Non- Corrigé
Uncorrected
CR 96/13
International Court Cour internationale
of Justice de Justice
THE HAGUE LA BAYE
YEAR 1996
Public sitting
beld on Tuesday 17 September 1996, at 9.30 a.m., at tbe Peace Palace,
President Bedjaoui presiding
in tbe case concer.ning Oil Platfor.ms
(Islamic Republic of Iran v. United States of America)
Preliminary Objection
VERBATJ:M RECORD
ANNEE 1996
Audience publique
tenue le mardi 17 septembre 1996, à 9 b 30, au Palais de la Paix,
sous la présidence de M. Bedjaoui, Président
en l'affaire des Plates-formes pétrolières
(République islamique d'Iran c. Etats-Unis d'Amérique)
Exception préliminaire
COMPTE RENDU - 2
Present: President Bedjaoui
Vice-President Schwebel
Judges Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Karoma
Vereshchetin
Ferrari Bravo
Higgins
Parra-Aranguren
Judge ad hoc Rigaux
Registrar Valencia-Ospina - 3 -
Présents M. Bedjaouil Président
M. Schwebel 1 Vice-Président
MM. Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Karoma
Vereshchetin
Ferrari Bravo
Mme Higgins 1
M. Parra-Arangurenl juges
M. Rigaux 1 juge ad hoc
M. Valencia-Ospina 1 Greffier - 4 -
T.he Government of the 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 Professer of International Law, University of
Cambridge, Member of the International Law Commission,
Mr. Luigi Condorelli, Professer 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.B.E., Q.C., F.B.A., Whewell Professer 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 Government of the United States of America is represented 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,
Professer Andreas F. Lowenfeld, Rubin Professer 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.E.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: Today the Court will resume its public hearings 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). I now give the floor to Mr. John Crook to continue the
pleadings for the United States of America.
Mr. CROOK: Thank you, Mr. President. Mr. President, Members of the
Court, it is a great honour for me to appear before you today on behalf
of the United States.
Professer Lowenfeld yesterday showed how the 1955 Treaty simply does
not regulate the events that the Islamic Republic of Iran has placed at
issue here. This morning, I shall supplement Professer Lowenfeld's
presentation by examining sorne of the history of the treaty, its
structure, and the three specifie provisions invoked by Iran. All of
these will show that the 1955 Treaty does not regulate the issues of use
of force between the parties placed in question here.
I. THE 1955 Treaty'S HISTORY SHOWSITS LIMITED CHARACTER
As Professer Lowenfeld noted yesterday, this treaty was one of about
twenty substantively similar treaties concluded by the United States with
other countries in the years following the Second World War to promote
trade and investment within the territory of each party by the others'
nationals. A list of these and ether similar treaties is to be found in
International Legal Materials, Volume 20, at page 565 (1981). This
particular treaty was signed in 1955, and entered into force in 1957.
Its history indicates that there was nothing particularly remarkable
aboutit, nor did it mark any drastic shift in the Parties' relations.
Rather, this is one in a century-long succession of commercial and
CR 96/13 - 9 -
consular treaties between the United States and Persia and then Iran. In
substance, it was much like ether post-war treaties. In form, it was a
shortened and simplified version of the text generally used. Its history
does not support the view that this treaty was the foundation of sorne
grand alliance.
All of this is reflected in the United States Senate hearings on the
treaty cited by the Islamic Republic of Iran as Exhibit 98 to its
Memorial. These materials give a good explanation of the nature and
scope of the treaty. They show that it was one of three treaties
considered by the Senate at the same time; the ether two being with The
Netherlands and Nicaragua. The Department of State witness, whose views
are also cited by the Islamic Republic of Iran, described these treaties
to the Senate Foreign Relations Committee as being:
"similar to ethers considered by the Committee during the past
several years. They deal with the customary subjects, such as
the right to carry on business, protection of persans and
property, nondiscriminatory treatment of trade and shipping
and, in the case of the Iran treaty, consular rights and
privileges." (Commercial Treaties With Iran, Nicaragua and The
Netherlands: Hearings before the Benate Committee on Foreign
Relations, 84th Congress, 2nd Session 1 (1956), Exhibit 98 to
the Memorial of the Islamic Republic of Iran.)
The State Department witness continued: "The three treaties now
under consideration are of the traditional type, based upon existing
precedents: they contain no innovations raising problems of
reconciliation with domestic law." (Id. at 2.) The principal innovation
reflected in the Iran treaty was perhaps its shortened and simplified
form. The State Department witness described the treaty as: "an
abridged and simplified version of the treaty type, but [it]
incorporates, nevertheless, the substance of most of the protective
CR 96/13 - 10 -
provisions of the longer treaties" (id.). This material, as I noted, is in
Iran•s Exhibit 98 tc the Memorial.
This background illustrates the 1955 Treaty's practical, commercial
character. There is nothing here of high politics or strategy. This was
not a grand political alliance. Rather, it was one of a century-long
succession of commercial and consular treaties between the Parties. And
this appears from Secretary Dulles' report explaining the treaty tc the
Senate. He said:
"This treaty places economie relations between the United
States and Iran on a bilateral basis similar tc that which
existed under the treaty of friendship and commerce between the
United States and Persia signed at Constantinople on
December 13, 1856 (11 Stat. 709), and terminated May 10, 1928.
It replaces the provisional agreement relating tc commercial
and ether relations, concluded at Tehran May 14, 1928 (47 Stat.
2644) [and had an associate provisional agreement which he
describes] and thus establishes the relations of the parties on
11
a more modern and adequate basis than has heretofore existed.
(Message from the President of the United States, transmitting
a treaty of amity, economie relations and consular rights
between the United States of America and Iran, signed at Tehran
on August 15, 1955. 84th Congress, 2nd Session, Executive E,
at 2.)
Thus, the 1955 Treaty was not an innovation. Instead, it was part
of an evolving series of commercial and consular agreements between the
Parties. The first, that was signed at Constantinople in 1856, remained
in force for 71 years, until 1928 (Treaty of Friendship and Commerce, 11
Stat. 709; TS 273; 8 Bevans 1254).
Article 1 of the 1856 Treaty declares that between the two
governments and their citizens or subjects "There shall be hereafter a
sincere and constant good understanding", a statement of aspiration that
has regrettably not always been attained. The 1856 Treaty otherwise
addresses practical matters: the exchange of diplomatie representatives,
protection of travellers and merchants, the rights tc import and sell
CR 96/13 - 11 -
rnerchandise, and the roles of consuls. Its essence is commerce and
consuls.
The 1856 Treaty was followed in 1928 by a more modern agreement on
trade and commercial relations. It too was of a highly practical
character (Agreement on Commercial Relations, effected by exchange of
notes, May 14, 1928, 47 Stat. 2644; EAS 19; 8 Bevans 1263). It addressed
the treatment of diplomats and consuls, protection of nationals, and
reciprocal most-favoured-nation tariff treatment. Again, it was
utilitarian to the core.
II. THE TREATY'S STRUCTURECONFIRMSITS LIMITED CHARACTER
Beth of these earlier agreements show how the parties sought to
promote friendly relations and commerce between them, through concrete
and specifie measures. The 1955 Treaty is the lineal descendent of these
earlier texts.
The treaty contains 23 articles; Iran rests the substance of its
case on three. However, the Court should consider the total structure of
the 1955 Treaty, since it illuminates beth the obligations contained in
particular articles and those articles' limited territorial application.
Each of the three provisions invoked by Iran must be exarnined in this
total context. Each can be correctly understood only if read in harmony
with the treaty•s overall structure and with all of its ether provisions.
Given the importance of this structure to understanding its specifie
provisions, I will take a little time to review that structure. I
believe this may also help to illustrate how little Iran•s claims here
have to do with the actual substance of this treaty. The Islamic
Republic of Iran places heavy reliance upon Article I, which introduces
CR 96/13 - ~2 -
the treaty and, together with the short preamble, is a precursor to the
detailed provisions that follow.
Article II governs entry into the territory of a party to carry on
trade and the rights of nationals of each country in the territory of the
other.
Article III deals with recognition and rights of companies in the
territory of a party.
Article IV (~) is the second provision relied upon by the Islamic
Republic of Iran. It is a general obligation regarding fair and
equitable treatment of nationals and companies of the other party. The
rest of Article IV contains detailed rules protecting the property of
nationals and companies of each party in the territory of the other.
Article V deals with acquisition and disposai of property and patent
and trademark protection in the territory of a party.
Article VI regulates taxation there.
Article VII regulates exchange controls.
Articles VIII and IX lay down rules governing trade, including
tariffs, and other measures affecting imports into the territory of a
party.
Iran invokes Article X (~), a general provision regarding freedom of
navigation and commerce. The rest of Article X prescribes specifie rules
regulating maritime navigation.
Article XI deals with State-owned enterprises and monopolies within
the territory of a party.
Articles XII through XIX regulate consular questions.
Article XX contains certain exceptions, while Articles XXI through
XXIII deal with settlement of disputes, entry into force and the like.
CR 96/~3 - 13 -
These provisions are inter-connected, each is part of a detailed and
integrated structure for promoting and regulating commerce, investment
and consular relations within each party's territory. Nothing in this
structure, or in any specifie provision, suggests any intent by the
parties to replace or incorporate the rules of international law
otherwise regulating any outbreaks of armed conflict between them.
Mr. President, Members of Court, in the next part of my argument I
shall show how the specifie Articles cited by Iran do not apply to the
circumstances here.
III. THE SPECIFIC ARTICLES CITED BY IRAN DO NOT APPLY
In light of the history and structure I have described, let us
examine the three brief treaty Articles on which this claim entirely
depends.
A. Article I. The Islamic Republic of Iran first invokes Article I,
a short provision stating that "there shall be firm and enduring peace
and sincere friendship between the United States of America and Iran".
The expansive arguments that Iran rests on this short article are
typical of all of its claims here. This whole case rests upon bits of
treaty text isolated from context. These bits of text are then stretched
to incorporate many other rules of international law, including the
Charter and the law of armed conflict. Thus, Article I is asked to carry
all of Iran's claims regarding the events of 1987 and 1988, including the
many inter-linked factual and legal disputes we have described. With
respect, this cannot be.
CR 96/13 - u -
When we examine the specifie wording of Article I several things
appear.
First, this is not the sort of clear language used by States and
careful international lawyers wishing to create specifie international
legal obligations. There are no specifie rules nor standards. There are
no specifie calls for action. Instead, Article I uses language of
aspiration. It describes circumstances the parties hoped would mark
their future relations: they sought "firm and enduring peace and sincere
friendship" .
Such language is hardly unique to this treaty. Such texts are to be
found in many treaties involving countries in all regions of the world.
