needless to say, the United States is a party to a dispute with Iran. It has
repeatedly calledupon the Government of lran to releasethe hostagespursuant
to its international legalobligations,and Iran has repeatedlyrefused.Sinceboth
States are parties to the Protocol, andinceone of them (the United States) has
presented an application to the Court, Article 1confers rnandatory jurisdiction
upon the Court.
Itiç true that Articles II and III of the Protocol go on to provide that the
parties to thedisputemay agreeon other methods of settlingthedispute, namely
by arbitration or conciliation. That is to Say,the cornpulsoryjurisdictionof this
Court under ArticleIisunqualified,but underArticlesII and III the partiesmay
mutualty agree on arbitraiion or conciliation instead. 1 want to ~ernphnsizc.
howevcr.that tbesciilemcnt ~rocedurescontetnulatcd bv Articles II and II arc
purely optional. In the ~n~liihversionof the ~rhocol this isindicated not only
by the permissiveword "rnay" as it appears in ArticlesII and III,but also by the
Preambleto the Protocol, which indicatesexplicitlythe intention that the Court
shallhavejurisdiction "unless" arbitration or conciliationhas beenagreedupon
by the parties. Moreover, 1am informedthatthe saine conclusionflowsfrornthe
equally authoritativc texts of the Protocol in French, Spanish, Russian and
Chinese.And, finally,the same conclusion-the conclusion that the Court has
jurisdiction ifnosuchoptional agreementon arbitration or conciliation hasbeen
reached-is confirmed by two articles by well-known scholars, both of which
appear in a volume whose English titleisA ColIectionof StudiesonInternalional
Law. In Honor of Paul Guggenheim,published in 1968.May 1refer the Court
respectfullyto pages 634 and 695 of that volume, ;ktwhich Herbert Briggsand
Paul Ruegger emphasize that under treaty provisions of this kind the Court's
jurisdiction is obligatory where the parties have not in fact resorted to other
means of scttlement.
The Court willnot bc surprised to hear from me that no agreement on other
means of settfement has been reached in this case. In response to questions
propounded by the President, the United States Under Secretary of State for
PoliticalAffairs,Mr. Newsom,hasprovidedthecourt witha factualaccount(see28 DIPLOMATICAND CONSULAR STAFF
p.43, infru)ofthe effortsmade bythe UnitedStatesto open negotiations withthe
Iranian authorities, and the total rejection of al1 such overtures by the
Government of iran. Specifically,in early November, after the seizure of the
hostages, when the United States Government dispatched a distinguished
emissary,a former United States Attorney-General, to visit Iran to discuss the
hostagc-takingwiththcGovernment of Iran,that Government refusedevento let
him enter the country. He stayed in Istanbul for several days attempting
assiduouslyto opcn discussions,but eventuallyhe returned homewithout having
beenableto meetany represcntativeoftheGovernmentoflran. Moreover,asMr.
Newsom has stated, subsequent efforts by the United States to negotiate have
ken cquallyunsucccssful.In fact,everyoneof thc United States' repeated efforts
to opendirectcommunicationsbetweenthe twoparties hasbeen rebuffedby Iran
which, incidentally,hasevenrefusedto attend the relevantmeetingsof the United
Nations Sccurity Council. Under such circumstanccsthe United States respect-
fully submits that, even if Articles II and III of the Protocol required a pnor
attempt to arbitratc or conciliateas condition on thisCourt'sjurisdiction-and
wedo not bclievethat they do-that requirement would havebeen obviated by
this lranian conduct. 1shouldadd that exactlythe sameistruc with respectto the
Vicnna Convcntion on Consular Relations whose jurisdictional provisionsare
identical tothose of the Vienna Convention on Diplomatic Relations.
Turning to the elementsof the dispute whicharise under the Treaty of Arnity,
Economic Relations, and Consular Rights bctween the United States of
America and Iran, thcjurisdiction of the Court is again1 submit, crystaf clear.
