76

SEPARATE OPINION OF JUDGE PETRÉN
[Translation ;

To my regret, I am unable to concur in the opinion of the majority
of the Court in respect of the question whether the Chicago Convention
and its annexes authorize India’s appeal in the present case. In my view
they do not, and so I have to set forth my grounds for reaching that con-
clusion. A majority of the judges, however, found that the Court did
have jurisdiction to entertain that appeal, and I therefore felt [ must take
part in the consideration of its merits. In the event, I agree with the ma-
jority that the appeal should fail, but my view is based on reasons which,
while not unrelated to those of the majority, are not identical with them.

I have therefore to append to the Judgment the following separate
opinion.

As the case is.an appeal from a decision taken by the governing body
of an international organization, it is first incumbent upon the Court,
independently of the attitude of the Parties to the dispute, to satisfy itself,
ex officio, that the requirements imposed by the applicable treaty pro-
visions for an appeal to lie have been met.

What characterizes the present case is the fact that the decision of the
ICAO Council from which India has appealed is not a decision on the
merits of the case brought before the Council by Pakistan but a prelimi-
nary decision whereby the Council rejected an objection to its jurisdic-
tion. The question is therefore whether an immediate appeal lies from the
preliminary decision whereby a forum of first instance has affirmed its
own jurisdiction. The right to appeal to this Court from the Council's
decisions rests on Article 84 of the Chicago Convention, which provides
that if any disagreement between two or more contracting States relating
to the interpretation or application of the Convention cannot be settled
by negotiation, it shall, on the application of any State concerned in the
disagreement, be decided by the Council, and that any contracting State
may appeal from the decision of the Council either to an ad hoc arbitral
tribunal or to the Court. The same Article lays down that any such appeal
shall be notified to the Council within 60 days of the latter’s decision.

Article 86 also deals with appeals. It provides, first, that, unless the
Council decides otherwise, decisions by the Council on whether an inter-
national airline is operating in conformity with the provisions of the

34
ICAO COUNCIL (SEP. OP. PETREN) 77

Convention shall remain in effect unless reversed on appeal. It next pro-
vides that on any other matter the decisions of the Council shall, if
appealed from, be suspended until the appeal is decided. Article 86 says
nothing as to the forms and time-limits to be observed in making an
appeal.

In the present case we have to ascertain whether a decision finding
that the Council has jurisdiction to deal with a case must be considered
to bear upon the interpretation or application of the Convention within
the meaning of Article 84 and can therefore be the subject of an appeal.
If the answer is in the affirmative, the question will arise as to whether,
by virtue of Article 86, an appeal can be made immediately from such
a decision, with suspensory effect until the appeal is decided.

There is no cut and dried answer to the first question. The scheme of
the Convention seems to indicate that Article 84 contemplates decisions
on the interpretation or application of articles other than Article 84 itself.
Nevertheless, if the decisions rendered by a forum in a given domain can
be appealed from to another forum, it is surely inherent in the functions
of the forum of appeal to rule, if need be, on the soundness of a decision
whereby the first forum found that it had jurisdiction to handle a dis-
agreement which was alleged to have no place in the domain in question.
Applied to the present case, this consideration leads to the conclusion
that the right of appeal conferred by Article 84 includes the right to
appeal from a decision of the Council affirming its own jurisdiction to
deal with a case as concerning the interpretation or application of the
Convention.

Now it must be asked whether the provisions of Article 86 concerning
the suspensory effect of appeals contemplate any appeals other than those
against the definitive decisions of the Council on the material operating-
conditions of the airlines of contracting States. The exception to the sus-
pensory effect of appeals which is specified at the beginning of Article
86 concerns this category of decisions, which is in itself sufficient to
prompt a doubt as to whether the rest of the Article further contemplates
appeals against decisions on preliminary objections.

It can be shown in several ways that Article 84, in the light of which
Article 86 is to be interpreted, was not so drafted as to take into account
the eventuality of there being decisions by the Council on preliminary
objections. Thus according to Article 84 the decisions of the Council
which are subject to appeal must concern disagreements between two or
more contracting States relating to the interpretation or application of
the Convention which it has not been possible to settle by negotiation.
But a preliminary objection contesting the jurisdiction of the Council to
deal with a case does not concern anything which could constitute the
subject-matter of negotiation between the parties. Moreover, Article 84
permits any contracting State, i.e., not only the original parties to a dis-
pute but every State party to the Convention, to appeal from decisions

35
ICAO COUNCIL (SEP. OP. PETREN) 78

within the field of application of Article 84. But if the Council declares
that it has jurisdiction to deal with an application by State A against
State B, are we to suppose that any other party to the Convention is
authorized by Article 84 to appeal from that decision? It would strain
belief to imagine that the authors of the Convention could ever have
intended to create so very odd a possibility. It is only in regard to the
definitive decision whereby the Council rules on the interpretation or
application of the Convention that States not parties to the original dis-
pute could have any legitimate need to institute appeal proceedings.

It should also be noted that where international air transport is con-
cerned it is obviously important, because of the economic repercussions
in particular, that disputes should be rapidly settled. Hence it would
scarcely be reasonable to suppose that there was any intention of opening
the way to procedures likely to result in considerable delay for the settle-
ment of disputes in this domain. But that is precisely what would have
been the case if Articles 84 and 86 had to be interpreted as authorizing
immediate appeals against decisions whereby the Council declared itself
competent to entertain an application.

Let us begin by considering the first of the hypotheses contemplated
in Article 84 in regard to the organization of appeal proceedings, namely
the constitution of an ad hoc arbitral tribunal. The relevant provisions
are contained in Article 85. If the contracting States, parties to the dis-
pute, cannot agree on the choice of the arbitral tribunal, each of them
is to name an arbitrator and these arbitrators are to name an umpire.
If any of the States has failed to name an arbitrator within three months
of the date of the appeal, an arbitrator is to be named on behalf of that
State by the President of the Council from a list of qualified and available
persons which is to be maintained by the Council. If, within 30 days, the
arbitrators cannot agree on an umpire, the President of the Council is
to designate an umpire from the same list. The arbitrators and the umpire
then constitute an arbitral tribunal, which settles its own rules of proce-
dure, “provided that the Council may determine procedural questions
in the event of any delay which in the opinion of the Council is excessive”.

