Summaries of Judgments, Advisory Opinions and Orders of the Internationa
l Court of Justice
Not an official document
CASE COYNCERNING 01iLPLATFORMS (ISLAMIC REPUBLIC OF IRAN v.
UNITED STATES OF AMERICA) (PRELIMINARY OBJECTIONS)
Order of 12 Dlecember1996
In an Order issued in the case concerning Oil Platforms the otherTreatyprovisionswere tobeinterpretedandapplied,
(Islamic Republic of Iran v.United States of America),the but that it could not, taken in isolation, be a basis for the
Court delivered a Judgment by which it rejected the pre- Court's jurisdiction. Neither could article IV, paragraph 1,
liminary objection to its jurisdiction raisedy the United of the Treaty, thedetailcd provisions of which concerned
States. It found that it hadjurisdiction to deal with the casethe treatment by each party of the nationals and companies
on the basis of article XXI, paragraph 2, of the Treaty of of the other party, as well as their property and enterprises,
Amity, Economic Relations and Consular Rights between but which did not cover the actions carried out in this case
the TJnitedStates and Iran, signed at Tehran on 15August by the United States against Iran, provide such a basis.
195.5,which entered into force on 16 June 1957. With regard to article X, paragraph 1,of the Treaty,
The United Stateshad argued that theCourt lacked juris- however, the Court foundthatthe destruction of theIranian
diction, onthe onehand, becausethe Treatyof 1955,which oilplatfornlsbythe UnitedStatescomplained ofby Iranwas
contained commercialand consularprovisions, wasnot ap- capable of having an effectupoilthe export trade in Iranian
plicstblein the event ofthe use of force.The Court foundin oil and,consequently, uponthe freedom of commerceguar-
this respectthat the Treaty,whichdoesnotexprc:sslyexclude anteed in that paragraph. The lawfulness of that destruction
any matters from the Court'sjurisdiction, imposes on each could therefore be evaluated in relation to that paragraph.
of the Parties various obligations on a variety of matters. As a consequence,thcreexistedbetweenthe Partiesa dis-
Any action incompatible with those obligationsis unlawful, pute as to the interpretationand the application of articleX,
regardless of the means by which it is broug:htabout, in- paragraph 1,of the Treaty of 1955;that dispute fell within
cluding the use of force.Matters relating to the useof force the scopeof the compromissoryclause in articleXXI,para-
are thereforenotperseexcludedfrom thereachoftheTreaty. graph 2, of the Treaty; and the Court therefore had juris-
Other arguments of the United States had related to the diction to entertain the dispute.
scope of various articles of the Treaty of 1955.The Court
four;~din this respect that, considering the object and pur-
pose of the Treaty, article I should be regarded as fixing
an objective (of peace and friendship), in the light of which
Continued on nexpage The full text of the operative paragraph reads as follows: Within the extended time-limit for the filing of the
"THECOURT Counter-Memorial, the United States raised a prelimi-
(1) rejects, by fourteen votes to two, the preliminary nary objection to the jurisdiction of the Court pursuant to
objection of the United States of America according to Article 79, paragraph 1, of the Rules of Court. Conse-
which the Treatyof 1955does not provide any basis for quently, the proceedings on the merits were suspended.
thejurisdiction of the Court; After Iran had filed a written statement of its observations
and submissions on the preliminary objection raised by the
IN FAVOUR: President Bedjaoui; Judges Guillaume, United States within the time-limit fixed, public hearings
Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, were lheldbetween 16 and 24 September 1996.
Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, The following final submissions were presented by the
Higgins, Parra-Aranguren; Judge ad hoc Rigaux;
AGAINSTV : ice-President Schwebel; Judge Oda; Parties:
(2) finds, by fourteen votes to two, that it hasjuris- On behalf of the United States,
diction, on the basis of article XXI, paragraph 2, of the "The United States of America requests that the
Treaty of 1955, to entertain the claims made by the Co~lrtuphold the objection of the United States to the
Islamic Republic of Iran under article X,paragraph 1,of jurisdiction of the Court in the case concerning Oil
that Treaty. Platforms (IslanticRepublic of Iran v. United States of
IN FAVOURP : resident Bedjaoui; Judges Guillaume, America). "
Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, On behalf of Iran,
Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo,
Higgins, Parra-Aranguren; Judge ad hoc R.igaux; "In the light of the facts and arguments set out above,
the Government of the Islamic Republicof Iran requests
AGAINSTV : ice-President Schwebel; Judge Oda." the Court to adjudge and declare:
1. That the Preliminary Objection of the United
States is rejected in its entirety;
2. That,consequently,theCourthasjurisdictionunder
article XXI (2) of the Treaty of Amity to entertain the
The Court was composedas follows: President Bedjaoui; claims submitted by the Islamic Republic of Iran in its
Vice-President Schwebel; Judges Oda, Guillaume, Application and Memorial as they relate to a dispute
Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, between the Parties astothe interpretation or application
Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, of the Treaty;
Higgins, Parra-Aranguren; Judge ad hoc Rigaux; Registrar 3. That, on a subsidiary basis in the event the Pre-
Valencia-Ospina. liminary Objection is not rejected outright, it does not
possess, in the circumstances of the case,an exclusively
pre:liminarycharacterwithinthe meaningof Article79(7)
of the Rules of Court; and
4. Any other remedy the Court may deem appro-
Judges Shahabuddeen, Ranjeva, Higgins and Parra- priate."
Aranguren and Judge ad hoc Rigaux appended separate
opinions to the Judgment of the Court. Article XYI, paragraph 2, of the Treaty of 1955 and the
Vice-President Schwebel and Judge Oda appended dis- nature of the dispute
senting opinions to the Judgment of the Court. (paras. 12-16)
After summarizing the arguments put forward by Iran in
the Application and in the course of the subsequent pro-
ceedings, the Court concludes that Iran claims only that
article I, article IV, paragraph 1, andarticle X, paragraph 1,
Institution of proceedings and history of thecase of the:Treaty of 1955 have been infringed by the United
(paras. 1-11) States and that the dispute thus brought into being is said
to fall within the jurisdiction of the Court pursuant to
The Court begins by recalling that on 2 November 1992 article XXI, paragraph 2, of the same Treaty.
the Islamic Republic of Iran instituted proceedings against The United States for its part maintains that the Appli-
the United States of America in respect of a dispute cation of Iran bears no relation to the Treaty of 1955. It
stresses that, as a consequence, the dispute that has arisen
"aris[ing] out of the attack [on] and destruction of three between itself and Iran does not fall within the provisions
offshore oil production complexes, owned and operated of article XXI, paragraph2, ofthe Treaty and deduces from
for commercial purposes by the National Iranian Oil this that the Court must findthat it lacksjurisdiction to deal
Company,by severalwarshipsofthe United StatesNavy
on 19October 1987and 18April 1988,respectively". with it.
In its Application, Iran contended that these acts consti- The Court points out, to begin with, that the Parties do
tuted a "fundamental breach" of various provisions of the not contest that the Treaty of 1955was in force at the date
Treaty of Amity, Economic Relations and Consular Rights of the filing of the Application of Iran and is, moreover,
between the United States of America and Iran, which was still in force. The Court recalls that it had decided in 1980
signed at Tehran on 15August 1955and entered into force that the Treaty of 1955was applicable at that time (United
on 16June 1957(hereinafter called "the Treaty of 1955"), States Diplomatic and ConsularStaffin Tehran,Judgment,
as well as of international law. The Application invokes, I.C.J. Reports 1980, p. 28, para. 54); none of the circum-
as a basis for the Court's jurisdiction, article XXI, para- stancr:~brought to its knowledge in the present case would
graph 2, of the Treaty of 1955. cause it now to depart from that view. By the terms of article XXI, paragraph 2, of that Treaty: Article1 of the Treaty
(paras. 22-31)
"Any dispute between the High Contracting Parties as
to .theinterpretation or application ofthe present Treaty, In the second place, the Parties differ as to the interpre-
n0.tsatisfactorily adjusted by diplomacy, shall be sub- tation to be given to article I, article IV, paragraph 1, and
mitted to the Internation~alCourt of Justice,,unless the article X, paragraph 1,of the Treaty of 1955.According to
High Contracting Parties agree to settlement by some Iran, the actions which it alleges against the United States
other pacific means." are such as to constitute a breach of those provisions and
It is not contested that several of the con,ditions laid the Court consequently hasjurisdiction rationenzateriaeto
down by this text have been met in the present case: a dis- entertain the Application. According to the United States,
pute has arisen between Iran and the United States; it has this is not the case.