Article XXI, paragraph 2, of the treaty provides in ils entirety as follows:
"Any dispute betweenthe High Contracting Partiesas to the interpreta-
tion or application of the present treaty, not satisfactorily adjusted by
diplomacy, shall be submittcd to the International Court of Justics, unless
the High Contracting Parties agree to settlement bysome other pacific
means."
Again, in viewof the fact that the repeatcd efforts of the United States to deal
with the dispute by diplomacy havc bcen consistently rebuffed bythe Govern-
ment of Iran, it seemsindisputable that undcr the Treaty of Amity, this case is
properly beforc this Court.
A finaljurisdictional issuearisesnder the Convention on the Preventionand
Punishment of Crimes against Internationally Protected Pet-sons, including
DiplomaticAgcnts. With respcct to that Convention, thejurisdictional showing
that WC can makc isadrnittcdly lesscompcllingthan the showingwehave made
with respect to the other threc trcaties. In contrast with the ViennaConventions
on Diplomatic and on Consular Relations, Article 13 of the Convention on
lnternationally Protected Personsrnight be read as requiringa six-months'effort
by the parties to arbitrate the dispute as a prerequisite to the Court's
jurisdiction.It isthe position of my Govcrnment, however,that where, asin this
case, one of the parties has closeddown the Embassyof the otherand has flatly
rcfused even to open communications, either through the other's special
emissary or in any othcr fashion, the arbitration requirement is rendered
inoperablc. It is out position, thererore, that we have made out a prima facie
showing of jurisdiction, cvcn under the Internationally Protected Persons
Convention. Moreover,cvenif no suchshowing hadbeenmade, al1of the major
claims presented in the Application of the United States are solidly based, i
submit, upon the other thrfc treaties-as to which, in Our view, the Court's
jurisdiction appears not merely prima facie, but beyond dispute.
At this point, inespunseto a question raised by the Presidentof the Court, 1
should make one final comment on the Couri's jurisdiction. As the Court is
aware, the Security Council of the United Nations has addressed the present
dispute, and in resolution No. 457, adopted six days ago, the Council called ARGUMENTOF MR. OWEN 29
upon the Government of Iran to bring about the immediate release of the
hostages. In such circurnstances it rnight conceivably be suggested that ~his
Court should not exercisejurisdiction over the same dispute.
1respectfully submit that any such suggestion would be untenable. It is. of
course, an impressive fact that the 15 countries represented in the Security
Council-15 countries of very diverse views and philosophies-have voted
unanimously-15 to nothing-in favour of the resolution to which 1 have
referred.The factremains,howevcr,that the SecurityCouncil ia politicalorgan
whichhas responsibilityfor scckingsolutions to international problems through
politicalmeans. By contrast, this Court isa judicial body with the responsibility
to employjudicial methods in order to resolvethose problems which lie within
itsjurisdiction. There is absolutcly nothing in the United Nations Charter or in
this Court's Statute to suggcst that action by the Security Council excludes
action by the Court, even if the two actions rnight in some respectsbe parallel.
Bycontrast, Article 12of the United Nations Charter providcs that. while the
Security Council is excrcising iis functions respecting a dispute, the General
Assembly shall not make any recornmendationon that dispute-but the Charter
places no corresponding restriction on the Court. As Rosenne has observed ai
page 87of histreatise, TheLawandPracfice ofrhe InternorionulCourt oJJusrice,
the fact that one of the political organs of the United Nations is dealing witha
particular dispute does not militate against the Court's taking actionon those
aspects of the sarne dispute which fall within itsjurisdiction.
Ta sum up on this point, the United States has brought to the Coura dispute
which plainly fallswithin the Court's compulsoryjurisdiction, and 1respectfully
submit that, if we can satisfy thc Court that an indication of provisional
measures isjustified and needed in a manncr consistent with Article41 of the
Court's Statute, the Court will have a duty to indicate such measures, quite
without regard toany parallelaction which rnay havebeentaken by the Security
Councilof the United Nations. Asto whether theactions of the SecurityCouncil
affectthe need for provisional measures, 1willhavc more to Saya littlelater in
my argument,butfirst 1would like toexplainthe specificreasonswhich underlie
our request for such an indication of such measures.