This last clause is worth quoting, because it serves to underline the
concern to avoid undue delays in the settlement of disputes. Imagine,
therefore, the delay that would result from the suspension of proceedings
before the Council so as to allow a question of jurisdiction to go to arbi-
tration! To the 60 days within which the appeal from the Council's de-
cision would have to be brought might be added more than four months
before the arbitral tribunal was set up and began organizing its proce-
dure. Then if the decision of the arbitral tribunal confirmed the juris-
diction of the Council, and if the Council’s final decision in the case also
gave rise to an appeal, it would be necessary to constitute a second ar-

36
ICAO COUNCIL (SEP. OP. PETREN) 79

bitral tribunal and thereafter to wait for its decision. At that rate, a case
brought before the Council could easily drag on for years.

It would be agreeable to feel able to assume that the second hypothesis
contemplated in Article 84, namely the hearing of the appeal by the In-
ternational Court of Justice, connoted a more expeditious procedure.

However that might be, it seems to me that the protraction of the
proceedings which the accumulation of arbitrations would entail in the
first hypothesis precludes the thought that the authors of the Convention
could have conceived that instrument in a manner so incompatible with
their concern to avoid delays in the settlement of differences.

*

The foregoing considerations have led me to the conclusion that the
provisions of Articles 84 and 86 of the Convention concerning the exer-
cise of a right of appeal, with suspensory effect, from decisions of the
Council on disagreements relating to the interpretation or application
of the Convention are not intended to apply to decisions rendered by
the Council on preliminary objections. It remains nevertheless unthink-
able, as explained above, that there should exist a right of appeal which
did not also connote the right to refer decisions whereby the forum of
first instance found that it had jurisdiction to the forum of appeal.

This amounts to saying that, though the right of appeal instituted by
Article 84 implies as its necessary complement a right to appeal from a
decision of the Council on its own jurisdiction, the Convention fails to
regulate the procedure for exercising the latter right. There is therefore
a gap in the Convention, but it is a gap which is filled by the Rules for
the Settlement of Differences approved by the Council on 9 April 1957.
The Council’s power thus to repair the deficiency of the Convention
emerges from Article 54 of the Convention, which in enumerating the
mandatory functions of the Council includes, under (c), that of deter-
mining its own organization and rules of procedure.

The answer to the question as to whether India’s present appeal is
admissible or not must therefore be sought in the Rules for the Settlement
of Differences.

In these Rules, the provisions on preliminary objections occur in
Chapter III, which is entitled ‘Action Upon Receipt of Applications”.
The Article dealing with preliminary objections is Article 5. According
to Article 5, paragraph 3, the procedure on the merits shall be sus-
pended as soon as a preliminary objection is filed, and the time fixed
for the filing of the respondent’s counter-memoria] will cease to run
“until the objection is decided by the Council”. Paragraph 4 stipulates
that if a preliminary objection is filed the Council, after hearing the

37
ICAO COUNCIL (SEP. OP. PETREN) 80

parties, shall decide the question as a preliminary issue before any further
steps are taken under the Rules.

Nowhere in this Chapter III of the Rules is there any provision sug-
gesting the existence of an appeal from decisions taken by the Council
under this Chapter. It is only in the following Chapter IV, ‘Proceedings,
that provisions on appeals are found, in Article 18. That Article is
preceded within the same Chapter, by others regulating the various
stages of the proceedings on the merits. Those proceedings culminate
in the decision, and to this Article 15 devotes a series of provisions,
among which paragraph 2 (v) requires that the decision should contain
the conclusions of the Council together with its reasons for reaching
them. Paragraph 1 of Article 18 itself contains provisions regarding
the notification of the Council’s decision to the parties in the case and
other contracting States, while it is paragraph 2 which notes that the
decisions on certain disagreements between two or more contracting
States are subject to appeal pursuant to Article 84 of the Convention.
The same paragraph stipulates in fine that any such appeal should be
notified to the Council through the Secretary General within 60 days
of receipt of notification of the decision of the Council.

It should finally be observed that the following two Articles occur
at the end of Chapter VI, entitled ‘General Provisions”:

Article 32

Suspension of the Rules

“Subject to agreement of the parties, any of these Rules may
be varied or their application suspended when, in the opinion of
the Council, such action would lead to a more expeditious or ef-
fective disposition of the case.”

Article 33
Amendments to the Rules
“The present Rules may, at any time, be amended by the Council.
No amendment shall apply to a pending case except with the agree-
ment of the parties.”

Examination of the Rules therefore shows that the preliminary ob-
jections which are not mentioned in the Convention make their appear-
ance in Article 5 of the Rules. That recalls the situation which exists
in regard to the International Court of Justice: the Statute (Art. 36.
para. 6) contains a mere allusion to preliminary objections, which are
however the subject of provisions in the Rules of Court at present in
force (Art. 62). The purpose of such provisions is to ensure that pre-
liminary objections are settled in the framework of a separate procedure
before the proceedings on the merits have advanced beyond the stage
of the first exchange of pleadings. The Council's Rules bear witness
to the same concern by obliging the Council, if any preliminary objec-
tion is raised, to decide the question, described as a preliminary issue,

38
ICAO COUNCIL (SEP. OP. PETREN) 81

before any further steps are taken under the Rules. However, the analogy
with the Rules of the Court, whose proceedings take place within a single
forum without any organ of appeal, goes thus far and no farther.

As to the question whether an isolated appeal may suspend the pro-
ceedings on the merits, the only indication afforded by Article 5 of the
Council’s Rules is the provision of paragraph 3 whereby a preliminary
objection has the effect of causing the time-limit fixed for the filing of
the respondent’s counter-memorial to cease to run until the Council has
decided the objection. That provision, which of course contemplates
the event that the Council should reject the objection, does not envisage
the suspension of the proceedings on the merits beyond the date on which
the Council gives its decision on objection. Otherwise, on the hypothesis
that the decision rejecting the objection might be subject to an isolated
appeal, the date specified as the new starting-point for the proceedings
on the merits ought to have been the date on which the rejection becomes
res judicata, i.e., either the sixtieth day after the decision of the Council
or the date on which any appeal therefrom is dismissed.