For example, Article I of the 2950 Treaty of Friendship between Italy and
Turkey states that: "There shall be everlasting peace and friendship
between Turkey and Italy." (Treaty of Friendship, Conciliation and
Judicial Settlement between the Turkish Republic and the Italian
Republic, signed at Rome on 24 March 2950, 96 u.NTS 209 (2951) .) Article
I of the 1957 Treaty of Friendship between Japan and Ethiopia requires
that: "There shall be perpetual peace and friendship between Japan and
Ethiopia and between the nationals of the two countries." (Treaty of
Friendship between Japan and Ethiopia, signed at Addis Ababa on 19
December 1957, 325 u.NTS 99 (1959) .) Article I of the 2948 Treaty between
Hungary and Czechoslovakia bound the parties to "join forces in a policy
of lasting friendship" (Treaty of Friendship, Co-operation and Mutual
Assistance between the Hungarian Republic and the Czechoslovak Republic,
signed at Budapest, 16 April 1949, 477 u.NTS 190 (1963)). Article I of
the 1953 Treaty between the United Kingdom and Libya provided that:
"There shall be peace and friendship and a close alliance between the
CR 96/13 - 15 -
High Contracting Parties."
(Treaty of Friendship and Alliance between
the United Kingdom and Libya, signed at Benghazi, 29 July 1953, 186 UNTS
190 (1954) .) There are many such treaties, sorne providing for referral
of disputes to this Court. Nevertheless, no disputes regarding such
clauses have previously come here.
Whether found in preambles or introductory articles, such texts are
understood to set out goals sought by the parties. They are part of the
context within which other provisions must be construed and applied.
However, such language standing alone is not a sufficient basis for
concrete claims giving rise to the jurisdiction of this Court.
Article I contains no standard. This is because the general,
aspirational language of Article I does not contain standards by which a
party's actions can be measured. We agree in this respect with Iran's
Memorial (at p. 76, para. 3.24) which notes that "Article I does not give
specifie details asto exactly what conduct is prescribed or forbidden."
However, we do not agree that this lack of precision in Article I can be
overcome by reading into the Article other large bodies of law over which
this Court lacks jurisdiction.
Rather, we agree with this Court's analysis in 1980 of this very
treaty. It is this treaty's specifie articles that create standards by
which compliance with it can be measured. It is these specifie articles
that give enforceable legal content to goals such as "friendship". As
this Court said in its Judgment in the case of the United States
Diplomatie and Consular Staff in Tehran, the very purpose of such a
treaty
"is to promote friendly relations between the two counties
concerned and between their two peoples, more especially by
mutual undertakings to ensure the protection and security of
CR 96/1.3 - 1.6 -
their nationals in each others territory" (United States
Diplomatie and Consular Staff in Tehran, Judgment, I.C.J.
Reports 1980, p. 28, para.·S4; emphasis added)).
This Court employed comparable reasoning regarding the FCN treaty
between the United States and Nicaragua. Nicaragua v. United States of
America has been noted by Professer Lowenfeld and will be considered
further this morning by Dr. Murphy. For our purposes now, it is enough
to recall that the matters then before the Court included Nicaragua's
claim that the United States had acted contrary to the abject and purpose
of the US-Nicaragua FCN Treaty. Now Iran contends that it is not making
such an abject and purpose claim here, presumably because it knows the
claim was rejected by the Court in the Nicaragua case. It is in fact
effectively making such an argument in a different guise but in any case
in determining the "abject and purpose" of the treaty, the Court said
that it lay in "the effective implementation of friendship in the
specifie fields provided for in the Treaty, not friendship in a vague,
general sense" (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, Judg.ment,
I.C.J. Reports 1986, p. 1.37; emphasis added). The same approach should
again be applied in construing this provision. Its content is to be
found in the specifie undertakings contained in the treaty, not in bread
notions external to it.
Thus, as this Court has recognized, treaties like this - indeed this
very treaty - promote friendly relations through specifie commitments
safeguarding foreign nationals and their property and not through vague
expressions of hopes for the future. It is through compliance with such
specifie provisions that compliance with Article I must be determined.
CR 96/1.3 - 17 -
The role of Article I. We do not suggest that Article I has no role
or that the Court must disregard it. Clearly, it has a role. It is part
of the overall framework of the treaty. It sets goals which should
illurninate the construction and application of ether detailed provisions.
However, the Article does not entail a legally binding requirement,
judicially enforceable by this Court, and ultirnately enforceable through
recourse to the Security Council under the Charter, that there shall be
"peace and sincere friendship" between the United States and Iran. As
Professer Lowenfeld indicated, such an interpretation would vastly expand
this treaty, and the scope of potential disputes thereunder, in ways the
Parties did not intend.
This view of the character of Article I is reinforced by the
practice of the parties under the treaty, and by the general practice of
States.
The practice of the Parties. Certainly, the practice and relations
of the United States and the Islamic Republic of Iran in the years since
1979 do not reveal any mutual understanding that Article I creates
legally binding rules directing their relationship. It is an unfortunate
but compelling truth that relations between these Parties since 1979 have
been rnarked by many periods of tension and even hostility. However, it
was not until the Islamic Republic of Iran decided to file this case that
it accused the United States of violating Article I. Iran did not invoke
Article I in its clairns against the United States in the case concerning
the Aerial Incident of 3 July 1988, Iran's discussion of its treaty
clairns in its Memorial in that case cites several provisions, but not
Article I (Aerial Incident of 3 July 1988, Memorial of the Islamic
Republic of Iran, Vol. I, 24 July 1990, pp. 137-138 and 179-184}. The
CR 96/13 - 18 -
United States, for its part, did not invoke Article I in its arguments in
the case concerning United States Diplomatie and Consular Staff in
Tehran, instead presenting claims based on ether articles of the Treaty
(United States Diplomatie and Consular Staff in Tehran, Memorial of the
Government of the United States of America, January 1980, p. 41). Thus,
in their practice, the Parties have not previously referred tc Article I
as a legal standard controlling their relationship.
State praetiee generally. The general practice of States also
reinforces the conclusion that provisions like Article I do not give rise
tc separately enforceable legal obligations. A few moments age, I
mentioned sorne of the many treaties that contain such provisions. The
Islamic Republic of Iran has cited no cases in which the Court, or
another international tribunal, has granted relief on the basis of such
provisions or indeed where such relief has been applied for. For our
part, we have unearthed no clear State practice suggesting that such
provisions are viewed by States as giving rise tc specifie legal
obligations enforceable by an international tribunal.
Indeed, the practice of States, and of these very Parties shows
little consistency regarding the inclusion of such provisions. This
suggests tc us that such provisions may be included in particular
treaties, or not included, for reasons having tc do more with style or
with national practice than with law. Thus, Article I of Iran•s 1968
Treaty with Malaysia provides that "there shall be perpetuai peace and
everlasting amity between the two peoples" (Treaty of Friendship between
Iran and Malaysia, signed at Kuala Lumpur on 15 January 1968, 787 u.NTS
172 (1971)). By contrast, Iran's treaty with France- a relationship that
is surely of no less importance tc the parties - contains no such
CR 96/13 - 19 -
language (Convention on establishment and navigation, signed at Tehran on
24 June 1964, 747 UNTS 179 (1970)).
As the Islamic Republic of Iran rightly points out in its Memorial
(p. 77, paras. 3.27 et seq.), there is no particular pattern regarding
such clauses in US practice. The goal of friendly and peaceful relations
is regularly mentioned in the preambles of post-World War II US FCN
treaties. However, as Iran's Memorial rightly notes, it is cited in the
initial article of only four such treaties - this one and the US treaties
with China, Nicaragua, Muscat and Oman. Thus, the goal appears in the
first article in a handful of treaties, but remains in the preambles of
far more. These include treaties with countries with which the United
States has extensive and amicable relations - France, Italy, Japan,
Gerrnany, to name a few. This suggests that the negotiators of these
texts did not see the difference in the location of this wording as
materially affecting the overall character of obligations under the
Treaty. Certainly this view is reflected in the comments of the US State
Department officer who explained the treaty to the Senate Foreign
Relations Committee, as contained in Iran's Exhibit 98.
Our written preliminary objection explains further how US officials
at the time this treaty was ratified did not believe that Article I made
any substantive change from normal US FCN treaty texts. This discussion
is to be found in the US preliminary objection at page 44. The Islamic
Republic of Iran disputes the relevance of the domestic US materials
cited. It is for the Court to decide whether such materials assist it,
as indications of the Parties' practice under the Treaty or otherwise.
However, I think the value of such materials is clearly indicated by the
fact that bath Parties here have relied upon them. In this regard, I
CR 96/13 - 20 -
refer the Court to such materials as Exhibit 98 to Iran's Memorial and to
Exhibit 10 to Iran's Observations and Submissions.
Article I does not sweep in the law of friendly relations. In light
of the considerations I have advanced, the Court should reject the
contention of the Islamic Republic of Iran that Article I should be
construed in a sweeping way to make it into a sort of universal
obligation. In its Observations and Submissions (pp. 46-47), Iran makes
the remarkable suggestion that Article I incorporates into the treaty,
and thus brings into its dispute settlement clause, "the principles of
general international law concerning peaceful and friendly relations
between States".
This Treaty did no such thing. Its words cannet be read in this
expanded or artificial way. Neither the words used nor any accepted
guide to interpretation suggests that the Parties agreed to have
virtually all disputes between them subject to this Court's jurisdiction.
Had the Parties intended this remarkable result, they surely would have
said so explicitly. They did not. The Court should not construe such
language in a way that will discourage States from concluding future
agreements that express the noble aspiration for peaceful relations.
Article 31 (3) of the Vienna Convention. I am nearing the end of my
discussion of Article I. I appreciate the Court's continued indulgence.
However, I must here add a brief word about Article 31 (3) of the Vienna
Convention on the Law of Treaties, because the Islamic Republic of Iran
has made much of it.
Article 31 (3) does not support the wish to read Article I and the
other articles of the 1955 Treaty in the expansive ways urged by Iran.
As it applies her, Article 31 (3) is a limiting principle, not a license
CR 96/13 - 21 -
to expand the text of a given treaty. As the Court well knows, Article
31 provides that in interpreting treaties, "there shall be taken into
account, together with the context ... any relevant rules of
international law applicable in the relations between the parties"
(emphasis added) .
The effect of this is far narrower than Iran contends. The word
"relevant" is key here. This word performs several functions in the
text, so sorne commentary on it concentrates on its application in
intertemporal situations (Sir Ian Sinclair, The Vienna Convention on the
Law of Treaties, Second ed. 1984, pp. 138 et seq.). However, the term
also makes clear that there must be a sufficient connection between the
treaty being construed and other treaties which are being looked at to
aid in interpretation. As one commentator described it, "relevant" means
that "the rules must . concern the subject matter in question"
(Mark Villiger, Customary International Law and Treaties, 1985, at 268).