On this subject 1 start from the premise that an essential purpose of such
provisional rneasures is to prescrvc the rights of the parties pending the final
decision of the Court. Putting the matter in other terms, it is familiar
jurisprudence that the Court rnay look to seewhether any injury which may bc
done to one party or the other during the pendency<>[thecasewillbe, on theone
hand, an injury whichcan be remediedthrough the Court's finaldecisionorl on
theother hand, whether duringthe pendency of thecase one party willbe subject
to an injury which isactually irreparable. An injury of the former kind may or
rnay not justify an indication of provisional measures,but wherean irreparable
injury threatens or is actually being inflictedduring the pendency of the case,
there is clearjustification-and indeed an urgent need-for interim protective
measures. As the Court obscrved in the FisheriesJr~risdicticases, the Nuclear
Tests cases, and the Acgean Sca case, Article 41 of the Court's Statute
"presupposes that irreparable prejudiceshouldnot becaused to rightswhichaie
the subject ofdispute in judicialproccedings".
Applying this stündnrd of irreparable injury to the prcscnt case, 1submit that
the United Statesisclearlycntitled to interim measuresof protection.The simple
fact is that the United States'rights of the highest dignity and importance are
beingcurrently and irreparably violatedby the Government of Iran. Spccifically,
theinternational agreementsupon whichwe baseour claimhavcconfcrredupon
the United States the right to rnaintain a working and effective embassy in
Tehran, the right to have ils diplomatic and consutar pcrsonnel protected in
their livesand persons lrom cvery form of interferenceand abuse, and the righl
to have -its nationals protected and secure. As 1 indicatcd earlier, with each ARGUMENTOF MR. OWEN 3 1
principle of enforcing or sanctioning the status quo through indications of
interim measures-and citing casesand authorities-Judge DumbauId states as
follows(and I quote from p. 187of his treatise):
"It should be noted that the status quo thus sanctioned is not that at the
time of thejudgment, or atthe date suit isbrought, but the last uncontested
statusprior to the controversy."
The controversy whichwehave brought before the Court arose with the seizure
of the Embassyand the hostages in Tehran on 4 November 1979,and 1 submit
that the situation cries out for interim rneasurescallingupon Iran tolcasethe
hostages and the Embassy and thus return to the status quo as of 3 Novernber
1979.
In order to test the validity of this conclusion, 1 should like to pose for the
Court a simple hypothetical case+Let us assume that on 4 November 1979,
instead of allowingthe Embassyand the hostages to be seized,the Revolution-
ary Councilof Iran had announced that, unlesscertaindemands weremet by the
United States by-let us say-10 December 1979:the United States Embassyin
Tehran would then be attacked and its personnel taken hostage.
If in that situation the Government of the United States had brought its case
to this Court and requested an indication of provisional measures callingupon
Iran to desist from its threat, 1 suggest that the Court would have acted
affirmativelyon that request. In that situation,slibmit, the Court would have
called upon Iran to Ieave the American diplomatic staff in Tehran free and
inviolableand immunefrom prosecution-and 1want to emphasizethat that, in
essence, isexactly the basic provisional measure we are requesting from the
Court now. In other words, we would have beenentitled, in our view,to such a
provisional measure if Iran had not yet violated jtsinternational legal obliga-
tions to the United States, and, inurview,that necessarilymeans that we are
entitled to the same protective measures now-tiow that Iran has actuaHy
embarked upon a profound and continuing violation of our rights. To hold
otherwise at this time-to withhold such protective measures-would be to
allow Iran to benefit from actually usingforcc instead of merelythreatening to
do so.
For the foregoing reasons,we believethat weare clearlyentitled, as a matter
of lawand logic,to the protective measureswhichweare seeking,and wesubmit
that humanitarian considerations require no less.
At this point 1would like to turn to the question of whether there are any
possible legalobstacles toour request. We have consideredthat question with
care and we, at least, have concluded that there are none.