The conclusion to which Article 5 points is therefore that the Rules
do not admit of any direct appeal from a decision whereby the Council
rejects a preliminary objection. This conclusion is confirmed by the fact
that the articles concerning the procedure on the merits and appeals
are grouped together in the same chapter, whereas the provisions on
preliminary objections are in another chapter. This must be seen as
an indication that only final decisions rendered at the conclusion of the
proceedings on the merits, the contents of which are prescribed by
Article 15, are subject to appeal by virtue of Article 18.

It is in the Convention, complemented by the Rules of the Council,
that the answer must be sought to the question whether there exists
any right of immediate appeal from a decision by the Council rejecting
an objection to its own jurisdiction. The doctrines and practices which
have evolved with regard to preliminary objections such as are featured
in other international instruments cannot over-ride the relevant pro-
visions of the Chicago Convention and the Rules which complement it.
In this connection, I do not think it irrelevant to draw attention to an
important difference which exists between the context of an objection
to the jurisdiction of the ICAO Council and that of an objection to the
jurisdiction of the International Court of Justice in a case brought
directly before it. As the proceedings in such cases take place before a
single forum, the desirability of avoiding any discussion of the merits
before the objection is decided upon cannot be counter-balanced by the
presumption created against the soundness of the objection through its
dismissal by a forum of first instance. That, on the other hand, is pre-
cisely what can happen in cases that begin before the Council. It ought

39
ICAO COUNCIL (SEP. OP. PETREN) 82

furthermore to be noted that the Court possesses the power to prescribe
interim measures of protection, which can serve to safeguard rights
that would otherwise be jeopardized by procedural delays. But it seems
doubtful, to say the least, whether it could order measures of protection
in a case which only concerned the Council's jurisdiction to entertain an
application. The Council’s own inability to do so would appear beyond
doubt.

The provisions of the Convention and of the Rules for the Settlement
of Differences being what they are, the Council is not permitted to
depart from them, except inasmuch as Article 32 of the Rules authorizes
it, subject to agreement of the parties, to vary any Rule or suspend its
application if, in its opinion, sueh action would be conducive to a more
expeditious or effective disposition of the case.

In the present case, the question of the Council's making use of Article
32 of its Rules did not arise. On the other hand, the minutes of the
meeting held by the Council on 29 July 1971 (Memorial of India, Annex
E) show that, after the Council had given its decision to dismiss India’s
objections to jurisdiction and the representative of India had announced
his Government’s intention to lodge an appeal from that decision,
certain members of the Council asked whether the appeal would have
the effect of suspending the proceedings on the merits before the Council.
These questions remained unanswered at the time, but the subject is
dealt with in a document entitled ‘Notes on Article 86 of the Chicago
Convention relating to Appeals from Decisions of the Council”, which
is appended as Annex C to the Reply of India. This document, dated
9 September 1971, emanates from the Secretary General of ICAO and
is presented as a reply to requests for information submitted by the
President and certain members of the Council. Paragraph 4 of the
document, dealing with the interpretation of the second sentence of
Article 86, affirms, inter alia, that the expression “on any other matter”
denotes only such matters as relate to a decision of the Council rendered
under Article 84. The document goes on to observe that the expression
“decisions of the Council” (i.e., those which would be suspended in the
event of an appeal) is not accompanied by any qualifying words which
would exclude any particular class of decision. A footnote is attached
to this observation, and it begins as follows: “For example, the decision
may be one affirming or negating the jurisdiction of the Council in a
particular matter: see the words ‘shall decide the question’ in Article 5
(4) of the Rules for the Settlement of Differences.”’ The footnote goes
on to mention, by way of example, a number of other classes of deci-
sion, taken under various articles of the Rules, from which, according
to that footnote, an appeal should be possible. Among the decisions
thus referred to are decisions taken under Article 28 whereby the Council
rules that a step taken after the expiration of a time-limit shail be con-
sidered as valid.

The Secretary General, then, has here given a legal opinion on one
of the questions at present in issue. According to that opinion. Article

40
ICAO COUNCIL (SEP. OP. PETREN) 83

86 of the Convention would authorize direct appeals with suspensory
effect even from procedural decisions concerning, for example, time-
limits and also from decisions of the Council on the subject of its own
jurisdiction. But, as will be clear from what I have said above, I do not
feel that an analysis of the relevant provisions of the Convention and
of the Council’s Rules enables one to share that opinion.

If the Council is competent to depart from the provisions of its Rules
only subject to the agreement of the parties and to its having formed the
opinion that to do so would be in the interest of a more expeditious and
effective disposition of the case, it is evident that the parties could not,
by a mere agreement between themselves, open the way to an appeal
for which there was no provision in the texts governing the matter. 4 for-
tiori, there can be no question of a forum prorogatum established by the
filing of an appeal application by one party and the failure of the other
to raise an objection within a given time. On the contrary, it would have
been for the International Court of Justice, as the forum of second in-
stance specified within the scheme of an international treaty, to determine
ex officio, as soon as the application was filed, whether the requirements
for an appeal laid down by the relevant treaty provisions had been satis-
fied.

It should be clear from the foregoing that, as I view the matter, there
would in the present case have emerged from an examination of that
point the conclusion that the appeal was premature and that objections
to the jurisdiction of the Council could only be expounded at the time
of any appeal against its final decision.

During the course of the oral proceedings in the present cvse, allusions
were made to the consequences that would flow from such an interpre-
tation of the Convention and Rules for decisions by the Council accepting
objections to its jurisdiction. But the Court does not at present have to
pronounce upon that very different kind of situation. Moreover, the
acceptance of a preliminary objection represents a final disposition of a
case and, unlike the dismissal of the objection, is not destined to be fol-
lowed by a second decision concerning the interpretation or application
of the Convention.