The subject-matter of the 1955 Treaty is investment and similar matters,
not the use of force or "friendship" in sorne broad sense.
In the interest of timing, Mr. President, I will omit part of my
argument but move on to what seems to me the fundamental point with
respect to Article 31 (3), and that is this: the Court here lacks
jurisdiction over the rules of international law that do apply to these
incidents. Namely the law governing armed conflict on the use of force.
Article 31 (3) of the Vienna Convention is an interpretative principle,
not a jurisdiction conferring one. Article 31 (3) does not give a
licence to transplant into general phrases of this treaty whole bodies of
unrelated international law. It does not create legal obligations that
are fundamentally different from those contained in the treaty being
CR 96/13 - 22 -
construed. It does not give rise to jurisdiction that has not been
agreed by the Parties.
Mr. President, Members of the Court, this concludes my discussion of
Article I. I have dealt with it at sorne length because the Islamic
Republic of Iran's approach to this Article is characteristic of all its
treaty claims. Article I has been treated as though it is made of rubber
which can be stretched to cover and confer jurisdiction over a wide
universe of claims. This simply does not work. Article I and the
jurisdiction of this Court cannet be stretched in this way.
B. Article IV (l)
~- Introduction. The Islamic Republic of Iran next seeks to rely on
Article IV (1) of the Treaty. This provision was not referred to in
Iran's Application but was added in the Memorial.
In invoking Article IV {1) Iran takes an article carefully phrased
to limit certain kinds of actions by one party essentially affecting
businesses and investments of the ether party's nationals and again seeks
to stretch and reshape it to cover totally different circumstances. As
with Article I the attempt does not work.
Article IV (1) contains several detailed obligations. It requires
that each party:
"accord fair and equitable treatment to nationals and companies
of the ether High Contracting Party, and to their property and
enterprises; shall refrain from applying unreasonable
discriminatory measures that would impair their legally
acquired rights and interests; and shall assure that their
lawful contractual rights are afforded effective means of
enforcement, in conformity with applicable laws".
Article IV is at the heart of this Treaty's complex system to
protect investments by one party's nationals and the jurisdiction of the
CR 96/13 - 23 -
other. It contains several of the most important provisions protecting
such investments. Article IV (2) regarding full compensation for its
expropriation has been important in the Iran-US Claims Tribunal.
However, the Islamic Republic of Iran does not rely on Article IV (2) or
on any of Article IV's other powerful rules.
Why is only Article I cited? We do not know. We can speculate that
the other parts of Article I are not mentioned because the geographie
field of application of each is expressly limited to actions by a party
within its territory and clearly the actions of the United States that
Iran complains of here did not take place within the territory of the
United States.
Thus, Iran is left with only Article IV (1), apparently believing
that it has global application. For the reasons I shall show, this
interpretation does not stand. This provision does not operate
independently of the rest of the Treaty nor does it regulate the conduct
of the two Governments every place in the world. Moreover, it cannet
sensibly be applied to the matters involving the use of force placed at
issue here by the Islamic Republic of Iran.
2. Article IV (l) regulates activities of an inter.nal
administrative, regulatory and legal character, not use of force
The first notable feature of Article IV (1) is the specifie and
limited nature of the Government activity that it affects. This Article
does not address every form of activity by a party wherever it occurs.
Instead the Article deals with activities taken by parties internally in
the context of their domestic legal administrative or regulatory systems.
The Article deals with internal regulatory measures or similar government
action all taken in the context of a national legal system.
CR 96/13 - 24 -
Now, several features of the text underscore this point. For
example, the Article points to certain "measures" that impair the
lawfully implied interests of foreign investors and businesses. The term
used is "measures". This word does not describe every form of government
activity. Rather it is used to describe action taken by a State in a
domestic legal administrative or regulatory context.
Article IV (1) also requires that foreign investors have the right
to enforce their contracts. Again, this relates to aspects of the
domestic legal system. The Article also requires "fair and equitable
treatment". This requirement operates coherently only in the context of
the domestic, administrative or regulatory measures of a party.
All of the ether provisions of Article IV, with which Article IV (1)
must be read in harmony are similar. Article IV (2) speaks of "constant
protection and security" for investments. Article IV (3) protects
foreign businesses' premises from improper inspection or disturbance.
Article IV (4) is a general guarantee of foreign investors' rights to
establish and carry on their businesses.
Each of these parts of Article IV clearly operates only in the
context of domestic legal administrative or regulatory activities of a
party within the framework of its internal legal system.
Thus, Article IV (1) does not affect every form of government
activity. It deals only with those activities that a party carries on
within its internal legal administrative regulatory régimes. This
article does not address ether kinds of government action. it does not
regulate actions taken internationally by a party in conducting its
foreign relations. It certainly has no relevance to actions involving
CR 96/13 - 25 -
the use of force. Article IV (l) does not apply to the events complained
of by the Islamic Republic of Iran.
3. Article IV (1) cannot be applied to ar.med conrlict
There is a second fundamental problem with the Islamic Republic of
Iran's attempt to apply Article IV to the circumstances of this case.
The obligations it imposes cannat coherently be applied to situations
involving armed conflict like those complained of here. Iran's claim
apparently involves two legal concepts in the Article: "fair and
equitable treatment" and "unreasonable and discriminatory measures".
These concepts cannat be applied in an intelligible way to these disputes
regarding the legality of the use of force.
If uses of force in particular situations are consistent with the
Charter and with the rules of armed conflict - as we would show should
this matter proceed to the merits - it is meaningless to claim that use
of force must also be "fair and equitable". And what can it possibly
mean that the lawful use of force must not be "discriminatory" in the
sense of this Treaty? These concepts were clearly intended to affect
government regulation of personal and property rights, and not to
regulate the use of force in armed conflict. They cannat sensibly be
applied to the events that are at the heart of Iran's claims here.
4. Article IV (1) is an additional sareguard for business and
investments otberwise covered by the Treaty
Third, the Islamic Republic of Iran's efforts to apply this article
in this case must fail because the article does not apply to the
particular events - actions by the United States affecting Iranian
CR 96/13 - 26 -
installations presumably located on Iran's continental shelf- involved
in this case.
Article IV (l) applies only to those businesses or investments that
otherwise fall within the scope of the treaty. These events, involving
Iran's platforms located "at home" on the continental shelf of Iran,
simply do not fit within the bilateral structure to protect international
business and investment created by the l955 Treaty.
As I have noted, Article IV (l) is just one part of an integrated
structure for the protection of business and investment in the territory
of one party by the nationals and companies of the other. Article IV
(l), as part of this inter-connected structure, is not free-standing, it
does not operate independently of the rest of the treaty, it cannet be
construed without reference to the treaty's other provisions.
The Articles of the Treaty that lie on either side of Article IV
show how this whole system revolves around the protection of businesses
and investments of one party's nationals and companies in the territory
of the other party. Article II allows nationals of one party to come to
the territory of the other to carry on trade. Article III gives those
nationals the right to go to local courts in the ether country to enforce
their rights. Article V allows them to lease real estate and to acquire
and use other kinds of property there. Article VI bars discriminatory
taxation of those foreign nationals and companies in the other
jurisdiction. Other articles round out this structure of the rights of
nationals and companies of one party to do business in the territory of
the ether.
Article IV (l) is simply an additional safeguard designed to
supplement this system of specifie protections for foreign investments
CR 96/l3 - 27 -
and overseas businesses. A study of the standard form FCN treaty,
prepared by Mr. Charles Sullivan, the State Department negotiator of many
of these treaties, explains that this language was conceived as an
additional layer of protection for businesses and investments otherwise
covered by the Treaty. Mr. Sullivan explained that the general
requirement that each party accord "equitable treatment" provides a basis
for making representations against actions detrimental to United States
interests that may not be covered by any specifie rule in the treaty, as
for example "a measure that is superficially non discriminatory but is so
framed asto harm only United States' interests" (Charles Sullivan,
Department of State, Treaty of Friendship, Commerce and Navigation,
Standard Draft (Analysis and Background), p. 67).
Thus, in our view, Article IV (1) only addresses businesses or
investments that otherwise fall within the system of protection created
by the 1955 Treaty. These events involving Iran's platforms on Iran's
continental shelf do not fall within the protection of this system.
5. The language of Article IV (1) confirms its limited territorial
application
I will conclude this discussion by noting sorne features of the text
of Article IV (1) that I think under-score its limited territorial
application.
Thus, its first clause requires each party to accord "fair and
equitable treatment" to nationals and enterprises of the other party.
This general obligation seems most logical in a territorial sense.
Iran's contrary suggestion notwithstanding, the parties surely did not
intend that they would treat the enterprises of the other party
"equitably" in relation to actions outside their borders. They could not
CR 96/13 - 28 -
have agreed tc include the nationals and companies of the ether country
in measures they take tc promote trade with third countries. Similarly,
they surely are not required tc protect the other's nationals and
companies in bilateral investment treaties with third countries.
The second clause of Article IV (1) is similar. It requires that
the parties avoid "unreasonable or discriminatory measures" that might
impair foreign investors' property rights. This obligation toc operates
in a limited territory field; the Encyclopedia of Public International
Law describes the typical clause of this kind as one which "forbids
either party tc take any unreasonable or discriminatory measures that
would impair the legally acquired rights or interests within its
territory or nationals and companies of the ether party" (D. Blumenwitz,
Treaties of Friendship, Commerce and Navigation, 7 Encyclopedia of Public
International Law (R. Bernhart ed.), 480, 486; emphasis added).
The limited territorial scope or Article IV (l) is perhaps most
apparent in the Article's final clause. It requires the parties to
ensure that foreign investors' lawful contractual rights "are afforded
effective means of enforcement, in conformity with applicable laws".
This can only be understood tc govern the conduct of a party within its
own territory. Neither party could ensure the enforcement of contractual
rights within the territories of ether countries. Neither party could
assure the world-wide availability of means for the other's nationals tc
enforce their contracts. This obligation can only be read in a
territorial sense. Each party agreed tc provide for enforcement of the
other's nationals contract rights within its territory- not every place
in the world.
CR 96/13 - 29 -
Thus, the specifie obligations contained in Article IV (l) can
sensibly operate only within the territory of the party affected by the
article. Article IV (1) is a carefully worded text that promotes and
protects investments and businesses conducted by nationals and companies
of one party in the territory of the ether, not every place in the world.
For all these reasons, Article IV (l) provides no basis for the
Court's jurisdiction here.