On this subject 1wouId refer at the outset to the telegraphicmessage (see
pp. 18-19. supra)which has just been receivedby the Court from the Govern-
ment of Iran and referenceto whichwasmade by the Presidentat the openingof
the hearing. Since that messageconstitutes Iran's only responseto the United
States'retluestfor provisional measures,1should liketo reply thereto on behalf
of my Government.
1think ilis significantthat the opening paragraph of the Iranian statement
expresses great respect for this Court and its achievements in resolving legal
conflicts betweenStates. It is Ourhope and expectation that this respectwilllead
the Government of Iran tohonour in fullwhateveraction the Court maytake in
responsc to the pending United States rcquest.
The main themeof the telegraphicstatementof theGovernment of Iran isthat
thequestion of the American hostagesin Tehran is onlyone ofseveralproblerns
ordisputesthat nowexistasbetweenthe twoGovernments.Itisallegedingeneral
tems that in various ways the Government of the United States has behaved
improperlytowards Iran in past yearsand that in thislarger contextthe problem
of the American hostagesin Tehran is only a marginal and secondaryproblem.32 DIPLOMATICAND CONSULAR STAFF
There are, 1suggest, two short answers to this proposition. First of all, Iran's
view of its treatment of the Amcrican hostagcs as a secondar problem is not
shared by the Secretary-General of the United Nations or the Security Council
of the United Nations. They have unanimously characterized the hostages'
captivity as a major threat to international peace. Secondly, to the extent that
there are other disputes between Iran and the United States. Iran has made
absolutely no effort to bring any such matters before theCourt. The fact is that
the only dispute which hasbeen brought before the Court is the dispute relating
to the taking of the American hostages and we submit, with the greatest respect,
that that is the only dispute with which the Court can now deal. The
Government of Iran asserts that the Court should not take cognizance of the
dispute relating to the hostages, but for the reasons1have previously indicated,
that is sirnply incorrect asa matter of law. The hostage question clearly lies
within the Court's jurisdiction and, we submit, is properly presented for your
decision now.
Paragraph 4 of Iran's staiement of yesterday goes on to suggest-albeit
somewhat indirectly-that the United States is now improperly seeking part or
al1of the relief which itseeks on the merits. In fact, if Ihe Court compares our
requesi for interim measures with the form of judgment that we are seeking, it
will find that the two pleadings request different forms of relief-except in one
respect. Thc onfy respect in which our request and OUT Application overlap is
that both pleadings ask in effectfor an order calling for the immediate release of
the hostages and their safe departure from Iran.
1 submit, however, that this convergence of the two requests results rnerely
from an excess of caution on the part of the United States. Frankly, we are
hopeful that this Court will indicate measures caHing for immcdiate release of
the hostages and that Iran, consistent with itsasserted respect forthis Court, will
cornply long before il becomes necessary for the Court to write its final
judgment. It iç our hope and expectation, therefore, that the request for a
judgment requiririg release of the hostages will have becorne moot long before
the Court acts on our Application for such a judgrnent. In a very real sense,
therefore, our request for release of the hostages, being one of the very greatest
urgency, should havc appeared only in our pending request for an indication of
provisional measures-and should not have been included in Ourapplicationfor
judgment. Nevertheless, not wishing to presume as ta how the Court will rule as
a result of today's hearing, we took the conservative courseof including a similar
requesl in our Application. 1earnestly subrnit, however, that such conservatism
on our part does not in any way militate against out request foran indication of
interim rneasures; the need for such relief is urgent in the extreme.
This brings rnc to the final point made in yesterday's statement by the
Governrnent of Iran. It is there suggested that if provisional measures are
indicated by the Court, they cannot properly bc made unilateral-the implica-
tion being that the Court could not properly cal1for the release of the hostages
by lran without calling for some equivalent action by the United States.