not been possible to adjust that dispute by diplomacy; and Article I of the Treaty of 1955 provides that: "There
the two States have not agreed "to settlement by some shall be firm and enduring peace and sincere friendship
other pacific means" as contemplated by article XXI. On between the United States ... and Iran."
the other hand, the Parties differ on the question whether According to Iran, this provision "does not merely for-
the dispute between the two States with respect to the law- mulate a recommendation or desire . . . ,but imposes
fulness of the actions carried out by the United States actual obligations on the Contracting Parties, obliging
against the Iranian oil platforms is a dispute "as to the them to maintain long-lasting peaceful and friendly rela-
interpretation or appIication9' of the Treaty of 1955. In tions"; it would impose upon the Parties "the minimum
order to answer that question, the Court cannol:limit itself requirement ... to conduct themselves with regard to the
to noting that one of the Parties maintains that such a dis- other in accordancewith the principles and rules of general
pute exists, and the other denies it. It must ascertain international law in the domain of peaceful and friendly
whetiherthe violations of the Treaty of 1955 pleaded by relations".
Iran #door do not fall within the provisions of the Treaty
and whether, as a consequence, the dispute is one which The United States considers, on the contrary, that Iran
the Court has jurisdiction ratione nzateriaeto entertain, "reads far too much into article I". That text, according to
pursuant to article XXI, paragraph 2. the Respondent, "contains no standards", but only consti-
tutes a "statement of aspiration". That interpretation is
called for in the context and on account of the "purely
Applicability of the Treatyof 1955 in the event of theuse commercial and consular" character of the Treaty.
of-force The Court considers that the general formulation of
(paras. 17-21) article I cannot be interpreted in isolation from the object
and purpose of the Treaty in which it is inserted. There are
The Court first deals with the Respondent's argument some Treaties of Friendship which contain not only a pro-
that the Treaty of 1955 does not apply to questions con- vision on the lines of that found in article I but, in addition,
cerning the use of force. In this perspective, the United clauses aimed at clarifying the conditions of application.
States contends that, essentially, the dispute relates to the However, this does not apply to the present case. Article I
lawfulness of actions by naval forces of the United States is in fact inserted not into a treaty of that type, but into a
that "involved combat operations" and that there is simply treaty of "Amity, Economic Relations and Consular
no re:lationshipbetween the whoIly commercial and con- Rights" whose object is, according to the terms of the
sular provisions of the Treaty and Iran's App1.icationand preamble, the "encouraging [of] mutually beneficial trade
Memorial, which focus exclusively on allegations of un- and investments and closer economic intercourse gener-
lawful uses of armed force. ally", as well as "regulating consular relations" between
the two States. The re at r^gulates the conditions of resi-
Iran maintains that the dispute that has arisen between dence of nationals of one of the parties on the territory of
the F'artiesconcerns the interpretation or application of the other (art. 11),the status of companies and accessto the
the Treaty of 1955. It therefore requests that the prelimi- courts and arbitration (art. 111),safeguards forthe nationals
nary objection be rejected, or, on a subsidiary basis, if
it is not rejected outright, that it should be regarded as and companies of each of the contracting parties as well as
not having an exclusively preliminary character within their property and enterprises (art. IV), the conditions for
the rneaning of Article 79, paragraph 7, of the Rules of the purchase and sale of real property and protection of
Court. intellectual property (art. V), the tax system (art. VI), the
system of transfers (art. VII), customs duties and other
Th.eCourt notes in the first place that the Tre:atyof 1955 import restrictions (arts. VIII and IX), freedom of com-
contains no provision expressly excluding certain matters merce and navigation (arts. X and XI), and the rights and
from the jurisdiction of the Court. It takes the view that duties of consuls (arts. XII-XIX).