C. Article X (1)
Finally, in scouring the FCN Treaty seeking possible bases for its
claims, the Islamic Republic of Iran identifies Article X (l) . This is a
seventeen word paragraph introducing ether paragraphs regulating maritime
matters. It reads: "Between the territories of the two High Contracting
Parties there shall be freedom of commerce and navigation."
As with the other two articles invoked by Iran, Article X (1)
provides no logical basis to bring Iran's claims within the jurisdiction
of this Court. This article addresses maritime commerce between the two
parties. It lends no plausible support to Iran's very different claims
involving the legality of the use of force. Indeed, it seems to us quite
remarkable that, in the circumstances here, Iran attempts to base its
claim on a provision intended to promote the freedom and safety of
maritime commerce. Article X (l) must be read in light of the ether
provisions of Article X. Read in this way, it is apparent that it lays
dawn a general goal of peaceful and efficient maritime commerce between
the parties, to be implemented through ether detailed provisions in the
Article.
CR 96/13 - 30 -
Writers on these treaties make clear that this provision and similar
provisions in ether treaties like it, refer especially to maritime
matters. In his study of the Standard Draft of the Treaty of Friendship,
Commerce and Navigation, Charles Sullivan, who was one of the negotiators
of these treaties, writes that the counterpart to Article X (1) in the
standard draft is "considered as having special relevance to seaborne
traffic" (Charles Sullivan, Department of State, Treaty of Friendship,
Commerce and Navigation. Standard Draft (Analysis and Background),
pp. 286-87).
Other commentators agree that the purpose of the navigation article
in such treaties is to regulate shipping, not matters of commerce
generally. Treaty negotiator Herman Walker, described the standard
article on these matters as "a navigation article" that:
"reaffirms a liberal regime of treatment to be applied to
international shipping. The rules set forth reflect the
practices which have historically been developed by leading
maritime nations ... " (Herman Walker, The Post-War Commercial
Treaty program of United States, LXXIX Political Science
Quarterly 57, 73.)
Piper's study of the navigation provisions in US commercial
treaties is similar. His analysis of the standard shipping provisions in
post-war FCN treaties, like this one, shows that the purpose of articles
like Article X, is to regulate shipping, not commerce generally (Don c.
Piper, "Navigation Provisions in United States Commercial Treaties", 11
American Journal of Comparative Law 184 (1962)).
In Article X {1) , the parties did not agree to protect commerce in
the abstract sense of all economie activity. Rather through the totality
of Article X, they agreed to take specified practical steps in operating
their ports and in regulating navigation. These are spelled out in the
CR 96/13 - 31 -
five specifie paragraphs, in Article X, which give concrete meaning to
the general goal set by Article X (1) . None of these specifie paragraphs
has anything to do with Iran's claims here.
Moreover, as with the other articles Iran invokes, this introductory
language has an important territorial limitation. It does not apply
every place in the world. Rather, each element of Article X deals with
actions taken by each party within its jurisdiction to promote or
facilitate maritime commerce between them.
Now, the Islamic Republic of Iran seeks (Observations and
Submissions, pp. 50-51) to stretch Article X (1) into a blanket guarantee
of free commerce "independent of navigation". As with the similar
efforts to stretch Articles I and IV (1), this cannat be correct.
Article I promotes and regulates maritime commerce in specifie ways,
through specifie and carefully worded undertakings. Article X (1) 's
brief reference to freedom of commerce and navigation cannat reasonably
be stretched to become a guarantee of unimpeded commerce in every
respect. It certainly cannat be stretched to encompass facilities for
the exploitation of natural resources simply on the assumption that those
resources might someday become part of commerce between the parties.
The Court should not accept Iran's novel interpretation of the
article, which, to our knowledge, has not previously been asserted
between the Parties. Certainly, the practice of the Parties since 1979
shows that they have not construed the Treaty in this way. The Court
should not give credence to this opportunistic new reading.
Now, in this regard, it is perhaps worth noting that the Islamic
Republic of Iran did not find it necessary to refer at all to this
Article in its Memorial when it sought to defend the legality of Iran's
CR 96/D - 32 -
military actions impairing the freedom of navigation in the Gulf.
Instead, Iran•s Memorial (Memorial p. 25, para. 1.54) argued that "in the
circumstances the actions of its naval forces in the Persian Gulf were
fully justified by the laws of neutrality". This statement correctly
identifies, part at least, of the body of international law that must be
applied in assessing Iran's military actions - and the military responses
of the United States. These matters are regulated by the law of
neutrality and by the law of armed conflict, and not by this or any ether
article of the 1955 Treaty. They are not within the jurisdiction of this
Court.
I will conclude this part of my argument with a final point that
follows closely from what I have just said. As with the previous
article, Article X (1) simply cannet intelligibly be applied in
situations regulated by the law of armed conflict. The essence of
Article X is the regulation of peaceful maritime commerce between the
parties. It does not replace the law of armed conflict where that law
applies.
D. Article XX (l)(d)
Mr. President, Members of the Court, I have imposed upon the Court
for a long time, and I am grateful for your continued attention. I will
conclude with a brief comment regarding the Islamic Republic of Iran•s
detailed arguments (Observations and Submissions at 51-59) about Article
XX (1) (d), which excludes certain matters from the operation of the
Treaty. New here, confusion seems to have arisen in the exchange of
written pleadings as to the issues now actually before the Court for
decision. Today, the core question is the Court's jurisdiction. In this
CR 96/13 - 33 -
connection, the interpretation and application of Article XX (1) (d) are
not now at issue.
Article XX (1) (d) requires that the 1955 Treaty
"shall not preclude the application of measures necessary
to fulfil the obligations of a High Contracting Party for the
maintenance or restoration of international peace and security
or necessary to protect its essential security interests".
Our preliminary objection suggested that, as a jurisdictional
matter, this,provision helped to show that Articles I, IV and X, those
invoked by Iran, were not designed or intended to govern Iran's claims
regarding the use of force. This is because Article XX (1) (d) manifested
the parties' intent to keep such matters outside the scope of the Treaty.
We believe that jurisdictional point remains valid. However, the Islamic
Republic of Iran's Observations and Submissions responded to it with
several pages of animated arguments essentially addressing how Article XX
(1) (d) should be interpreted and applied to the merits of this dispute.
With respect, I think this is not the point on which to join issue
on these particular arguments. We do not now, where the issue is the
Court's lack of jurisdiction, raise Article XX (1) (d) as a defence
against the merits of Iran's claims. Now, the significance of Article XX
(1) (d) is not at the heart of our position concerning this Court's lack
of jurisdiction. It should not be allowed to cloud the issues that are
before the Court. Thus, I suggest that it is not necessary for the Court
to address the specifie arguments regarding the construction and
application of Article XX (1) (d), unless there should be a future merits
phase.
Mr. President, I am at the end. I am grateful for the Court's close
attention as I have reviewed the history and structure of this treaty to
CR 96/13 - 34 -
show that it does not regulate the matters placed at issue by the Islamic
Republic of Iran. I have also addressed each of the three specifie
articles relied upon by Iran. In each case I have shawn that the cited
provision cannat reasonably be interpreted to sustain the claims
submitted. Article I's affirmation that there shall be peace and
friendship between the parties cannat be stretched to bring into the
treaty, and into the jurisdiction of this Court, all of the law of war
and peace. Article IV (1) has no relevance to the use of force, nor does
it caver actions and installations that are not otherwise within the
scheme of the 1955 Treaty and finally, Article X (1) 's undertakings
regarding maritime commerce are likewise not relevant to Iran's actual
claims. None of these claims has any reasonable connection to the treaty
provisions on which they are supposedly based. This Court therefore
lacks jurisdiction over them.
This concludes my presentation. Now, or after the Court's morning
recess, I would invite the Court to hear my colleague, Dr. Sean Murphy,
Counsellor for Legal Affairs of the United States Embassy at The Hague.
I thank the Court.
The PRESIDENT: Thank you very much, Mr. Crook. I now give the floor
to Dr. Sean Murphy.
Mr. MURPHY: Mr. President, Members of the Court, it is a great
privilege to appear once again before this Court.
As Professer Lowenfeld stated yesterday, the United States does not
believe that the case concerning Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), I.C.J.
Reports 1986, p. 4 (27 June) provides the appropriate guidance for the
CR 96/13 - 35 -
disposition of the case before the Court today. However, in view of
Iran's repeated references to the Nicaragua case in its effort to
establish jurisdiction of the Court in this case (Iran Observations and
Submissions on the US preliminary objection, 1 July, 1994, paras. 2.22
note 66, 2.23 note 68, 2.24 note 70, 3.05, 3.18-20, 3.39, 3.49-51, 3.55,
3.57, 3.60-64, 4.03, 4.24, 4.28), it is important to address squarely the
relevance of the Nicaragua case to the case before you today.
In reading the pleadings of the Nicaragua case, it is readily
apparent that Nicaragua's claim under the bilateral FCN Treaty was
something of an afterthought. Indeed, when Nicaragua filed its
Application, it did not even allege that the United States had violated
the FCN Treaty, nor did it raise such a claim throughout the interim
measures phase during which questions of jurisdiction were strenuously
argued. Rather, Nicaragua invoked exclusively the Court's jurisdiction
under Article 36 (2) , claiming that the United States had violated
certain treaties, notably the charters of the United Nations and of the
Organization of American States, and further had violated customary rules
of international law.
Only in its Memorial on jurisdiction did Nicaragua first allege
violations of the FCN Treaty, even then devoting just a few pages to the
issue. Similarly, the United States only briefly responded to those
allegations in its lengthy Counter-Memorial. The lack of attention to
the FCN Treaty during the jurisdiction phase was particularly apparent
during the oral proceedings. Nicaragua did not refute any of the
arguments made by the United States in its Counter-Memorial concerning
the FCN Treaty. In fact, Nicaragua•s only mention of the FCN Treaty
during the oral proceedings occurred during the closing statement of the
CR 96/13 - 36 -
Nicaraguan Agent, who simply stated that the FCN Treaty constituted a
subsidiary basis for the Court's jurisdiction (Nicaragua v. United States
of America, oral proceedings on jurisdiction, 10 October 1984, CR 84/15
at 74). Given Nicaragua's lack of attention to the FCN Treaty, the
United States, in turn, did not mention the FCN Treaty at all in its oral
argument, nor did the Court ask any questions of the parties regarding
the FCN Treaty.
So, I think it fair to say that the issues posed by the FCN Treaty
were not fully addressed by the parties at the jurisdictional phase due
to their attention to other issues. Only a few pages of the Court's
decision on jurisdiction address the FCN Treaty (I.C.J. Reports 1984,
paras. 77-83) and those few pages do not address certain key issues.
Sorne of these issues were addressed by the Court in its decision on the
merits, but at that phase the Court only had the benefit of Nicaragua's
views when reaching its decision.