That suggestion issirnply, 1submit, incorrect. Article 4of the Court's Statute
authorizes the Court, where circumstances so require, IO indicate "any provi-
sional measures which ought to be taken 10 preserve the respective rights of
eirherparty". 1submit that clearly contemplates that where oneof two parties is
unilaterally causing irreparable injury to the other, a unilateraf provisional
measure is entirely appropriatc. As 1 shall indicate inü moment, the United
States would have no objection if the Court were to include, in an indication of
provisional measures, thc conventional provisions calling upon both parties to
avoid aggravation of the dispute and preserve their rights-but weneverthefess
assert an urgent need for unilateral action by han to release the hostages.
Having provided that response to the recent statemeni ofthe Governrnent of
Iran, 1should now like to return to the question of whether there areany legal ARGUMENTOF MR. OWEN 33
obstacles which might militate against our pending request. In this respect we
have considered with care the possibility that the Court's 1976decision in the
AegeanSt,a ContinentalSheIfcase might beviewedascontrary authority against
our request, having in minci the recent action of the United Nations Security
Council. 1respectfullysubmit, however,that the facts and lawof the Aegean Seo
case are so distinguishable that, far from militating against an indication of
provisional measures in this case, they actually support the present position of
the United States.
In theAegean Sea dispute between Greece and 'rurkey, both parties partici-
pated in the SecurityCouncil debates on the dispute. Both parties agreed in the
Security Council that a solution to the dispute çould be achieved only through
direct negotiations between the parties. After the Council called upon both
parties to negotiate, both parties expressly agre~xithat thcy woufd do so.
Moreover, in the Aegean Sea case the question whether violations of interna-
tional law were occurring was open to legal question, and the jurisdiction
of the Court was also in doubt. In that situation, when Greece requested
that this Court indicate provisional measures calling upon Turkey to refrain
from certain exploratory activities on the disputed continental shelf, the
Court assumed that both States would honour their undertakings to negotiate
and that aggravation of the dispute would thereby be avoided. Most impor-
tantly, the Court was not persuaded that the activities of which Greece
complained werc actually threatening irreparable injury. For those reasons, as
wc read that case, the Court concluded that an indication of provisional
measures was unnecessary.
The contrast with the present case, 1 submit, is very clear indeed. In the
present case the Court plainly has jurisdiction; the authorities of lran have
refused to send a representative to take part in the proceedings ofthe Secunty
Council; they have rejectedthe Council'sresolution as "an American plot"; they
have refused to communicate with the United States Government in any way al
all; their violations of international law are clear; by threatening trials, they are
continuing to aggravatc the dispute; and truly irreparüble injury is proceeding
day by day. In the present casethe need for protective measures, 1submit, could
not be more imperativc.
If there were any doubt about the distinctions bctween the Aegean Sea case
and the present one, 1think it is laid to rest by the terms of the resolution of the
Security Council in this case and the debate which attended its adoption.
Resolution 457, to which the President of the Court has earlier referred, in its
firstoperiitive paragraph,
"Urgently calls on the Governmcnt of Irari to release immediately the
personnel of the Embassy of the United States of America being held in
Tehran, to provide them protection and to allow them to leave the
country."
The second operative paragraph
"Further calls on the Governments of lran and the United States of
America to take steps to resolve peacefully tlie remaining issues between
them to their mutual satisfaction in accordance with the purposes and
principles of the United Nations."
That is to say, the resolution calls upon the parties to take steps directed tot
the release of these hostagcs, but to "the rcmaining issues" betweenthe two
States. Tliose remaining issues, however, are not before this Court, and the
Court can take no responsibilityfor them. Under itsStatute the Court's function
"is to decidein accordance with international larvsuch disputesas are submilted
not be, undertaken by the Security Council.ch has not been, and of course could34 DIPLOMATICAND CONSULARSTAFF
In short, there is a cleardivision of responsibilitieshere and that divisionwas
clearfy recognized during the proceedingsin the SecurityCouncil. At that tirne
United States Ambassador Donald McHenry stated as follows:
"The United Stateswishesto place onthe record that the adoption of this
resolution by the Security Council clearly is not intended to displace
peacefulefforts in other organs of the United Nations. Neither the United
States nor any other Member intends that the adoption of this resolution
shall have any prejudicial impact whatevcr on the request of the United
States for the indication of provisional measures of protection by the
International Court of Justice."