the Treaty of 1955 impose!;on each of the Parties various It follows that the object and purpose of the Treaty of
obligations on a variety of'matters. Any action by one of 1955 was not to regulate peaceful and friendly relations
the F'artiesthat is incompatible with those otlligations is between the two States in a general sense. Consequently,
unlawful, regardless of the:means by which ii:is brought article I cannot be intcrpreted as incorporating into the
about. A violation of the rights of one party under the Treaty a11of the provisions of international law concerning
Treaty by means ofthe use of force is as unlawiul as would such relations. Rather, by incorporating into the body of
be a violation by administ:rativedecision or by any other the Treaty the form of words used in article I, the two
means. Matters relating to the use of force aretherefore not States intended to stress that peace and friendship consti-
per s.eexcluded from the reach of the Treaty of 1955.The tuted the precondition for a harmonious development of
arguments put forward on this point by the United States their commerciaI, financial and consular relations and that
must therefore be rejected. such a development would in turn reinforce that peace andthat friendship. It follows that article I must be regarded as Having regard to other indications in the Treaty of an
fixing an objective, in the light of which the other Treaty intention of the parties to deal with trade and commerce in
provisions are to be interpreted and applied. The Court general, and taking into account the entire range of activi-
further observes that it does not have before it any Iranian ties clealtwith in the Treaty, the view that the word "com-
document in support of Iran's position. As for the United merce" in article X, paragraph 1, is confined to maritime
States docun~entsintroduced by the two Parties, they show commerce does not commend itself to the Court.
that at no time did the United States regard article I as
having the meaning now given to it by the Applicant. Nor Inthe view of the Court, there is nothing to indicate that
does the practice followed by the Parties in regard to the the parties to the Treaty intended to use the word "com-
application of the Treaty lead to any different conclusions. merce" in any sense different from that which it generally
bears. The word "commerce", whether taken in its ordi-
Inthe light of the foregoing, the Court considers that the nary sense or in its legal meaning, at the domestic or
objective of peace and friendship proclaimed in article I of international level, has a broader meaning than the mere
the Treaty of 1955 is such as to throw light on the inter- reference to purchase and sale. The Court notes in this con-
prctation of the other Treaty provisions, and in particular nection that the Treaty of 1955deals, in its general articles,
of articles IV and X. Article I is thus not without legal sig- with a wide variety of matters ancillary to trade and com-
nificance for such an interpretation, but cannot, taken in merce; and refers to the Oscar Chinn case in which the
isolation, be a basis for the jurisdiction of the Court. expr<:ssion"freedom of trade" was seen by the Permanent
Court as contemplating not only the purchase and sale of
Article IV,paragraph I, of the Treaty goods, but also industry, and in particular the transport
(paras. 32-36) business.
Th.eCourt further points out that it should not in any
Article IVYparagraph 1, of the Treaty of 1955provides event overlook that article X, paragraph 1,of the Treaty of
that: 1955 does not strictly speaking protect "commerce" but
"Each High Contracting Party shall at all times accord 'Yreedomof commerce". Any act such as the destruction
fair and equitable treatment to nationals and companies
ofthe otherHighContracting Party, andtotheirproperty of goods destined to be exported, or capable of affecting
and enterprises; shall refrain from applying unreason- their transport and their storage witha view to export, which
able or discriminatorymeasures that would impair their impedes that "freedom" is thereby prohibited. The Court
legally acquired rightsandinterests;and shall assurethat points out in this respect that the oil pumped from the plat-
their lawful contractual rights are afforded effective forms attacked in October 1987passed from there by sub-
meansof enforcement, in conformitywiththeapplicable sea line to the oil terminal on Lavan Island and that the
laws." Salman complex, object of the attack of April 1988,was
The Court, with regard to the arguments advanced bythe also connected to the oil terminal on Lavan by subsea line.
Parties, observes that article IV, paragraph 1, unlike the The Court finds that on the material now before it, it is
other paragraphs of the same article, does not include any indeed not able to determine if and to what extent the
territoriai limitation. It further points out that the detailed destruction of the Iranian oil platforms had an effect upon
provisions ofthat paragraph concern the treatment by each the export trade in Iranian oil; it notes none the less that
party of the nationals and companies of the other party, their destruction was capable of having such an effect and,
as well as their property and enterprises. Such provisions consequently, of having an adverse effect upon the free-
do not cover the actions carried out in this case by the dom of commerce as guaranteed by article X, paragraph 1,
United States against Iran. Article IV, paragraph 1, thus of the Treaty of 1955. It follows that its lawfulness can be
does not lay down any norms applicable to this particular evaluated in relation to that paragraph.
case. This article cannot therefore form the basis of the
Court's jurisdiction.