Having thus set forth my grounds for considering that the present
appeal is not admissible, I have nevertheless to bow before the opposite
position, adopted by the majority, in accordance with which the Court
has declared itself competent to entertain the appeal. That decision of the
Court relates solely to the appeal so far as the jurisdiction of the Council
to deal with the ‘“‘Application” and ‘“‘Complaint” of Pakistan is concerned,
and not to the various charges which India has made regarding the pro-
cedure whereby the Council reached its decision. It is, therefore, neces-
sary to examine only the first of these two points.

In embarking upon this examination, one feels impelled to ask what

41
ICAO COUNCIL (SEP. OP. PETREN) 84

the Council’s decision of 29 July 1971 on India’s objections to jurisdic-
tion really signified. It is a striking fact that the decision is devoid of all
statement of grounds and consists solely in a declaration to the effect
that the Council did not accept the objection. It was in that form that
the decision was notified to the Government of India (Memorial of
India, Annex N). Not only does that highlight all the difference there is
between that decision and those from which, in my view, appeals based
on Article 18 of the Rules and, consequently, Article 84 of the Convention
are intended to be made, but, what is more, the total absence of stated
grounds raises the question in the present instance as to whether the
Council has given a truly exhaustive ruling on the preliminary objections.
The essence of these objections was that India had legal justification to
suspend its treaty relations with Pakistan in the domain of aviation and
had in fact suspended them, which deprived the Council of jurisdiction
to deal with the application of Pakistan. Now the rejection of the objec-
tions could only have been based on one of the two following grounds:
either the Council considered that the question of India’s legal justifi-
cation to suspend its treaty relations with Pakistan constituted a question
of interpretation or application of the Treaties, covered by the wording
of Article 84 of the Convention; or the Council was not of that opinion
but considered that the circumstances relied upon by India were not such
as to authorize it to suspend treaty relations. These two grounds are
mutually incompatible. If the question whether India was justified in
suspending treaty relations was a question relating to the interpretation
or application of the Treaties such as ought to be examined by the Coun-
cil pursuant to Article 84 of the Convention, the Council could not dis-
pose of that question by ruling on the objections. On the other hand,
if the question of the suspension of treaty relations lay outside the field
of application of Article 84, the Council had to examine it in the course
of the proceedings to which the preliminary objections gave rise and could
not, in ruling on those objections, espouse the view that that question
was governed by Article 84.

As the Council did not indicate its choice between these two mutually
exclusive grounds of decision, one cannot consider that it has really given
a definitive decision on the preliminary objections raised by India. One
may legitimately believe that if, in a similar situation, the International
Court of Justice had not carried its examination of a preliminary objec-
tion any farther, it would have joined it to the merits under the Rules of
Court at present in force. The Rules of the Council do not mention the
possibility of the joinder to the merits of a preliminary objection, and
that perhaps explains why the Council expressed itself as it did in its
decision of 29 July 1971. However, though the Council is obliged by
Article 5, paragraph 4, of its Rules to deal with preliminary objections
as preliminary issues, one may not overlook the fact that an objection
to the jurisdiction of a forum may raise one or more questions which
are so closely bound up with the merits of the case that it is necessary
to adopt a position on at least part of the merits before being able to

42
ICAO COUNCIL (SEP. OP, PETREN) 85

reply to the objection. In this connection, it should be noted that when
the International Court of Justice revised its own Rules in 1972, it eli-
minated the old rule authorizing the joinder of preliminary objections to
the merits only by substituting for it a provision, in the new Article 67,
whereby, if an objection raised as a preliminary objection does not possess
an exclusively preliminary character, the further proceedings will take
their course without the objection having been ruled upon. Now one has
to realize that the Council may be faced with similar situations requiring
an identical procedure. The absence from its Rules of any provision for
such procedure must be considered as a lacuna. In the present instance
the Council has covered the gap by declaring, without giving any grounds,
that it did not accept India’s objection. The real nature of the Council's
decision appears to me to be highlighted by the fact that it does not dis-
pense the Council from the duty of examining, at the merits stage, the
validity of the arguments relied on by India in support of its objections
to the Council’s jurisdiction, i.e., in support of the contention that the
treaty relations as between the Parties are suspended. The year of appeal
proceedings brought to an end by the present Judgment has not changed
the situation thus created by the Council’s decision in the slightest.

It may be wondered whether the majority of the Court, if the Council
had formally declared that it joined the objections to the merits, would
have considered such a decision as an interpretation or application of the
Convention, susceptible to appeal, or as a procedural decision from
which no appeal lay. But in the present context it would be pointless to
pursue that question.

As [ personally consider that the Council’s decision was such as to
produce the same effects as a joinder so far as the proceedings on the
merits were concerned, | am impelled to ask myself whether a decision
of that kind was justified in the circumstances. In that respect, I find
that there exists between the questions of interpretation and application
of the Treaties raised by both the “‘Application” and the “Complaint”
of Pakistan and the question of the suspension of the Treaties, as pre-
sented by India in support of its objections, a relationship which is so
close that the decision of the Council seems to me to have been justified.
Without feeling any need to analyse the various aspects of that relation-
ship, which the Judgment has been at such pains to detail, I therefore
concur in the conclusion of the Judgment that India’s appeal must be
rejected.

(Signed) S. PETREN.

43


                     65

                             SEPARATE OPINION OF JUDGE AD HOC BROWER

                       Clean hands — Incomplete references in support of the Respondent’s
                     argument — Judge Hudson’s individual opinion — Limitation not satisfied.

                        Article XX of the Treaty of Amity — Article XX is not a jurisdictional limitation
                     because not self-judging — Parties could have drafted Article XX as a self-judging
                     clause — Other treaties on commercial matters contain self-judging clauses.