Before making that statement Ambassador McHenry and his colleagues in-
formed Council Membersthat the United Stateswould speak in this veinduring
the debates about this pending case beforethe Court,and al1of the Membersso
consulted were in agreement with the statement. Moreover, after the statement
was made, no Member of the Council disagreed withthe stated intention to the
effect that the Council's action should not impede the United States' pending
requestbefore this Court. Thus al115Membersofthe SecurityCouncil evidently
agree that the Court is free to act affirmativelyon the pending request of the
United States if it isnclined to do so.
Let me conctude my argument in favour of interim protective measuresby
reciting exaclly what measures are being requested. The Government of the
United States respectfullyrequeststhat the Court, pendingfinaljudgmenl in this
case, indicate forthwith thefollowing:
First, that the Government of Iran immediatelyreleaseal1hostages of United
States nationality and facilitate theprompt and safedeparture from Iran ofthese
persons and al1other United States officiaisin dignified and humane circum-
stances.
Second, that the Governrnent of Iran immediately clearthe premises of the
United States Embassy, Chanceryand Consufatein Tehran of al1personswhose
presence is not authorized by the United States Government and restore the
premises to United States çontrol.
Third, that the Government of Iran ensure that al1 attached.to the
United States Embassyand Consulate should be accorded, and protected in, full
freedom of movement necessary to carry out their diplornatic and consular
functions. That is to say,to the extent that the United Statesshould choose,and
Iran should agree, to the continued presence of United States diplornatic
personnel in Tehran, they must bepermitted to carry out their functions in
accordance with their privilegesand immunities.
Fourth, that theGovernment of Iran not place ontrial any person attached to
the Embassy andConsulate of the United States-and refrain from any action
to implement any such trial.
Now, in connection with this fourth request, 1should liketo draw the Court's
attention to recentreports that Iran may intend to continue the captivityof these
hostagesso that they mayappear before somesort of international commission.
unlawful. Accordingly, in light of these recent reports, with the Court'sotally
permission,the United States wishesnowto amend its fourth request for interim
rneasures to add: that the Government of Iran must not detain or permit the
detention of these persons in connection with any proceedings, whether of an
"international commission" or othenvise, and that they not be forced to
participate in any such proceeding.
Finally, the fifth request of the United Statess that the Government of Iran
ensure that no action is taken which might prejudice thenghts of the United
States in respect of therrying out of any decisionwhichthe Court may render ARGUMENT OF MR. OWEN 35
on the merils, and in particular neither take, nor permit, action that would
threaten the lives, safety, orll-beingof the hostnges.
This recilation of the provisional measures requested by the United States
makes clear, we believe,that we are seeking an indication which is relatively
specificas to the measures to be taken. Werecognizethat in somecases itmay be
appropriate simply toindicatc, in general tcrms, that each party should take no
action to aggravate the dispute or prejudice the rights of the other party in
respect of the carrying out of the Court's decision on the merits. As 1indicated
earlier, the United States has no objection to the inclusion of such general
provisions, subject, of course, to the usual specification that such measures will
apply on the basis of reciprocal observance1 earnestly submit, however,that, in
the circumstances of this particular case, any provisional measures indicated Sy
the Court should be specificas to the release of the hostages, the clearing of the
Embassy, and the inadmissibility of putting the hostages on trial, or bringing
them before any international commission. Every effort should be made to
ensure that the Court's message will be clearly understood in Iran, thus
maximizing the chance that it will be effective.