Article X, paragraph I, of the Treaty
(paras. 37-52) In the light of the foregoing, the Court concludes that
Article X, paragraph 1, of the Treaty of 1955 reads as there exists between the Parties a dispute as to the inter-
follows: "Between the territories of the two High Con- pretation and the application of article X, paragraph 1, of
the Treaty of 1955;that this dispute falls within the scope
tracting Parties there shall be freedom of commerce and of the compromissory clause in article XXI, paragraph 2,
navigation." of the Treaty; and that as a consequence the Court has
It has not been alleged by the Applicant that any military juristliction to entertain this dispute.
action has affected its freedom of navigation. Therefore, The Court notes that since it must thus reject the pre-
the qucstion the Court must decide, in order to determine liminary objection raised by the United States, the submis-
its jurisdiction, is whether the actions of the United States sions whereby Iran requested it, on a subsidiary basis, to
complained ofby Iran had the potential to affect "freedom find that the objection did not possess, in the circumstances
of commerce" as guaranteed by the provision quoted
above. of the case, an exclusively preliminary character no longer
Iran has argued that article X, paragraph 1, does not have any object.
contemplate only maritime commerce, but commerce in
Separate opinionofJudge Shahabuddeen
general, while according to the United States the word
"commerce" must be understood as being confined to In his separate opinion, Judge Shahabuddeen observed
maritime commerce,as being confinedto commercebetween that possibilities for improvement did not prevent him
the United States and Iran, and as referring solely to the from giving support to the dispositifin the form in which
actual sale or exchange of goods. it stood. However, he was ofthe view that thejurisdictionaltest which the Court had used precludcd it from asking the the opinion wondered whetheronewasjustified inthinking
right questions. Effectively, the Court had sought to makc that article IV excluded from its domain the effective and
a definitive dctermination of the meaning of thc 1955 voluntary conduct of one of the litigants with respect to a
Treatybetween thc Parties. InJudge Shahabudcleen'sview, company falling withinthejurisdiction of the other. Lastly,
the Court sholild inercly ha.veasked whether the construc- the explicit referenceto article X raised the problem ofthe
tion of the Treaty on which thc Applicant relied was an integrityof the rightsofthe United Statesof America: How
arguable onc, even if it later-turned outto be incorrect.This was the link of connexity established as between freedom
was so farthe reason that the qucstion at this stagc was not of commerce and navigation and apossiblc clain~for repa-
whether the Applicant's claim was sound in law, but ration as a result of the destruction of warships? In conclu-
whether the Applicantwas entitled to an adjudication ofits sion, Judge Ranjeva considered that the intcrpretation of
claim. The respectful impiression with whichhe left the the "bases ofjurisdiction" did not affect the rights of the
case was that the neglect to distinguish between these Parties, if the preliminary dccisionwere limitedto meeting
issues as consistently as was required andto apply the right the arguments on the sole basis of the plausibility of the
test rneant that the principle on which the Judgment was arguments in relationto the problenls inherent to the terms
constructed was not adequate to do full justice to either of the provisions, whose violation was claimed by the
Party; it created unnecessaly disadvantages for both. Applicant.
