Question of Vice-President Schwebel
In these proceedings, both Parties cite documents from the
ratification processes of treaties of friendship, commerce and
navigation to shed light on their intentions in concluding the
1955 Treaty of Amity, Economie Relations and Consular Rights in
the terms in which it was concluded.
In its Judgment of 22 July 1952, on the Preliminary
Objection of Iran in the Anglo-Iranian Oil Company case, the
Court found what was the intention of Iran in drafting the terms
of its declaration of adherence to the compulsory jurisdiction of
the Court under Article 36, paragraph 2 (I.C.J. Reports 1952, pp.
104-07} .
To what extent, if any, do the Parties in the case now
before the Court find the holdings of the Court in the
jurisdictional phase of the Anglo-Iranian Company case
instructive?
In the 1952 Anglo-Iranian Oil Company case, the Court
decided that the Article 36(2} declaration of astate accepting
·the Court's jurisdiction over certain disputes should be limited
in a certa"in way, even though the text was subject to a different
interpretation. For the Court, the main consideration was
whether the s'tate actually intended to gi ve the Court
jurisdiction to rule on the type of dispute in question, which
'
the Court decided was not the case. In th~ present case, the
(
basic question is whether a dispute concerning the combat
operations of military forces is one which the United States and
Iran intended to be decided by the Court when they concluded the
1955 Treaty. The United States submits that the answer is no.
In addition, the Court's decision in the Anglo-Iranian Oil
Company case reflects a cautious application of the "principle of 2
effectiveness." Although it could have applied such a principle
to find broad jurisdiction over disputes concerning a state, the
Court declined to do so when it was apparent that such an
interpretation was at variance with the intentions of that state
at the time it accepted the Court's jurisdiction.
Finally, the Court's decision confirms that it may properly
consider documents submitted by a government to its parliament
during proceedings for the ratification of a treaty, if the Court
believes that those documents shed light on the intent and
practice of one or more of the parties. In the preserit case,
both parties have called such documents to the Court's attention
for this purpose.
While the instrument at issue in the Anglo-Iranian Oil
··-------·----------.
Company case was a unilateral declaration, the reasoning of ~he
Court is equally applicable in the case now before this Court.
In both cases, the Court has before it an instrument upon which
i ts j urisdiction is purportedly established ... In both cases, i t
.
is appropriate for the Court to assess the ~nderlyii ntnntg of
('
the parties in determining the scope of that jurisdiction. The
Court also used this approach in its judgment of December 18,
1978, in the Aegean Sea Continental Shelf case. In this case,
the Court assessed the intention of Greece, in adopting
reservations toits acceptance of the Court's jurisdiction, by
examining domestic materials, including materials placed before
the Greek parliament. 3
Question of Judge Rosalyn Higgins
Does the United States view that the 1955 Treaty of Amity
affords no basis of jurisdiction in this case depend upon the
contention that the oil platforms in question were being used for
military purposes rather than commercial purposes? If the oil
platforms were in fact dedicated to commercial use, would the
Treaty of Amity thereby afford a basis of jurisdiction?
The United States position that the Court does not have
jurisdiction over the Application filed by the Islamic Republic
of Iran does not rest on our view that the oil platforms were
being used for militaiy purposes at the time of the attacks.
This is a disputed question of fact, the resolution of which
is not necessary to uphold our Preliminary Objection. If this
case were to go to a merits phase, then the United States would
show that these platforms were used for military operations
against neutral vessels. However, in our view, the U.S.
Preliminary Objection would still be valid in the circumstances
here even if the platforms were exclusively1devoted to commercial
use.
The pleadings and oral arguments of the parties show that a
series of inter-connected incidents occurred during this period
in which U.S. or Iranian armed forces, or both, took hostile
action against targets of the other side. These undisputed facts
provide a sufficient factual foundation for the U.S. Preliminary
Objection. The legality of attacks on the oil platforms must be 4
assessed using international rules on the use of armed force and,
as such, fall outside the scope of the 1955 Treaty.
Question of Judge ad hoc Rigaux
According to Iran, the NIOC was still delivering oil to the
United States at the time of the destruction of the cil platforms
which are the subject of the dispute. Were these suppliés
interrupted after President Carter's Executive Order in November
1979? If so, for how long? When were they resumed and when did
they cease?
On November 12, 1979, following the seizure of the U.S.
Embassy in Tehran, President Carter imposed a ban on the import
of Iranian crude oil into the United States (Proclamation 4702).
Order 12282) and oil deliveries resumed within a year. On
October 29, 1987, President Reagan signed Executive Order 12613,
which prohibited the import of all goods or services of Iranian
origin, including oil (although there were rertain exceptions,
such as for petroleum prod~cts refined from Iranian oil in a
third country) .
These actions of the United States illustrate the type of
measures which Article XX(1) (d) of the 1955 Treaty excludes from
the coverage of the remainder of the Treaty -- that is, economie
measures necessary to protect essential security interests (or to
fulfill a party's obligations for the maintenance or restoration 5
of international peace and security). We note that the General
Agreement on Tariffs and Trade 1994 (Article XXI) and the World
Tracte Organization General Agreement on Trade .in Services
(Article XIV bis)· -- agreements that clearly do not regulate the
use of armed force -- also permit parties to take measures to
protect their essential security interests. If the Court should
hold that the U.S. attacks on the oil platforms at issue in this
case do fall within the scope of the provisions of 1955 Treaty,
the United States would then show at a merits phase that the
attacks were necessary to protect its essential security
interests.
'
Written answers of the United States of America to questions put by Judges