                        Sovereign immunity — Treaty of Amity governs economic relations and consular
                     rights — Treaty of Amity expressly grants consular immunities — Expressio
                     unius est exclusio alterius — Interpretation based on Article 31, paragraph 3 (c),
                     of the Vienna Convention on the Law of Treaties would amount to rewriting the
                     Treaty of Amity — Words used in the Treaty of Amity further strengthen the
                     conclusion that the Treaty is of a purely commercial nature — A contrario
                     interpretation is of no avail.
                        The third objection to jurisdiction is of an exclusively preliminary character —
                     Bank Markazi’s basic function as Iran’s Central Bank determines whether or not
                     it is a “company” under the Treaty of Amity — Iran adduced no proof that
                     Bank Markazi actually engaged in commercial activities — Under Iran’s Monetary
                     and Banking Act 1972 as amended Bank Markazi is not authorized to engage in
                     commercial activity — Iran’s pleadings contain few arguments that Bank Markazi
                     engaged in commercial activity — All immune State organs and international
                     organizations carry out some degree of ancillary commercial activity required for
                     their support and maintenance — Iran has consistently argued in United States’
                     courts that Bank Markazi carries out strictly sovereign activities — Iran cannot
                     “blow hot and cold at the same time” — Court had before it all the facts necessary
                     to decide whether Bank Markazi is a “company” within the meaning of the Treaty
                     of Amity.

                        1. I agree with the Court’s conclusions on the first and second objec-
                     tions to jurisdiction, and on both objections to admissibility. I could not
                     vote, however, in favour of the operative paragraph concerning the third
                     objection to jurisdiction. First, I wish to highlight certain points of agree-
                     ment with the majority, but on which the Judgment did not elaborate at
                     length. Second, I intend to set out the reasons for my partial dissent.

                                                     I. Clean Hands

                       2. In the oral proceedings, the United States referred to the words of
                     Professor John Dugard, seven times judge ad hoc of the Court, acting in

                     62

3 CIJ1158.indb 120                                                                                21/10/19 10:25

                     66 	              certain iranian assets (sep. op. brower)

                     his capacity as Special Rapporteur of the International Law Commission
                     (hereinafter “ILC”) on diplomatic protection. The United States quoted
                     Professor Dugard’s statement according to which it is :
                          “difficult to sustain the argument that the clean hands doctrine does
                          not apply to disputes involving direct inter‑State relations. States have
                          frequently raised the clean hands doctrine in direct inter‑State claims
                          and in no case has the ICJ stated that the doctrine is irrelevant to
                          inter‑State claims.” 1

                     The United States also cited a writing of former President of the Court
                     Judge Schwebel which it argued should be understood as confirming that
                     “a number of States have maintained the vitality and applicability of the
                     principle of clean hands in inter‑State disputes and that the Court has not
                     rejected the principle” 2. Iran simply commented that there exist serious
                     doubts concerning the existence and the relevance of the clean hands
                     doctrine 3.
                        3. The Court has not commented on these references, but both Profes-
                     sor Dugard and Judge Schwebel were cited incompletely. In his contribu-
                     tion on the clean hands doctrine, Judge Schwebel had concluded that
                     “[w]hether indeed the principle of clean hands is a principle of contempo-
                     rary international law is a question on which opinion is divided” 4.
                     Judge Schwebel also made reference to the work of Professor Dugard as
                     ILC Special Rapporteur, especially to the latter’s statement that evidence
                     in favour of the clean hands doctrine is “inconclusive” 5. Professor Dugard
                     himself was cautious as to the existence and relevance of that doctrine in
                     inter‑State dispute settlement. Although he maintained that the clean
                     hands doctrine may apply to inter‑State relations 6, his remarks were
                     made in the context of a study on diplomatic protection, of which the
                     present dispute is not an example. Furthermore, Professor Dugard con-
                     cluded his report with the words of Judge Schwebel to the effect that “the
                     evidence in favour of the clean hands doctrine is inconclusive” 7. Thus, a
                     complete reading of the references cited to support the Respondent’s

                         1 CR 2018/28, p. 56, para. 82 (Bethlehem). See John Dugard, Sixth Report on Diplo-

                     matic Protection, UN doc. A/CN.4/546 (11 August 2004), p. 5, para. 6.
                         2 CR 2018/28, p. 56, para. 82 (Bethlehem). See Stephen M. Schwebel, “Clean Hands,

                     Principle”, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International
                     Law (Oxford University Press, 2012), Vol. II, pp. 232‑235.
                         3 CR 2018/31, pp. 51-52, paras. 35-37 (Pellet).
                         4 Schwebel, supra note 2, p. 233, para. 3.
                         5 Ibid., p. 234, para. 13.
                         6 Dugard, supra note 1, para. 6.
                         7 Ibid., para. 18. Judge Crawford, then ILC Special Rapporteur on State responsibility,

                     stated that the clean hands doctrine had been invoked before international tribunals,
                     but rarely applied. See “Draft Articles on the Responsibility of States for Internation-
                     ally Wrongful Acts with Commentaries”, Yearbook of the International Law Commission
                     (YILC), 2001, Vol. II, Part Two, p. 72, para. 9.

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                     unclean hands argument shows that, in fact, they provide scant support
                     for that argument.

                        4. Furthermore, in its preliminary objections, the United States referred
                     to Judge Hudson’s individual opinion in Diversion of Water from the
                     Meuse (Netherlands v. Belgium) 8. According to the United States,
                     Judge Hudson considered that the Court may apply principles of equity
                     as part of international law, one of which is “representative of the clean
                     hands doctrine” 9. In its observations, Iran responded that Judge Hud-
                     son’s comments “dealt not with the clean hands principle but, more gen-
                     erally, with the principle of equity” 10. Moreover, Iran commented on the
                     2007 arbitral award in Guyana v. Suriname, which, in turn, elaborated on
                     the clean hands doctrine by reference to Judge Hudson’s individual opin-
                     ion. On the basis of the Guyana v. Suriname award, Iran contended that
                     “[t]he Claimant’s conduct must relate to the same reciprocal obligation
                     on which it bases its claim” 11, and, in relation to the United States’ clean
                     hands argument, that the United States itself “has not even claimed that
                     the accusations upon which it bases its assertion that Iran has unclean
                     hands amount to an ongoing violation of Iran’s obligations under the
                     Treaty of Amity” 12. At the oral proceedings, the United States did not
                     mention Judge Hudson’s individual opinion, while Iran added that
                     Judge Hudson’s views related to the merits of a case and not the admis-
                     sibility of an application 13.