Separate opinionof'JudgeRanjeva Separate opinion of Judge Higgins
After setting out his reasons for voting in favour of the Various contentions had been made by the Parties as to
Judgment, Judge Ranjevaneverthelcss criticized the refer- how it should be decided whether Iran'sclaims fall within
ence to the first paragraph of article X of the Treaty of the compromissory clause of the 1955 Treaty of Amity,
1955;that reference might renderthe reading of the Judg- Economic Relations and Consular Rights. Inher separate
ment difficult. The Court's title of jurisdiction was the opinion, Judge Higgins addresses the n~ethodologyto be
compronlissory clause, whose terms raised no particular used in answering this question. She reviews the relevant
problem of interpretation. Elutin transposing the reasoning case-law of the Permanent Courtof International Justice as
adopted in the case concerning Application ofthe Conven- well as of the International Court. In certain of those cases
tion on the Prevention and Punishmentof the Crinze of it had been said that what was required was a "reasonable
connection" between the facts allegedandthe terms of the
Genocide (Bosnia andHerzegovina v. Ytrgosluvia),hadthe treaty saidto providejurisdiction; andthat the Court would
Judgtnent not gone beyond the object of thc preliminary reach a provisional conclusion as to the claimed bases of
objection procedure?The problem, the authorof the opinion jurisdiction. Judge Higgins findsthat this Iine of cases fall
acknowledged. resided in the fact that the objections were into a particular category and that another line of cases,
envisaged from the standpoint of their scope and signifi- stemming fromthe Mavronzmatiscase, are the more perti-
cance and not from that of their definition and that, in nent precedents forthe present case. They requirethat the
reality, it was not easy to draw a distinction between ques- Court fully satisf) itself that the facts as alleged by an
tions appertaining to the preliminary objections procedure applicant could constitute a violation of the treaty terms,
and questions appertaining to the merits of the case. In the and that this finding is definitive. Whether there is a vio-
view of Judge Ranjeva, the circumstances of t:hccase did lation can only be decidcd on the merits. Accordingly, it is
not vvarrant the transposition of the analytical method
adopted inthe case concerningApplication ofthe Conven- necessary at the jurisdictional stage to examine certain
tion on the Prevention and Punishment qf thz Crime of articles of the 1955 Treaty in detail. To do this does not
Genocide (Bosnia and Herzegovina v. Y~rgtvlavia),in intrude upon the merits.
whichthe Court first hadto make adeterminatic,non acon- Using this approach, Judge Higgins agreed with the
dition of thc applicability of the cornpromissory clause. Court that articlesIand 1V (I) provided no basis forjuris-
Such a condition was lacking in the present case, as the diction. However, in her view the correct reason for that
preliminary probiem related more to the applicability in conciusion as it applies in article IV (1) is because that pro-
general of the Treaty of 1955 than to that of thc com- vision refers to the obligations of onc party towards the
promissory clause. That being so, Judge Ranjeva consid- nationals, property and enterprisesoftheother party within
ered, it was for the Court not to state whether the argu- the former's own territory; and because the key terms in
ments were true or falsc from the legal standpoint butto article IV (1) were standard terms in law and inapplicable
ensur,ethat there was nothing absurd aboutthem or nothing to Iran's ciaims. Judge Higgins agrees that the Court has
which ran counter.to the norms of positive 1z.w.Hencc,
jurisdiction under article X (I), but only in so far as the
unles!;the objection related to the cotr~pktencerle lu coin- destroyed platforms are shown to be closely associated
pktence as in-the case concerning ~~1~1icutio nf the Con- with, or ancillary to, maritime commerce. Petroieum pro-
ventionon thePrevention and Pzcnishmentof the Crirneof duction does not fa11within the term "commerce", nor
Genocide (Bosnia and Herzegovina v. Yugo.slavia), or does interference with production fall under "frecdom of
unles:ithe objection was of ixgeneral nature, as i.nthe pres- commerce". But destruction of platforms used to pass
ent case, the Court's conclusion could but be limited to an petroleum into pipelines concerns transportation, which
affirmative or negativc reply to the objection, a:;otherwise is comprised within commerce, and thus may fall within
itwotrldrunthe risk ofraising aproblemof legai.prejudice. article X (1).
Judge Ranjeva regretted that the interpretationof articles I
and l\J had been made independently and in a strictlyana- Separate opinion ofJtrdgeParra-Aranguren
1ytica:lframework. Article I implied ancgative obligation
of conduct inherent to the prescriptionsof amity.and peace The actions carried out by the United States in this case
and whose function was to shed light onthe unc.erstanding were directed against the offshoreoil platforms belonging
of the other treaty provisions. That being so,tb: author of to the National Iranian Oil Company, not against Iran,as stated in paragraph 36 of the Judgment; and the National force:.Suchprovisions are, however, fully found in thePar-
Iranian Oil Company is a juridical person different from ties' Agreement of Cooperationof 1959.