What were the acts of the United States which Nicaragua claimed
violated the FCN Treaty? While Nicaragua allege that all the US actions
complained of in its Application violated the FCN Treaty, including the
alleged mining of Nicaraguan ports in early 1984 and certain attacks on
Nicaraguan ports and port installations in late 1983 and 1984. Of
particular relevance to this case were Nicaragua's allegations that the
United States twice attacked an underwater oil pipeline and two oil
storage facilities associated with its ports (I.C.J. Report 1986, paras.
75, 81 and 85).
The Court passed judgment on three of Nicaragua's claims involving
the treaty - the claim that these acts violated the object and purpose of
the FCN Treaty and claims that they violated two specifie provisions of
CR 96/13 - 37 -
the FCN Treaty - Article I (concerning equitable treatment of nationals)
and Article XIX (concerning freedom of commerce and navigation) .
It is our contention that the Court's disposition of Nicaragua's
claims does not support The Islamic Republic of Iran's position in this
case. To the contrary, as I will show, the Court's disposition supports
the United States position. My presentation will proceed as follows.
First, I will explain why the Nicaragua case does not support a finding
of jurisdiction over the individual articles of the 1955 Treaty relied
upon by Iran in this case. Second, I will explain why the Court's
overall reasoning in the Nicaragua case supports the thrust of the United
States' presentation in this case and finally I will explain why the
Nicaragua case does not support the notion that these issues should be
held over to the merits.
I. THE ARTICLES OF THE 1955 Treaty INVOKEDBY THE
ISLAMIC REPUBLIC OF IRAN ARE NOT SUPPORTEDBY THE
NICARAGUACOURT'S REASONINGWITH RESPECT
TO THEIR COUNTERPARTS
So, let me begin by briefly explaining why the Nicaragua decision
provides no support for a finding of jurisdiction concerning the
individual articles of the 1955 Treaty pled by Iran in this case.
Friendly Relations
The first article of the 1955 Treaty that Iran claims the United
States violated is Article I, which, as Mr. Crook bas discussed, exhorts
the parties to maintain friendly relations. The Nicaraguan case does
not provide any support for a finding of jurisdiction in this case with
respect to an argument based on "friendly relations".
CR 96/13 - 38 -
In the Nicaragua case, the Court decided that it did not have
jurisdiction under the FCN Treaty to address a general claim that the
United States was acting in an unfriendly manner - a bread claim that
seems, in many respects, similar to Iran's sweeping claim in this case.
In its memorial on jurisdiction, Nicaragua claimed that the United
States' actions were contrary to "the entire spirit of the Treaty"
(Nicaragua Memorial on jurisdiction, 30 June 1984, para. 175). At the
merits phase, Nicaragua recast this general claim as a claim that the
United States had defeated the abject and purpose of the Treaty
(Nicaragua Memorial on merits, 30 April 1985, paras. 410-413). The Court
was quite clear, however, that its jurisdiction to address that claim did
not arise under the FCN Treaty. Rather, the Court reasoned that a
State's obligation not to deprive a treaty of its abject and purpose was
an obligation arising under customary international law, separate of the
treaty (I.C.J. Reports 1986, paras. 270-71).
While the Islamic Republic of Iran concedes that Nicaragua's
generalized claim was outside the jurisdictional clause of the FCN
Treaty, it tries to argue that the presence of Article I in the 1955
Treaty makes this a different case than the Nicaragua case (Iran
Observations and Submissions on the United States preliminary objection,
1 July 1994, para. 3.20). As Mr. Crook has shawn, however, Article I
cannat be regarded as setting forth a discrete legal obligation upon
which a claim may be brought. In the context of the Nicaragua case, two
further points may be made. First, Article I in the 1955 Treaty cannat
be equated with an obligation arising under customary international law
not to defeat the "abject and purpose" of the 1955 Treaty. Article I of
the 1955 Treaty is quite different than any such obligation, as the
CR 96/13 - 39 -
Islamic Republic of Iran itself appears to concede (Iran Memorial, 8 June
~993, para. 3.09). Article I speaks to the desire of general friendship
between Iran and the United States, whereas an obligation not to defeat
the "abject and purpose" of a treaty, as the Court stated in Nicaragua,
speaks to "the effective implementation of friendship in the specifie
fields provided for in the Treaty, not friendship in the vague general
sense" (I.C.J. Reports 1986, para. 273). Second, in the Nicaragua case,
the Court speculated that two parties might write a sweeping treaty
provision by which each party "binds itself, for so long as the Treaty is
in force, to abstain from any act toward the ether party which could be
classified as an unfriendly act, even if such act is not in itself the
breach of an international obligation" (I.C.J. Reports 1986, para. 274).
That language is not the type of language present in Article I of the
~955 Treaty, nor is there any evidence in the travaux préparatoires or in
the subsequent conduct of the Parties that supports such a reading of
Article I. In short, Article I of the ~955 Treaty fits neither the
Nicaragua Court's conception of an article designed to create a legal
obligation to refrain from all actions of any kind, even if unlawful, nor
the Court's conception of abject and purpose. So, in our view the
Nicaragua case provides no support for Iran's claim based on Article I of
the ~955 Treaty.
Equitable Treatment
The next article of the ~955 Treaty that Iran claims the United
States has violated is Article IV (~), which among ether matters
addresses equitable treatment by one party of the nationals and companies
of the ether party. The equitable treatment provision of Article IV (~)
CR 96/13 - 40 -
had a counterpart in the Nicaragua case - Article I of the FCN Treaty -
but, again, it is clear that the Court's disposition of Nicaragua's claim
provides no support for Iran in this case.
In its pleadings, Nicaragua claimed that a wide array of actions
violated Article I of the FCN Treaty, including certain attacks on oil
installations that were servicing Nicaraguan ports (Memorial of Nicaragua
on questions of jurisdiction, June 30 1984, para. 174; Nicaragua v.
United States of America oral proceedings on the merits, 20 September
1985, CR 85/27, pp. 6-8). In the course of its decision, the Court
found that sorne of those actions, including the attacks on the oil
installations, were in fact attributable to the United States. The
Court, however, did not find that those actions fell within the scope of
Article Ion "equitable treatment". The Court analyzed the "equitable
treatment" provision only with respect to a narrower category of acts
specifically directed against Nicaraguan citizens, such as kidnapping
(I.C.J. Reports ~986, para. 277). Evidently the Court did not believe
that the reguirement of "equitable treatment" had anything to do with
naval attacks on ports and oil installations at those ports. By the same
token, the requirement of equitable treatment has nothing to do with the
attacks at issue in this case.
Now, as I noted, the Court in the Nicaragua case did regard a narrow
class of acts specifically directed against Nicaraguan nationals as
potentially relevant under the treaty. The Court rejected Nicaragua's
claims in that respect because it found that this narrow class of acts
could not be imputed to the US Government. In doing so, the Court noted
that even if such actions could be imputed to the US Government, there
would be a further issue of whether a provision for "equitable treatrnent"
CR 96/13 - 41 -
can be read as addressing actions by the US Government against
Nicaraguans in Nicaragua. The Court did not need to address that issue,
but it suggested that, regardless of whether Nicaragua on the merits
could prove that the US Government committed such actions, there was a
threshold legal issue as to whether the "equitable treatment" provision
covered such actions at all. As Mr. Crook has shawn, Article I (1) does
not caver such actions, and therefore the Islamic Republic of Iran's
claims with respect to this article have no reasonable connection.
Freedom of Commerce and Navigation
The final article of the 1955 Treaty that Iran claims the United
States violated is Article X (1) concerning the freedom of commerce and
navigation. Iran has pointed out that, in the Nicaragua case, the Court
accepted Nicaragua's allegations that certain US actions, including
attacks on oil pipelines and oil storage installations, had violated the
analogous article of the FCN Treaty, Article XIX (I.C.J. Reports 1986,
para. 192 (7) and (11)). In the Nicaragua case, however, the facts
underlying the Court's decision regarding freedom of commerce and
navigation were quite different than the facts pled by the Islamic
Republic of Iran here. In determining that the United States had
violated Article XIX of the FCN treaty, the Nicaragua Court directed its
attention solely to actions by the United States that impeded maritime
commerce.
In finding that the mining of Nicaraguan ports violated the freedom
of navigation and commerce guaranteed by Article XIX, the Court stated
that
"where the vessels of one State enjoy a right of access to
ports of another State, if that right of access is hindered by
the laying of mines, this constitutes an infringement of the
CR 96/13 - 42 -
freedom of communications and of maritime commerce" (I.C.J.
Reports 1986, paras. 253 and 278).
Thus, the relevance to Article XIX of the laying of mines was the
impediment they posed to maritime commerce.
Second, the Court also found that the United States had attacked
Nicaragua's ports and port facilities associated with the off-loading of
goods from ships, such as fuel and weapons, and had prevented Nicaraguan
ships from calling at US ports (I.C.J. Reports 1986, para. 292 (7) and
(11)). The Islamic Republic of Iran is correct that these Nicaraguan
port installations included cil pipelines and storage tanks. Those
installations, unlike the Iranian platforms in this case, were not being
used to conduct military operations. Moreover, even on the facts as
stated by Iran in this case, it is clear that the Iranian platforms
should be distinguished from the oil installations in the Nicaragua case.
In that case, the cil pipelines were part of Nicaragua's port facilities
and were used by foreign oil tankers to off-load oil; similarly, the
storage tanks were used to store the off-loaded cil and were part of the
port facilities (see Nicaragua Memorial on the merits, 30 April 1985,
Annex F, pp. 92-93, 169-70 and Annex J, Att. 1, at 3; Nicaragua v. United
States of America, oral proceedings on the merits, 18 September 1985,
CR 85/24, p. 52). Thus, the attacks that served as the basis for the
Court's decision in the Nicaragua case were inextricably related to, and
were specifically directed at, maritime commerce, and not to Nicaragua's
internai exploitation or development of resources.
The Court also found that the US economie embargo violated
Article XIX. In that respect, the Court did not rest its decision on
paragraph 1 of the article, but felt it necessary to quote from paragraph
CR 96/13 - 43 -
3 of the article, which focuses in on an obligation that states that
vessels of one party have the right to bring their cargo to the ports of
the ether party. The Court then quoted a provision within the us
Executive Order establishing the embargo which denied Nicaraguan vessels
this right (I.C.J. Reports 1985, paras. 279). In ether words, the Court
did not accept the view advanced by Nicaragua that the economie embargo
as a whole violated Article XIX of the FCN Treaty (Nicaragua Memorial on
the merits, 30 April 1985, para. 425) but, rather, narrowed the scope of
its finding to actions by the United States that directly affected
maritime commerce.