There is ample precedent, 1 subrnit, for the specificityof our rcquest. In the
Anglo-Zranian Oil Co. case, the Court, in indicating provisional meaçures,
included tiot only the usual language about avoiding prejudice to the nghts of
the parties and aggravation of the dispute; it also included particularized
measures as to the method by which the Anglo-Iranian Oil Company should be
managed during the pendency of the litigation. Similarly,as another exarnple, in
the FisheriesJurisdictinn cases, the Court indicated very specificprovisional
measures as to the enforcemcnt of fisheries regulations and even permissible
annual catches of fish.1respectfully submit that, if such specificmeasures were
appropriate in the context of these commercial cases, they are the more
appropriate in a case which involves the lives and liberties of some 50 human
beings and in which, because of divergences in culture and language, misunder-
standings as to meaning rnayarise unless any provisional measures indicated by
the Court are as specificand hence as clcar as possible. The specificrneasures
indicated in the case between Belgiumand China which 1have earlier discussed
are illustrative of what is required; the measures therc indicated arc not uniike
those sought here.
In concluding my argument this afternoon, 1 would respectfully-most
respectfully-urge that the Court rule on the requestof the United States with
the maximum possible expedition. We have taken the liberty of reviewinn the
timing of the CÔurt'sactions on requests for provisional mcaiures in yearspast,
and we Iiavefound that in one case. the Court indicated vrovisional measures 13
days after the request was filed;in another case tCOU ruled on the request in
nine days; and in a third case, the Court acted in only six days. Today isthe
eleventh day sincethe pending United States rcquest wasfiled,and werecognize,
of course, thattheCourt willneed some amounr of additional time to delibcrate
and to act. Nevertheless, we respectfully rcquest that the Court act with the
maximum possible speed-because weare dealing here, again, not with commer-
cial interests, but with the lives and liberties of persons who have now been
under close confinement and imminent peril for more than five weeks. The
danger for these 50 or more lives increases as each day goes by. It is critically
important to my Government to achieve the imrnediate release of these
individuals, and 1suggest that it is no less irnportirnt to the world community
anMr. President, distinguished and learned Members of the Court, we believe
that this case presents the Court with the most drarnaticopportunity it has ever
community's expectation that the Court will act vigorously in the interests of36 DIPLOMATIC AND CONSULAR STAFF
international law and international peace. The current situation in Tehran
demands an immediate, forceful, and explicitdeclaration by the Court, calling
upon Iran to conform to the basic rulesof international intercourse and human
rights. Only in that manner1 respectfullysuggest,can the Court discharge its
high responsibilitiesder the Charterof the United Nations.
On behalfof the Government of the United States of America,1respectfully
request that theCourt indicate provisional measures calling upon the Govern-
ment of Iran to bring about the immediatereleaseof the United Statesnationals
nowheld captivein Iran and the transfer of control of the American Embassyin
Tehran to the Government of the United States. QIJESTIONS BY JUDCE MOSLER AND BY THE COURT
The PRESIDENT: Mr. Owen, Judge Mosler has one question which he
would like to put to youas Agcnt of the United StatesGovernment, and 1 have
ccrtain further questions to put to you on behalf of the Court. You may either
rcplyto thesequestions now, ifyou think that isconvenient,or you may reply in
writing, but for the vcry rcason whichyou yourself indicatedat the end of your
argument, this isa vcry urgcnt mattcr and thereforewewoufdwishto haveyour
replies withthe uimost despatçh.
Judge MOSLER: With your permission,Mr. President,Iwouldliketo put the
followingquestion to thc Agent of the United States or America.
The first submission of the United States requesi for the indication of
provisional measures is worded as follows:
"That the Governrnentof Iran immediatelyrrleaseal1hostagesof United
States nationality andacilitate the prompt and safedeparture from lran of
these persons and al1other United States officialsin dignificdand humane
circumstances."
Would the Agentof the United States be so good asLOprovide further details
rcgarding the persons refcrred to herein as "al1 other United States officials"?