Iran, even though Iran may own all of its shares. Conse-
quently, as an Iranian corporation,the National Iranian Oil Moreover, article XX, paragraph 1 (d) ,f the Treaty
Company is covered by article IV, paragraph 1, of the excludes from its reach measures necessary to protect a
Treaty of 1955, and shall.beaccorded "fair andequitable party's essential security interests. Such an exclusion
clause can hardly entitle the Court to assume jurisdiction
treatment", and also protected against the application of over a claim that engages the essential security interests
"unreasonable or discrin~inatory measures" that would of the Parties. The Court holds that the United States in
impair its legally acquired rights and interests. Therefore, oral argument concluded that this clause applied to the
in my opinion, the Court has jurisdiction to entertainthe merits, a conclusion whichthe Court itselfreachedin 1986
claims made by Iran under said article IV, paragraph 1,on in construing an identical clause in Military and Paramili-
the basis of article XXI, paragraph 2,ofthe Treatyof 1955. tary Activities in and against Nicaragua; and the Court
declares that itsees no reason to varythe 1986conclusion.
Separate opinion of Judge ad hoc Rigaux In Judge Schwebel's view, the positionofthe United States
in this case, and the responsibilities of the Court in this
1. Having supported the majority onthe two subpara- case, are somewhat different. The United States affirmed
graphs of the dispositif-unreservedly so where subpara- in these proceedings that article XX,paragraph1 (4,mani-
graph 1isconcerned-I expressedmyagreementwith sub- fested the Parties' intentto keep such matters outside the
paragraph 2, at the same time regretting the excessively scope of the Treaty; it maintained throughout that it pre-
narrow legal basis favoured to found thejurisdiction of the scribes exceptions to the reach of the Treaty. The Court
Court. in klilitary and Paramilitary Activities in and against
2. I feel I must also distance myself from certain parts Nicaragua failed in 1984to addressthis question at all at
of the reasoning relating tothe significance of article I of the stage of jurisdiction when it should have;as a conse-
quence it fell to the merits ifit was to be addressed at all.
the Treaty of Amity and respectfully dissociate myself
from the reasons why article IV, paragraph 1, was appar- This history leaves the Court free in this case objectively
ently unable to provide an adequate titleofjurisdiction. to apply the terms of article XX, paragraph 1 (d), uncon-
3. The objections thus formulated against certain parts strained by the 1986 holding. Moreover, question has
of the Judgment could have been avoided had the Court rightly been raised about the value as a precedent of the
adopted a different method, which must be deemed more Court's holdingsin that case.
in keeping with the precedents. This method would have The Court is right inthis case to holdthat the Treaty can
entailed limiting oneself strictlyto settlingthe preliminary be violated by a use of force. An expropriation could be
objection to jurisdiction and determining whether ques- effected by force or a consul could be forcibly maltreated.
tions of interpretation and applicationofthe Treaty existed, But it does not follow that the useby a party of its armed
notably as regards the application, to the facts alleged by forces to attack what it treatsas military objectives within
the Applicant, of article I, article IV, paragraph 1, and thejurisdiction ofthe other party is within the reachof the
article X, paragraph 1,andthe characterization, though not Treaty.
the materiality of which, was disputed by the Respondent.
Both Parties filed with their pleadings documents sub-
mitted to the United States Senate inthe course of ratifica-
Dissenting opinion of Vice-PresidentSchwebel tion of this and like treaties of friendship, commerceand
navigation. Among them are documents that show that
Judge Schwebeldissented fromthe Court's Judgment on intentions in concluding these treaties were to include
two grounds. In his view, neither the United States nor within the compromissory clause disputes"limited to the
Iran, in concludingthe Treatyof 1955,intendedthat claims differences arising immediately from the specific treaty
of the character advanced by Iran in this case would be concerned" andto exclude disputes over military security.
comprehended by the Treaty or its compromissory clause. Nor canjurisdiction be based on articleX, paragraph 1,
Nor do the particular claims of Iran fall within the terms of the Treaty. That article concerns maritime commerce.
of any provision of the Treaty including article X, para- Buteven if its first paragraph were to be interpretedto con-
graph 1. cern commerce at large, commerce may not be equated
What cannot be denied is that the attacks by the United with production. Productionis not ancillary to commerce;
States Navy on the three Iranian oil platforms at issue it is anterior to it. Nor does the Court's reliance on "free-
constituted a use by the United States of armed force
against what it claims to have seenas military objectives dom" of commerce strengthen its interpretation. The fact
or allegation that some of the oil platforms at issue were
located within the jurisdiction of Iran. Isa dispute over connected by pipeline to port facilities is insufficient to
such attacks onethat arises under the Treaty? carry Iran's case.