The Court's emphasis on the issue of maritime commerce is consistent
with scholarly analyses of such provisions (see, e.g., D. Piper,
"Navigation Provisions in United States Commercial Treaties", 11 Am. J.
Comp. L. 184, 189-203 (1962); H. Walker, "The Post-War Commercial Treaty
Program of the United States", 73 Pol. Sei. Q. 57, 73). Further, the
Court's reasoning was no doubt dictated by the structure of Article XIX,
which parallels that of Article X of the 1955 Treaty. In both treaties,
the first paragraph asserts a general principle regarding the freedom of
commerce and navigation between the territories of the parties, but, as
Mr. Crook explained, the article as a whole addresses specifie benefits
to be accorded to maritime commerce.
Now the facts underlying Iran's claim before this Court under the
navigation article is very different in nature. The Islamic Republic of
Iran does not claim that the United States engaged in attacks on Iranian
ports or port facilities, or even Iranian vessels. Even if one accepts
the facts as stated by Iran, those facts involve only attacks on Iranian
platforms engaged in the interna! exploitation of petroleum resources;
CR 96/13 - 44 -
the cil purportedly exploited by these platforrns was pumped by sub-sea
lines to ether facilities in the Islamic Republic of Iran (Iran Memorial,
8 June 1993, paras. 1.11-1.19).
We submit that the Court's reasoning in Nicaragua is most properly
read for jurisdictional purposes as requiring a reasonable connection
between the allegedly unlawful conduct and sorne impediment to maritime
commerce between the territories of the two parties. In this case, Iran
has not shawn any such connection between the attacks on the three cil
platforrns and maritime commerce.
II. THE OVERALLTHRUST OF THE US PRESENTATION IS SUPPORTED
BY THE COURT'S REASONING IN THE NICARAGUACASE
Let me turn now to the second part of my presentation, which
involves relating the Nicaragua case to the overall thrust of the US
presentation in this case. While the Islamic Republic of Iran says its
claims fall within the 1955 Treaty, at their core those claims in fact
relate to the law on the use of arrned force. The claims are governed by
ether sources of law, such as the United Nations Charter, treaties on the
use of armed force, and customary and general rules of international law
relating to jus ad bellum and jus in bello.
In the Nicaragua case, the Court also faced a claim by Nicaragua
that was purportedly associated with the FCN Treaty, but which in fact
derived from customary and general rules of international law. As I
previously noted, Nicaragua initially claimed that various acts by the
United States were unfriendly, which it then recast as a claim that the
United States had underrnined the "abject and purpose" of the FCN Treaty.
Yet the Court found that it had no jurisdiction over this claim pursuant
to the FCN Treaty because such an obligation arase under customary
CR 96/13 - 45 -
international law, independent of the treaty (I.C.J. Reports 1986,
paras. 270-71). It is entirely consistent with the Court's holding in
the Nicaragua case to recognize that Iran's clairns here are for what they
are and to acknowledge that there is no jurisdiction over them under the
compromissory clause of the FCN Treaty. Iran may protest that it only
seeks to bring claims under specifie articles of the 1955 Treaty (Iran
Observations and Submissions on the US preliminary objection, 1 July
1994, para. 3.05), but this is no different than the Government of
Nicaragua asserting that its generalized claim regarding the FCN Treaty
fit within the four corners of that treaty (Nicaragua Memorial on
jurisdiction, 30 June 1984, paras. 164, 175-76). The fact is that in
both cases the claimant is trying to use a commercial treaty to get at
norms that arise elsewhere in international law, norms over which the
Court does not have jurisdiction under that treaty. In the Nicaragua
case, the Court declined to accept that approach; in the current case,
the Court should likewise find that it does not have jurisdiction under
Article 36 (1) .
There is another overall point in the Nicaragua Court's analysis
that is relevant here, although it did not deal specifically with the FCN
Treaty. In the Nicaragua case, the Court found that it had bread
jurisdiction under Article 36 (2) of its Statute deriving from the US
acceptance of compulsory jurisdiction. However, the Court also found
that the so-called "multilateral treaty reservation" to the
United States' acceptance of the Court's compulsory jurisdiction barred
Nicaragua's claims that were based on multilateral treaties. Yet, the
Court found it could nevertheless adjudicate Nicaragua's claims under
Article 36 (2) using the relevant rules of customary international law
CR 96/13 - 46 -
but only because those rules had an independent status and essentially
contained the same content as the relevant multilateral treaties. The
Court stated that the "essential consideration is that bath the
United Nations Charter and customary international law flow from a common
fundamental principle outlawing the use of force in international
relations" (I.C.J. Reports 1986, para. 181).
The relevance of that finding to this case is as follows. In this
case, the Court clearly has no general jurisdiction to adjudicate a claim
by Iran against the United States for violation of the UN Charter, other
treaties governing the use of force, or even customary rules outlawing
the use of force in international relations. The question then becomes
whether, in light of the lack of that general jurisdiction, the Court may
nevertheless exercise jurisdiction over such claims pursuant to a
bilateral treaty conferring specifie jurisdiction over commercial
disputes. In our view, the Nicaragua decision makes clear that such an
exercise of jurisdiction is inappropriate. The commercial treaty does
not flow from the same fundamental principles as the norms on the use of
force. The Islamic Republic of Iran's claims require this Court either
to interpret a body of law that does not contain the relevant principles
of law, or to go outside that body of law over which it has jurisdiction.
As Professer Lowenfeld and Mr. Crook made abundantly clear, the 1955
Treaty does not contain the relevant principles of law to address the
claims brought by Iran in this case. Therefore, the Court, consistent
with its approach in the Nicaragua case, should decline to adjudicate
this matter under the 1955 Treaty.
CR 96/13 - 47 -
III. THE NICARAGUADECISION DOES NOT SUGGEST THAT SUCH
MATTERSSHOULDBE ADDRESSEDAT THE MERITS STAGE
Now, at this stage, one might challenge my analysis by noting that,
even if I am correct, sorne of the points I am arguing from the Nicaragua
case were only decided at the merits phase, and therefore should not be
applied at the jurisdiction phase in this case (see Iran Observations and
Submissions on the US preliminary objection, 1 July 1994, para. 3.39).
I will briefly respond to that challenge. First, as I noted from
the outset, the parties' treatment of the FCN Treaty at the jurisdiction
phase in the Nicaragua case was cursory and no doubt influenced the
Court's decision to hold over certain matters so as to have a fuller
briefing. For instance, at the jurisdiction phase, it was not at all
clear that Nicaragua was alleging that the United States had violated the
FCN Treaty's abject and purpose. This only became clear at the merits
phase and, thus, it is no surprise that only at the merits phase did the
Court find that it had no jurisdiction under the FCN Treaty over that
claim. Moreover, the Court was no doubt also influenced at the
jurisdiction phase by its finding that it had jurisdiction under Article
36 (2) of its Statute over Nicaragua's claims concerning the use of force
as they arase under customary international law. There was little to be
gained by dismissing the FCN claims immediately.
Second, and this is perhaps a more substantive point, because the
Nicaragua Court at the jurisdiction phase found that it had jurisdiction
over Nicaragua's claims concerning the use of force as they arase in
customary international law, the Court was not forced at that phase to
consider the impact of a lack of such jurisdiction on its jurisdiction
under the FCN Treaty. In ether words, the Court was not obliged to
CR 96/13 - 48 -
address the implication of a lack of jurisdiction under Article 36 (2)
over its ability to proceed with the same claims under a much narrower
basis under Article 36 (1) . In this case, our view is that the Court is
obliged to consider the lack of such jurisdiction at this phase in the
proceedings.
IV. CONCLUSION
Allow me to conclude, Mr. President, by reiterating that the
majority opinion in the Nicaragua case contains certain elements that are
of relevance to the case now before the Court. It is our contention that
the overall reasoning of the Court, as well as its analysis of individual
articles in the FCN Treaty, inferentially support the United States'
position in this case. Moreover, in our view the manner in which the
Nicaragua case developed suggests that, after full argument by both sides
on the specifie provisions of a commercial treaty that are at issue, the
Court can and ought to determine at the jurisdiction phase whether -
accepting the facts as pled by the claimant - a claim has been stated
that fits those provisions.
That concludes my presentation, Mr. President. Mr. Chorowsky is the
next speaker who would appear on our behalf to discuss in sorne greater
detail why under the rules and jurisprudence of the Court make it
appropriate for the Court to dismiss Iran's claims at this stage. Thank
you.
The PRESIDENT: Thank you very much Dr. Murphy. The hearings are
suspended for a break of 15 minutes.
The Court adjourned from 11.05 to 11.20 a.m.
CR 96/13 - 49 -
The PRESIDENT: Please be seated. I now give the floor to Mr. Jack
Chorowsky.
Mr. CHOROWSKY: Thank you Mr. President. Mr. President, Members of
the Court, it is my honour and my privilege to appear before you. This
segment of the US presentation will address a number of issues relating
to the interpretation of Article 79 of the Rules of Court. I will
demonstrate in this discussion that the US objection possesses an
exclusively preliminary character and that the Court should therefore
rule in this preliminary phase on its substance.
I will also return briefly to a related point first raised by my
colleague, Professor Lowenfeld, regarding the standards which the Court
should employ to determine whether it is properly vested with
jurisdiction in this matter. In the view of the United States, the
Court's jurisdiction obtains only if Iran succeeds in establishing that
its claims are reasonably related to the provisions of the 1955 Treaty
which it has invoked.
I.
The Islamic Republic of Iran has asserted in its Written Submission
that the US objection does not possess an exclusively preliminary
character within the meaning of Article 79. It bases this assertion upon
a fundamental misinterpretation of that Article. Moreover, Iran fails to
identify with specificity those legal and factual components of the us
objection which purportedly render it not exclusively preliminary.
Before refuting Iran's assertions directly and in greater detail, I
would like to take a closer look at the relevant paragraphs of Article
CR 96/13 - 50 -
79, and the circumstances surrounding the original drafting of these
paragraphs which was accomplished, of course, in the 1972 amendments to
the Rules of Court. This is, ta be sure, ground well familiar to the
Court; nonetheless, with the Court's indulgence, I would like ta review
just a bit of this background very briefly to help frame
the US argument.
A.
Prier ta their revision in 1972, the Rules of Court provided that
jurisdictional objections could be sustained, rejected, or joined to the
merits. Paragraph 7 of what is now Article 79, originally enacted as
part of Article 67 in 1972, eliminated the express option of joining an
objection to the merits, providing instead that the Court could declare
that an objection did not possess an exclusively preliminary character.