                       5. In the relevant part of his individual opinion, Judge Hudson wrote
                     that :
                          “[i]t would seem to be an important principle of equity that where
                          two parties have assumed an identical or a reciprocal obligation, one
                          party which is engaged in a continuing non‑performance of that
                          obligation should not be permitted to take advantage of a similar
                           non‑performance of that obligation by the other party. The principle
                           finds expression in the so‑called maxims of equity which exercised
                           great influence in the creative period of the development of the
                           Anglo‑American law. Some of these maxims are, ‘Equality is equity’;

                         8 Diversion of Water from the Meuse (Netherlands v. Belgium), Judgment, 1937,

                     P.C.I.J., Series A/B, No. 70, individual opinion by Mr. Hudson, p. 77.
                         9 Preliminary Objections of the United States (POUS), p. 61, para. 6.37.
                         10 Observations and Submissions of Iran on the Preliminary Objections of the

                     United States (OSI), p. 92, para. 8.8.
                         11 Ibid., para. 8.19. Iran cited the Award in the Arbitration regarding the delimitation

                     of the maritime boundary between Guyana and Suriname of 17 September 2007 (Guyana v.
                     Suriname); United Nations, Reports of International Arbitral Awards (RIAA), Vol. XXX,
                     pp. 117-118, paras. 420-421.
                         12 OSI, pp. 97‑98, para. 8.20.
                         13 CR 2018/31, pp. 52‑53, para. 39 (Pellet).

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                               ‘He who seeks equity must do equity’. It is in line with such maxims
                               that ‘a court of equity refuses relief to a plaintiff whose conduct in
                               regard to the subject‑matter of the litigation has been improper’ . . .

                                  The general principle is one of which an international tribunal
                               should make a very sparing application. It is certainly not to be
                               thought that a complete fulfilment of all its obligations under a treaty
                               must be proved as a condition precedent to a State’s appearing before
                               an international tribunal to seek an interpretation of that treaty. Yet,
                               in a proper case, and with scrupulous regard for the limitations which
                               are necessary, a tribunal bound by international law ought not to
                               shrink from applying a principle of such obvious fairness.” 14

                     Thus, Judge Hudson did not write specifically about the clean hands doc-
                     trine, but more generally addressed principles of equity applicable by
                     international courts and tribunals. Notably, he also commented that
                     “[t]he general principle [of equity] is one of which an international tribu-
                     nal should make a very sparing application” 15, while at the same time
                     urging that “a tribunal bound by international law ought not to shrink
                     from applying a principle of such obvious fairness” 16 if to do so comports
                     with “scrupulous regard for the limitations which are necessary” 17.

                        6. The limitations to which Judge Hudson referred included “that
                     where two parties have assumed an identical or a reciprocal obligation” 18
                     and that “one party . . . is engaged in a continuing non‑performance of
                     that obligation” 19 while, at the same time, there is “a similar non‑perfor-
                     mance of that obligation by the other party” 20. The United States admit-
                     ted, however, that this limitation was “not precisely the circumstances of
                     this case” 21, and instead focused its clean hands argument on a broader
                     range of alleged violations by Iran of international law rules not set forth
                     in the Treaty of Amity.
                        7. Therefore, leaving aside the issue of the existence of the clean hands
                     doctrine and its possible content, the United States, relying on Judge Hud-
                     son’s individual opinion, admittedly did not meet its central “limitation”.
                     For all these reasons, I could not accept the “clean hands” objection to
                     admissibility.

                          14 Diversion of Water from the Meuse, supra note 8, p. 77.
                          15 Ibid.
                          16 Ibid.
                          17 Ibid.
                          18 Ibid.
                          19 Ibid.
                          20 Ibid.
                          21 POUS, para. 6.37, p. 61, n. 248.

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                                       II. Article XX of the Treaty of Amity

                        8. The Court has rejected the argument that Article XX of the Treaty
                     of Amity limits the scope of its jurisdiction ratione materiae without much
                     discussion, relying on the fact that it already had considered and rejected
                     that argument in Oil Platforms (Islamic Republic of Iran v. United States
                     of America) 22. The Court also noted that the same argument had been
                     rejected earlier in Military and Paramilitary Activities in and against Nica-
                     ragua (Nicaragua v. United States of America) 23, which concerned a sim-
                     ilarly worded article in the Nicaragua-United States Treaty of Friendship,
                     Commerce and Navigation.

                        9. I believe, however, that the Court could have come to the same con-
                     clusion independently of its previous jurisprudence. It is my view that
                     unless Article XX of the Treaty of Amity were self‑judging it only could
                     raise an issue for the merits. Self‑judging clauses limiting the scope of trea-
                     ties on economic relations are older than the Treaty of Amity. The para-
                     digmatic example is Article XXI, paragraph (b), of the 1947 General
                     Agreement on Tariffs and Trade (hereinafter “GATT”) 24, under which
                     “[n]othing in this Agreement shall be construed . . . to prevent any con-
                     tracting party from taking any action which it considers necessary for the
                     protection of its essential security interests”. Under this provision, it is the
                     State party to the GATT that is entitled to decide whether “it considers” a
                     course of action necessary for the protection of its “essential security
                     interests” 25. The same provision was subsequently included in Arti-
                     cle XIVbis, paragraph 1 (b), of the General Agreement on Trade in Ser-
                     vices (hereinafter “GATS”) 26. The manner in which Article XXI of the
                     GATT and Article XIVbis of the GATS are worded is clearly different
                     from the manner in which Article XX of the Treaty of Amity is drafted.
                        10. In 1946, nearly a decade before concluding the Treaty of Amity,
                     the United States had accepted the Court’s compulsory jurisdiction under
                     Article 36, paragraph 2, of the Statute. The reservation attached to its
                     declaration provided that the Court would not have compulsory jurisdic-
                     tion over “[d]isputes with regard to matters which are essentially within
                     the domestic jurisdiction of the United States of America as determined
                     by the United States of America” 27. In 1955, the United States thus was
                     very well aware of, and capable of drafting, self‑judging clauses, which

                        22 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary

                     Objection, Judgment, I.C.J. Reports 1996 (II), pp. 811-812, paras. 20-21.
                        23 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.