Obviously not, as the title, preamble and terms of the
Treaty indicate. It is a Treaty concerned with encouraging Dissenting opinion ofJudge Oda
mutually beneficial trade and investment and economic
relations on the basis of reciprocal equality of treatment. Judge Oda points out that the present case is practically
There is no suggestion of regulating the useof armed force the firstoneinthehistoryoftheCourt inwhichthe Applicant
by one party against the other. attempts to invoke a compromissory clause of a bilateral
treaty as a basis ofthe Court's jurisdiction.He emphasizes
Not only do the provisions of the Treaty concentrateon that the meaning ofthe compromissory clausein a bilateral
the treatment of the nationals of one party in the territory treaty should be considered with great care because, even
of the other. The Treaty contains noneof the treaty provi- if the parties to a bilateral treaty are ready to deferto the
sions that typically do bear on the international use of jurisdiction of the Court by including a compromissoryclause, neither party may be presumed to entrust the evalu- and destructionof the Iranian oil platformsin a chain of
ation of the scope-the object and purpose--elf the treaty eventsthat took place during the Iran/Iraq Waris, as Iran
to a third party withoutits consent, even where a dispute alleges and the Court concludes, a disputeasto the "inter-
asto the interpretationor applicationofthe individual pro- pretation or application" of the 1955 Treaty of Amity
visionsofthetreatyis specifiedinthecompromissoryclause within the meaningof its article XXI(2). In his view,this
contained therein.The subjectof a dispute cannot relateto is certainlynot the case.
the questionof whether essential issuesfallwithinthe com- Judge Oda sees the way in which the Court responds to
prehe:nsivescope--the objectand purpose--of thetreatybut the Iranian Application inthis Judgmentas deriving from
onlyconcernthe "interpretationor application"ofthe provi- a misconception. The Court was requested by Iran to ad-
sionsofthe agreed textofthletreaty.Therangeofthe "inter- judge at this stage thatit hasjurisdiction under the Treaty
pretationorapplication" of a treatyascoveredbythe com- to entertain the dispute occasioned by the destructionof
promissory clausein a bilateral treatyis strictly limited. the platformsby the United States force, butnot to enter-
tain anyclaimsmadeby Iran under any specificarticle-in
Judge Oda contends that, in view of the basic principle this case article (1).
of international justicethat.referralto the Court should be
based upon the consentof sovereign States, neither oneof He continuesto maintain that failureto dismiss Iran's
the parties to ailateraltreaty should be presumedto have Applicationin the present caseinvites a situation inwhich
agreed (and certainly, in fact, never has agreedt)o let the a State could, under the pretext of the violation of any
other party refer unilateral'to the Court a dispute touch- trivial provisionof any treaty containing a compromissory
ing upon the object and purpose of the treaty, as, without clause, unilaterally bring theother State party to the treaty
a mutual understandingon those matters, the treaty itself before the Courton the sole ground that oneof the parties
would not have been concluded. The difference of views contends that a dispute withinthe scopeofthe treatyexists
ofthe two States relatingto the scope-the object and pur- while theother denies it.This would,in his opinion,be no
pose--of atreaty cannotbethesubjectofanadjudicationby morethanthe application of aformoffalse logicfarremoved
the CJourtunlessbothparties have giventheirconsent; such from the real context of such a treaty, and constituting
a disputemay,however,bebroughtto theCourtbya special nothing shortof an abuseof treaty interpretation, so that,
agreement or, alternatively, theremay be an occasion for to quote from his 1986 separate opinionin the case con-
the applicationof the ruleofforumprorogatur;v.The prob- cerningMilitaryandParamilitary Activitiesinandagainst
lem which faces the Court in the present case isto deter- Nicaragua (Nicaragua v. United StatesofAmerica),"the
mine:whether thereal dispute between Iran and the United Court might seem in dangerof inviting a case 'through the
Statas that has arisenas a.result of the latter's attack on back door' ".
Summary of the Order of 12 December 1996