This change followed criticism of the Court•s earlier practice of
joining objections ta the merits. In 1970, for example, the view was
expressed in the United Nations Sixth Committee that
"it would be useful for the Court ta decide expeditiously on
all questions relating to jurisdiction and ether preliminary
issues which might be raised by the parties. The practice of
reserving decisions on such questions pending consideration of
the merits of the case had many drawbacks and had been sharply
criticized in connection with the Soutb West Africa cases and
the Barcelona Traction case." (Report of the Sixth Committee,
UNGA (25th session, Dec. 1970), UN Doc. A/8238, p. 19.)
Likewise, in 1971, the Sixth Committee reported the view that "the Court
should be encouraged to take a decision on preliminary objections as
quickly as possible and to refrain from joining them to the merits unless
it was strictly essential" (Report of the Sixth Committee, UNGA (26th
session, Dec. 1971), UN Doc. A/8568, p. 21).
CR 96/13 - 51 -
Following these debates, the Rules of Court were revised in 1972.
In the aftermath of the revision, then President of the Court Jiménez de
Aréchaga authored an article discussing the changes that had been made,
and reiterating the views that had been expressed in the Sixth Committee.
He wrote that the increased possibility of the joinder of preliminary
objections "has been criticized in many quarters because by such an
action the Court merely postpones its decision on the matter and the same
question is pleaded twice over" (E. Jiménez de Aréchaga, "The Amendments
to the Rules of Procedure of the International Court of Justice",
American Journal of International Law, vol. 67, p. 14 (1973)). President
de Aréchaga noted that the need for the Court to reach a preliminary
decision on those objections that affect its jurisdiction was advocated
both by experts and States (id. at p. 12).
Paragraph 7, which eliminated the express option of joining a
jurisdictional objection to the merits, was not the only notable change
made to the Rules in 1972. Paragraph 2 established as a foundational
matter that "the preliminary objection shall set out the facts and the
law on which the objection is based, the submissions and a list of
documents in supporti it shall mention any evidence which the party may
desire to produce". And to enable the Court to give due consideration to
jurisdictional objections at a preliminary stage, paragraph 6 established
that the Court "whenever necessary, may request the parties to argue all
questions of law and fact, and to adduce all evidence, which bear on the
issue".
Thus, if one takes paragraphs 2, 6 and 7 together, it is clear that
the Rules contemplate objections of an exclusively preliminary character
that may indeed require the Court's consideration of certain issues of
CR 96/13 - 52 -
law and fact. As Professer Rosenne states in his treatise on Procedure,
the Rules of Court as revised in 1972 "emphasize the Court's desire to
dispose of [preliminary] objections at as early a stage as possible, even
if this involves sorne discussion of the merits" (Sh. Rosenne, Procedure
in the International Court (1983), p. 163). Similarly, President
de Aréchaga wrote in 1973 that paragraph 6 "announces the intention of
pronouncing upon the Court's jurisdiction at the preliminary stage of the
proceedings" (E. Jiménez de Aréchaga, supra, p. 12).
Examined plainly, the intent animating Article 79 is to dispose of
jurisdictional objections preliminarily whenever possible. To facilitate
doing so, the Court is empowered to adjudicate relevant, factual and
legal questions, so long, of course, as such adjudication does not
entangle the Court in the merits of a case.
B.
The crux of the US preliminary objection is that the Islamic
Republic of Iran's Application and Memorial do not present claims that
give rise to a dispute under the 1955 Treaty; as you have heard, it is
our view that the 1955 Treaty does not regulate - and was never intended
to govern the conduct of - military hostilities between the parties. If
the Treaty does not apply to such conduct, then the Court does not have
jurisdiction to hear Iran's claims.
Iran asserts that this objection requires the Court to examine the
conduct that is the subject of its claims. In doing so, Iran contends,
the Court would effectively be treating the merits of the Iranian
Application, and thus it is said that the US jurisdictional objection is
not of an exclusively preliminary character. Indeed, it is Iran's
CR 96/13 - 53 -
position that for a preliminary objection to be exclusively preliminary
in character, it must be "patently independent" of the ether issues in
the case (Islamic Republic of Iran, Observations and Submissions on the
US preliminary objection, p. 73, para. 4.30). Further, Iran has
contended that the question of whether a treaty applies to particular
conduct and therefore vests this Court with jurisdiction will "rarely if
ever" be an exclusively preliminary matter because such inquiries, it is
said, require the consideration of the relevant factual circumstances
(id., p. 71, para. 4.25 (c)).
Iran has failed in its written pleadings to invoke any support for
this narrow, novel, and entirely unjustified construction of Article 79.
Nor could it have marshalled any such authority. The suggestion that an
objection must be "patently independent" of all ether issues in arder to
be considered "exclusively preliminary" is fundamentally inconsistent
with the express terms of Article 79. Paragraph 6 provides that the
Court "whenever necessary, may request the parties to argue all questions
of law and fact, and to adduce all evidence, which bear on the issue".
Thus, Article 79 provides for consideration of various criteria which
bear on the preliminary objection; "patent independence" is not required.
Neither is it true, as Iran has suggested, that any objection which
requires the consideration of any facts bearing on the question of
jurisdiction cannet be considered exclusively preliminary. At a minimum,
those facts that are not disputed are perfectly suitable for
consideration by the Court in ruling on preliminary jurisdictional
objections. Indeed, as I have noted, Article 79 expressly contemplates
CR 96/13 - 54 -
that the Court may consider factual submissions, and adjudicate factual
questions in considering preliminary objections.
It is thus clear that Iran's interpretation of Article 79 is not
faithful to that provision's express terms. Iran's reading would
substantially constrain the Court's ability to dispose of preliminary
objections. It would limit the Court to considering only a narrow class
of the most abstract and most theoretical of objections at the
preliminary stage - a result contrary to both the text and design of
Article 79.
In the view of the United States, the only legitimate reason for the
Court not to rule on the US objection would be if doing so would prejudge
the merits of the case. In fact, consideration of the US jurisdictional
objection would not lead the Court to do so. Such consideration would
not require the Court to adjudicate questions of fact that are in dispute
or questions of law which are not necessary to the resolution of our
jurisdictional objection.
As my colleagues have noted, the US objection is based upon the
undisputed fact that the events in question were part of a series of
hostile engagements involving US and Iranian forces, which occurred
during the course of a major international armed conflict.
This cannat reasonably be disputed and has not been here. We have
not asked the Court to resolve any factual questions which are,
concededly, in dispute and which are at the heart of the merits - for
example, whether Iran was responsible for the attacks on the ships Sea
Isle City and USS Samuel B. Roberts. Iran has not pointed to any other
specifie factual questions which must be resolved to deal with the US
CR 96/13 - 55 -
objection, and none which cause the Court to prejudge the merits of the
case.
Nor does the US jurisdictional objection require the Court to
prejudge questions of law that should be addressed if - and only if -
this case reaches the merits phase. The legal element of our
jurisdictional claim is that the 1955 Treaty was not intended to regulate
the use of force and does not do so. The Court can rule on this issue
without difficulty, and without addressing any issues of law relating to
the merits of Iran's Application. Among those legal issues to be
considered at a merits phase would be the proper interpretation and
application of the 1955 Treaty's "essential security interests" clause
contained in Article XX (1), and other legal questions relating to the
law of armed conflict and the exercise of the right to self-defense. The
resolution of these issues is not implicated by the US objection.
The recent decision of the Court in the Genocide case provides a
madel for this proceeding (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v.
Yugoslavia), Preliminary Objections, 11 July 1996, General List No. 91).
As in this case, there the claimant asserted that the Court had
jurisdiction by virtue of a treaty, and the responding State asserted
that the treaty was not applicable. Specifically, the respondent Federal
Republic of Yugoslavia argued, inter alia, that the allegations of
genocide contained in Bosnia's Application did not present a dispute
between the parties within the meaning of the Genocide Convention's
compromissory clause, because the acts in question occurred in the
context of an internai conflict, rather than an international conflict.
CR 96/13 - 56 -
The Court considered the Federal Republic of Yugoslavia's
jurisdictional objection appropriate for resolution at the preliminary
stage, just as the Court should do here. The Court cornpared the claims
made to the text of the treaty and found a reasonable connection between
them. When the Court engages in the same analysis in this case, it will
find that Iran's claims are not reasonably connected to the 1955 Treaty.
Similar precedent can be found in the case concerning Certain
Phosphate Lands in Nauru (Nauru v. Australia, Preliminary Objections,
Judgment, I.C.J. Reports ~992, p. 240). In that case, the Republic of
Nauru claimed that Australia was obligated to make reparations for having
depleted phosphate lands during Australia's administration of the Nauru
trusteeship prior toits termination in 1967. Australia, in turn,
submitted a number of preliminary objections, contending, inter alia,
that Nauru authorities waived all claims to the rehabilitation of the
phosphate lands by virtue of a 1967 Agreement, and that the termination
of the Trusteeship by the United Nations in 1967 precluded the Court sorne
25 years later from examining allegations that the Trusteeship had been
breached.
These objections raised a number of questions regarding the
interpretation of the Agreement which terminated the Trusteeship, the
content of discussions leading up to the conclusion of that Agreement,
and the content and meaning of related debates in the United Nations and
in the Trusteeship Council. In short, the resolution of Australia's
objections required the Court to delve into various facts and
circumstances and into the interpretation of an Agreement that would be
the subject of much debate and dispute during the merits phase of the
case. The Court did not respond to these Australian objections by ruling
CR 96/13 - 57 -
that they did not possess an exclusively preliminary character; it did
not defer the consideration of those objections to the merits phase.
Rather, it ruled on their substance. So toc should the Court do in this
case.
We believe the proper approach to resolving preliminary objections
1
was articulated by Judge Petren in his separate opinion in the Court s
1974 Nuclear Tests case. There Judge Petren stated that in exercising
its discretionary power to resolve objections at the preliminary phase
the Court should
1assess the degree of complexity of the preliminary question in
relation to the whole of the questions going to the merits. If
the preliminary question is relatively simple, whereas
consideration of the merits would give rise to lengthy and
complicated proceedings, the Court [he said] should settle the
preliminary question at once. 11 (Nuclear Tests (Australia v.
France), Judgment, I.C.J. Reports 1974, p. 489.)
The case new before the Court is precisely the type of case to which
Judge Petren referred. The jurisdictional question before the Court is
narrow and discrete. By contrast, the merits phase of this case would,
if reached, prove extensive, elaborate, and enormously fact-intensive, in
view of the subject matter and the nature of Iran 1S allegations. Under
Judge Petren 1s analysis, the disproportionate burdens that would attend
the merits phase of this case - burdens on the Parties, and on the Court
- further militate in faveur of the resolution of the US jurisdictional
objection during the preliminary phase.