                     United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 115-116,
                     paras. 221-222, and pp. 135-136, para. 271.
                        24 United Nations, Treaty Series (UNTS), Vol. 55, p. 187.
                        25 Panel Report, United States-Export Restrictions (Czechoslovakia) (1949), GATT/

                     CP.3/SR.22, 8 June 1949.
                        26 UNTS, Vol. 1869, p. 185.
                        27 Ibid., Vol. 1, p. 10.

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                     strongly suggests that, had the intention been that of making Article XX
                     of the Treaty of Amity self‑judging, the United States and Iran would
                     have done so. The United States, however, manifested no such intention,
                     even on its own part, while negotiating with Iran, according to the draft-
                     ing history of the Treaty of Amity that has been made available to the
                     Court in this proceeding.

                        11. Clauses similar to Article XX of the Treaty of Amity have been
                     included in certain bilateral investment treaties (hereinafter “BITs”). By
                     way of example, the India-Mauritius BIT contains a provision which
                     states that :
                          “[t]he provisions of this Agreement shall not in any way limit the right
                          of either Contracting Party to apply prohibitions or restrictions of
                          any kind or take any other action which is directed to the protection of
                          its essential security interests, or to the protection of public health or
                          the prevention of diseases in pests and animals or plants”.

                     Referring to the Court’s jurisprudence, an arbitral tribunal has recently
                     interpreted this provision not to be self‑judging 28.
                        12. I note, however, that, in paragraph 123 of the Judgment, the Court
                     has commented that the United States’ allegations adduced in support of
                     its clean hands argument “could, eventually, provide a defence on the
                     merits”.

                                                III. Sovereign Immunity

                       13. I agree with the Court’s reasoning in paragraphs 48-80 of the Judg-
                     ment. I find, however, that there are a number of additional reasons why
                     the claims of Iran relating to the alleged violations of sovereign immunity
                     by the United States cannot fall within the Court’s jurisdiction ratione
                     materiae.
                       14. The Treaty of Amity governs two distinct substantive areas of
                     Iran-United States relations : economic relations (Arts. II-XI) and con-
                     sular rights (Arts. XII-XIX). Consular immunities are expressly regulated
                     by numerous provisions of the Treaty of Amity. Article XIII, para-
                     graph 1, states that “[c]onsular officers and employees shall enjoy the
                     privileges and immunities accorded to officers and employees of their
                     rank or status by general international usage”, while Articles XIV-XVI
                     govern matters of taxation, tax exemptions, and immunity from the host
                     State’s taxation. Article XIV, paragraph 2, for example, states that :

                       28 CC/Devas (Mauritius) Ltd. et al. v. Republic of India, Award on Jurisdiction and

                     Merits, 25 July 2016, p. 58, paras. 218-219.

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                               “[t]he baggage, effects and other articles imported exclusively for the
                               personal use of consular officers and diplomatic and consular employ-
                               ees and members of their families residing with them, who are nation-
                               als of the sending state and are not engaged in any private occupation
                               for gain in the territories of the receiving state, shall be exempt from
                               all customs duties and internal revenue or other taxes imposed upon
                               or by reason of importation” 29.

                     Article XV, paragraph 2, states that “[l]ands and buildings situated in the
                     territories of either High Contracting Party, . . . which are used exclu-
                     sively for governmental purposes . . ., shall be exempt from taxation of
                     every kind”. Article XVI, paragraph 1, provides that “consular officers
                     and employees, who . . . are not engaged in private occupation for gain
                     within the territories of the receiving state, shall be exempt from all taxes
                     or other similar charges”. Article XVIII further provides that “[c]onsular
                     officers and employees are not subject to local jurisdiction for acts done
                     in their official character and within the scope of their authority”. Grants
                     of consular immunities are stated expressly and repeatedly to attach solely
                     to official consular activities.

                        15. These express grants of immunities for the purposes of consular
                     and diplomatic relations stand in stark contrast to the total absence of
                     any express grant of immunity for any other purpose, including in respect
                     of economic relations. These explicit and comprehensive grants of con-
                     sular and diplomatic immunities strongly indicate that, had Iran and the
                     United States intended for the Treaty of Amity also to grant immunity to
                     State entities, they would have done so expressly. This results from appli-
                     cation of the established canon of interpretation expressio unius est exclu-
                     sio alterius.
                        16. I thus agree with the argument of the United States that “[h]ad the
                     Parties chosen to codify sovereign immunity protections in this commer-
                     cial treaty, they would have done so simply and directly” 30. Vague and
                     indirect references to general international law in the Treaty of Amity’s
                     articles on economic relations are insufficient to remedy the complete
                     absence of express provisions conferring immunities on State entities.

                        17. Iran also contended, in accordance with Article 31, para-
                     graph 3 (c), of the Vienna Convention on the Law of Treaties (hereinaf-
                     ter “VCLT”) 31, that “the provisions of the 1955 Treaty of Amity must be

                        29 Note that Article XIV, paragraph 3, of the Treaty of Amity also refers to “diplo-

                     matic . . . employees”, and Article XIV, paragraph 1, refers to “diplomatic office”.
                     Article XVI, paragraph 3, refers to “diplomatic officers and employees”. These provisions
                     further confirm that the Treaty excludes any and all immunities of State entities.
                          30   POUS, p. 80, para. 8.7.
                          31   UNTS, Vol. 1155, p. 331.

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                     interpreted taking into account relevant treaty obligations, rules of cus-
                     tomary international law and general principles of international law” 32.
                     In the context of the present case, which is characterized by the complete
                     absence from the Treaty of Amity of rules addressing immunities of State
                     entities, adopting the approach pleaded by Iran would amount to rewrit-
                     ing the text of the Treaty of Amity itself. It is not the Court’s role to do
                     so. Although the Court has not commented explicitly on Article 31, para-
                     graph 3 (c), of the VCLT, its findings on the second preliminary objec-
                     tion to jurisdiction are consistent with my view of Iran’s argument based
                     on systemic interpretation.