The PRESIDENT: Mr. David D. Newsom. in rssponse to my request of 4
Deccmber 1979Torcertain information, stated in paragraph 3of his Declaration
of 6 December 1979that Mr. Ramsey Clark had gone to lran on 7 November
1979in a vain attcmpt "to deliver a messagefrom the President of the United
States to LheAyatollah Khorncini and to seek the immediate rclease of the
hostages". He further stated inthai paragraph that the United States Govern-
ment has "communicated positions on various matters relaiing tothe crisis to
the lranian Chargé d'Affaires in Washington" and has also "put specific
questions to the Chargéd'Affaires". Would the Agcnt of the United States
pleasebe good enough to lurnish the Court witha copy of the messageintended
to be delivered by Mr. Ramsey Clark and of any documents or questions
communicated to the Iranian Chargéd'Affairesin Washington.
In paragraph 8,that is, the finalparagraph of the declaralion by Mr. David D.
Newsom, to which I have relcrred, he furnished certain information concerning
the categories of pcrsons statcd to be held in the United Staies Embassy or
clsewherein Iran.The Court would,however,begratefulif'you wouldprovideit
with more details, making clear the particular status of everyone in each
category and specifying the rnanner of their accreditation.
Reference is niade in the Application to the seizure of two United States
Consulates in, rcspcctivcly,Tabriz and Shiraz. The Court would be gratcful to
receivesuch information as the United States Government may possçss as to
what happened to the premiscs and personnel of these consulates and, in
general, toits consular star inIran.
Am 1understanding thai you wouldwish to replynow, or would youwishto
reply in writing?
Mr. OWEN: Mr. President, to some extent these questions cal1for factual
deiail of a kind which 1do not have availableas 1stand here thisarternoonand
1,thcrefore, respectfullyask the Court's permission to assemble those factual
details in the course of the eveningand we willhavea written response toal1of
thosequestionsin the hands of the Court tornorrow morningbefore theopening
of business(see pp. 116-117, infra). CLOSINC OF THE ORAL PROCEEDINGS
The PRESIDENT: Well, 1thank the Agent and Coiinsel of the United States
of Amcrica for the assistance they havegiven the Court. 1 ask the Agent to
remain at the disposa1of the Court for any further information that it may
require. Subjectto that reservation, 1declarethe oral proceedingson the request
of the UnitedStatcsofAmericafor the indicationof provisional measuresin this
case closed.
The Court will giveits decision on the United States' requestat a vcry early
date in theform of an Order read at a further public hearing.
The Court rose at5.10p.m. SECOND PUBLIC STTïING (15XII 79, 5 p.rn.)
Present: [Sec sitting of 10XII 79.1
READINGOF THEORDER
The PRESIDBNT: The Court meets today to deliver its decision on the
request made by the United States of Arnerica for the indication of provisional
measures' inthe caseconccrning UnitedStates DiplornaticundConsularSlaflin
Tehran, piirsuant to Article 41 of the Statute of the Court.
The Court's decision takes the form of an Order. which 1shall now read. In
accordance with the usual practice, 1 omit the opening formal paragraphs
reciting the institution of proceedings, and subsequent procedural steps.
[The President reads paragraphs II to 46 of the Order2.]
1shall ask the Registrar to read the operative clause of the Order in French.
[The Rcgistrar reads the operative clause in French3.]
The decision of the Court is unanimous, and no Member of the Court has
appended any opinion or declaration thereto.
Article 41, paragraph 2, of the Statute requires that notice of the measures
indicated by the Court be fortbwith given to the parties and to the Security
Council. 1 note the presence in Court of the Counsel of the United States of
America, to whom a sealed copy of the Order has been delivered during the
present sitting. The Government of Iran is being informed by telegram4of the
measures indicated,and a copy of the Order is being transrnitted to it by the
most rapid possible means. A sirnilar telegram, and a copy of the Order, are
being despatched to the Secretary-General of the United Nations.
1 declare the sitting closed.
(Signed) Humphrey WALWCK,
President.
(Signed) S. AQUARONE,
Registror.
See pp. 11-12,supra.
I.C.J.Reports 1979,pp.12-20.
Ibid., PP.-20-21. -
See pp. 504-505.infra.
Oral arguments, Minutes of the Public sittings held from 18 to 20 March and on 24 May 1980, President Sir Humphrey Waldock presiding