To summarize, the US objection presents a classic, threshold,
preliminary question: whether the treaty instrument upon which
jurisdiction is predicated governs the conduct in question. To be sure,
one can conceive of a hypothetical case in which this question could be
answered only by engaging in a detailed analysis of facts that lie at the
CR 96/13 - 58 -
heart of the merits of a claim. But this case is not such a case. The
relevant facts that support the US jurisdictional objection are of a
general, obvious character; they are not in dispute, and they would not
be at issue during the Court's consideration of the merits of Iran's
Application.
For these reasons, the US jurisdictional objection clearly manifests
an exclusively preliminary character and should be ruled upon by the
Court.
II.
In ruling upon the US objection, the Court will be required to
determine whether the Iranian Application presents claims that give rise
to a dispute under the l955 Treaty. My colleagues have already addressed
this question in considerable detail.
But one point merits brief emphasis, because it speaks to an
important legal standard not contained in Article 79 which properly
informs the Court's consideration of the US objection.
In considering this objection, the Court must decide as a threshold
matter what constitutes a dispute within the meaning of the l955 Treaty's
compromissory clause. In the view of the United States, a dispute under
the compromissory clause exists if - and only if - the claims submitted
by Iran manifest a reasonable connection to the l955 Treaty. This is the
same approach that was taken by the Court in the Ambatielos case, where
the Court emphasized that "[i]t is not enough for the claimant government
to establish a remote connection between the facts of the claim" and the
instrument upon which jurisdiction was founded (Ambatielos (Greece v.
United Kingdom), Merits, I.C.J. Reports 1953, p. l8).
CR 96/l3 - 59 -
Iran appears to take a very different view - a view which has
significant implications for this Court's jurisdiction and for the
interpretation of compromissory clauses in other contexts. Iran asserts
that a dispute exists under the 1955 Treaty giving rise to the Court's
jurisdiction whenever two parties disagree over the interpretation of its
provisions - no matter the nature of the claim in question, and no matter
how attenuated the claim may be from the Treaty's text. This is not
consistent with the Court's stated position in previous cases that a
reasonable connection must be demonstrated between the claims embodied in
an application to the Court, and the treaty instrument upon which such
claims are founded.
Indeed, to say that the Court's jurisdiction obtains whenever two
States disagree, regardless of the nature of the disagreement and the
content of the relevant treaty provision, would allow any individual
State party to a treaty to manufacture a dispute, and to manufacture
jurisdiction in this Court, by making a manifestly unreasonable claim
under the instrument in question. An unreasonable claim - one that is
patently unsound - would, in a literal sense, lead to a dispute between
the parties, and in turn, under Iran•s theory, to jurisdiction in this
Court. This approach to the interpretation of the 1955 Treaty's
compromissory clause would undermine the principle of consent that forms
the basis of, and imparts legitimacy to, this Court's exercise of
jurisdiction. It would prevent the Court from taking reasonable steps to
conserve its time and its resources, as well as to protect the interests
of other States with claims before the Court.
The interpretative approach advocated by the United States is by no
means novel. The Permanent Court took a similar view, for example, in
CR 96/13 - 60 -
the Mavrommatis Palestine Concessions case (Mavrommatis Palestine
Concessions, P.C.I.J., Series A; No. 2 (1924)). There the United Kingdom
objected to the Permanent Court's exercise of jurisdiction, asserting
that the claim submitted by Greece fell outside the category of disputes
covered by the compromissory clause of the Palestine Mandate. The
Permanent Court did not however resolve this jurisdictional question in
the manner that Iran has suggested - that is, by simply concluding that
the existence of a dispute concerning the interpretation of the Mandate
gave rise to jurisdiction. Rather, the Permanent Court explained in the
following passage that it could assume jurisdiction only if it was
established that the claim submitted indeed fell within the scope of the
relevant clauses of the Mandate:
"The Court, bearing in mind the fact that its
jurisdiction is limited, that it is invariably based on the
consent of the respondent, and only exists in so far as this
consent has been given, cannet content itself with the
provisional conclusion that the dispute falls or not within the
terms of the Mandate. The Court, before giving judgment on the
merits of the case, will satisfy itself that the suit before it
. . . falls to be decided by application of the clauses of the
Mandate. For the Mandatory has only accepted the Court's
jurisdiction for such disputes." (Id. at p. 16.)
In sum and in conclusion, a treaty reflects an understanding between
State parties. And the compromissory clause contained in a treaty
manifests an agreement to adjudicate disputes that relate reasonably to
this understanding. The Court should not endorse the notion that any
claim, no matter its nature, engenders a dispute that gives rise to
jurisdiction. Such a view would only encourage the filing of unjustified
claims; it would encourage the abuse of this Court's processes, and it
would campel respondent States to shoulder the burden of preparing a
defense on the merits to allegations that are not within the Court's
CR 96/13 - 6~ -
jurisdiction. Such a result would diminish the authority and the
credibility of the Court.
Mr. President, Members of the Court, this completes my presentation.
Thank you for your attention. I would ask that the Court invite the
Agent of the United States, Mr. Matheson, to conclude the US argument.
The PRESIDENT: Thank you very much Mr. Chorowsky for your
statement. I now give the floor to Mr. Matheson.
Mr. MATHESON: Mr. President and Members of the Court. You have now
heard the case for upholding the preliminary objection of the United
States. We contend that the issues raised in this preliminary objection
are of an exclusively preliminary character and can be decided by this
Court during this phase of the case. In this regard, the Court does not
have to decide the factual and legal questions that would be at the heart
of the merits phase of this case, if such a phase should be necessary.
First, we do not ask the Court to resolve any disputed questions of
fact. 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 series of hostile engagements
between US and Iranian forces that occurred during the course of an
international armed conflict. This, in our view, is a sufficient factual
predicate to uphold the us preliminary objection.
Second, we do not ask the Court to determine which of the Parties
was at fault - in particular, whether the United States was acting in
legitimate self-defense in response to Iranian attacks, whether the
Iranian platforms were legitimate military targets, or whether the US
CR 96/~3 - 62 -
response was necessary and proportionate and consistent with the rules of
warfare. All this would be at issue in a merits phase but is not at
issue in the current phase of the proceedings.
Instead, we have asked the Court to decide, as a preliminary matter,
that Iran's claims have no reasonable connection to the 1955 Treaty. As
Mr. Chorowsky has shown, the lack of such a connection has been
recognized by the Court as a valid ground for preliminary objection. The
Court's jurisprudence clearly establishes that if there is no reasonable
connection between an applicant's claims and the treaty in question, then
the Court should sustain the preliminary objection.
If, as we maintain, there is in fact no reasonable connection in the
present case, then the Court should uphold the preliminary objection of
the United States. Rule 79 was drafted in order to conserve the Court's
resources by avoiding unnecessary merits proceedings. We believe the
present case is a perfect one for the use of Rule 79 to serve this
purpose.
Let me briefly recall our line of reasoning. Professer Lowenfeld
demonstrated that the United States could not be found to have consented,
through this treaty on commercial and consular matters, to the
jurisdiction of the Court over all aspects of friendly US-Iranian
relations, as the Islamic Republic of Iran argues.
In particular, as Professer Lowenfeld pointed out, there is quite
simply no reason at all to believe that the two Parties agreed to subject
controversies about armed conflict to adjudication in this Court pursuant
to the 1955 Treaty, which contains no standards by which to judge such a
controversy.
CR 96/13 - 63 -
Mr. Crook established that none of the specifie provisions of the
1955 Treaty has any reasonable connection with the combat operations of
military forces during the course of an international armed conflict. He
showed that the general, aspirational language of Article I does not
impose legal obligations on the parties, and certainly does not sweep the
law of armed conflict into this commercial treaty. Article IV deals with
the regulation by one party of investments by nationals of the ether
party, and plainly has nothing to do with military operations. Article X
deals with the particulars of maritime commerce between the two
countries, and also clearly does not address military operations.
Finally, Dr. Murphy rebutted the Iran reliance on the Court's
Nicaragua decision. He showed that this decision does not support the
arguments of the Islamic Republic of Iran in the present case. The Court
did not find that it had jurisdiction under the US-Nicaragua FCN Treaty
to deal with Nicaragua's general claim that the United States was acting
in an "unfriendly" manner. Rather, it regarded this as an aspect of a
duty under customary international law that lay outside the
jurisdictional clause of the Treaty. The Court did not accept the
Nicaraguan argument that the US attacks were a violation of the
"equitable treatment" provisions of the FCN Treaty. The Court's decision
on the shipping article of the Nicaragua treaty has no application to the
actions at issue here. Here we are dealing with platforms that have no
relationship to maritime commerce and were in fact being used for
military purposes.
But the clearest proof that Iran's claims have no reasonable
relationship to the 1955 Treaty lies in the fundamental nature of the
claims themselves. The Islamic Republic of Iran is not complaining that
CR 96/13 - 64 -
the United States had violated sorne rule for the protection of trade and
investment, such as one would naturally expect in a treaty of this
character.
The Iranian complaint is in fact that the United States has violated
the rules of the United Nations Charter and customary international law
on the use of force. Its attempt to attach these allegations to the 1955
Treaty are simply a matter of a need to find sorne basis - however
implausible- to bring them within the Court's jurisdiction.
The fundamental implausibility of this attempt was well described by
Professer Lowenfeld. Is it plausible that the United States, after
carefully defining and limiting its acceptance of the Court's
jurisdiction in its 1946 declaration under Article 36 (2) of the Statute
of the Court, would then agree to unconstrained jurisdiction over the
entirety of its friendly relations with just a few of its FCN partners?
Is it plausible that two governments negotiating a fairly standard treaty
on commercial and consular matters would, by implication, and with no
notice whatever to the Senate and the Majlis, radically expand the scope
of the treaty to encompass not only the conduct of armed hostilities but
also any ether aspect of their relationship that might be deemed to be a
feature of friendly relations?
With respect, we do not believe the governments had any such
intention. We do not believe that the 1955 Treaty produces any such
result. We believe there is no reasonable connection between that Treaty
and the claims brought before the Court in this case.
We therefore believe that the Court should uphold the preliminary
objection of the United States in this proceeding. Accordingly, we
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maintain the formal Submission set forth on page 54 of the US preliminary
objection.
Mr. President, this concludes the initial argument of the United
States. As always, we are very grateful for the attention and
consideration given by the Court to our presentations. We would of
course be happy to respond to any qUestions which any Member of the Court
might wish to pose to us. Thank you, Sir.
The PRESIDENT: Thank you very much Mr. Matheson for your statement.
That concludes the first round of the oral argument of the United States
of America. The Court will now adjourn and the hearing will resume on
Thursday morning at 10.00 a.m. when the Islamic Republic of Iran will
make its opening statements. Thank you.
The Court rose at ~2 p.m.
CR 96/13
Public sitting held on Monday 17 September 1996, at 9.30 a.m., at the Peace Palace, President Bedjaoui presiding