                        18. Furthermore, the exclusively commercial nature of the Treaty of
                     Amity, elaborated in paragraphs 53-80 of the Judgment, is further
                     strengthened by the fact that the Treaty of Amity refers to the rights of
                     “enterprises” 13 times (Arts. II, para. 1 ; IV, para. 1 ; IV, para. 4 ;
                     XI, para. 1 ; XI, para. 3 ; XI, para. 4 ; and XX, para. 4) ; to “trade”, in the
                     context of trade in goods and services, six times (Arts. II, para. 1 ; V,
                     para. 1 ; VIII, para. 3 (b) ; VIII, para. 5 ; VIII, para. 6 ; and X, para. 3) ;
                     to “products” nine times (Arts. VIII, para. 1 ; VIII, para. 6 ; IX, para. 3 ;
                     and X, para. 4) ; to “goods and services” (Art. VII, para. 1) ; and to
                     “investing, a substantial amount of capital”, “investment of capital” and
                     “investing a substantial amount of capital” three times (Arts. II, para. 1 ;
                     VII, para. 3 ; and XX, para. 4). Beyond those references, Article X, para-
                     graph 1, refers to “freedom of commerce and navigation” ; Article X,
                     paragraph 3, refers to “cargoes”, as well as to “places and waters . . .
                     open to foreign commerce” ; and Article X, paragraph 4, refers to “duties”
                     and “administration of the customs”.

                        19. Additional support for the Court’s determination that the Treaty
                     of Amity is essentially commercial in nature is supplied by Article XXII
                     of the Treaty itself, which provides that it “shall replace” two earlier trea-
                     ties between Iran and the United States, namely “(a) the provisional
                     agreement relating to commercial and other relations, concluded at Teh-
                     ran May 14, 1928” and “(b) the provisional agreement relating to per-
                     sonal status and family law, concluded at Tehran July 11, 1928”. A review
                     of the first of these treaties 33 reveals that it had set up a “regime to be
                     applied to the Commerce [of the States parties to it]”, which applied
                     most‑favoured‑nation status to “merchandise”, “imports”, “exports”,
                     “duties and charges affecting commerce”, “transit warehousing”, “facili-
                     ties accorded to commercial travelers’ samples”, “commodities”, and
                     “tariffs” 34. Like the Treaty of Amity, the 1928 provisional commercial

                          32
                           Memorial of Iran (MI), para. 3.14.
                          33
                           Treaties and Other International Agreements of the United States of America, 1776-
                     1949, Vol. 8, (Germany‑Iran), Washington, DC, Department of State 1968, pp. 1263-1271.
                        34 Ibid., p. 1264, para. 3, and pp. 1266-1267, para. 3.

                     69

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                     treaty it “replace[d]” 35 was clearly concerned with free‑market commer-
                     cial activity, and contained no indication that it encompassed protection
                     of sovereign immunity of State entities.

                        20. Iran also relied on an a contrario reading of Article XI, para-
                     graph 4, of the Treaty of Amity. It argued that its express waiver of
                     immunity for “publicly owned or controlled” enterprises “engag[ing] in
                     commercial, industrial, shipping or other business activities” 36 “confirms
                     by strong implication the existence of a Treaty obligation that . . . immu-
                     nity must be upheld” 37 in respect of State entities engaging in activities
                     jure imperii. In support of its a contrario argument, Iran relied on the
                     Court’s 2016 Judgment in Question of the Delimitation of the Continental
                     Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from
                     the Nicaraguan Coast (Nicaragua v. Colombia) 38. In that Judgment, the
                     Court referred to two earlier decisions, which Iran omitted to mention in
                     its submissions 39. None of the three cases on which Iran relied, however,
                     supports its a contrario argument.

                        21. S.S. “Wimbledon” arose out of Germany’s failure on 21 March
                     1921 to allow passage through the Kiel Canal of the named ship, laden
                     with munitions and artillery stores destined for the Polish Naval Base at
                     Danzig, on the grounds of Germany’s neutrality towards the then ongo-
                     ing Russo‑Polish War of 1920-1921. The refusal of passage was found by
                     the Permanent Court of International Justice (hereinafter “PCIJ”) to
                     have violated Article 380 of the Treaty of Versailles, which provided that
                     “[t]he Kiel Canal and its approaches shall be maintained free and open to
                     the vessels of commerce and of war of all nations at peace with Germany
                     on terms of entire equality”. Article 380 was the first Article in Part XII,
                     Section VI of that Treaty, which section consisted of just seven articles
                     (Arts. 380-386) and was entitled “Clauses Relating to the Kiel Canal”.
                     Articles 381-386 were described by the PCIJ as “provisions intended to
                     facilitate and regulate the exercise of this right to free passage”. The
                     Applicants argued that Article 380 was entirely clear, adding as a second
                     argument, however, that Article 380’s claimed import was strengthened
                     by “analogy” to the further Articles 381-386. The PCIJ did not hesitate to
                     rule at the beginning of its analysis that “the terms of article 380 are cat-

                          35
                           Treaty of Amity, Art. XXII, para. 1.
                          36
                           Ibid., Art. XI, para. 4.
                          37
                           OSI, p. 54, para. 5.13.
                        38 MI, para. 5.8, note 246; CR 2018/31, p. 24, para. 43 (Wordsworth). See Question

                     of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond
                     200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary
                     Objections, Judgment, I.C.J. Reports 2016 (I), p. 116, para. 35.
                        39 S.S. “Wimbledon”, Judgments, 1923, P.C.I.J., Series A, No. 1, pp. 23-24; Territorial

                     and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for Permission to
                     Intervene, Judgment, I.C.J. Reports 2011 (II), p. 432, para. 29.

                     70

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                     egorical and give rise to no doubt” 40. Much later in its Judgment, how-
                     ever, the PCIJ, having distinguished Articles 380-385 from separate
                     sections of Part XII of the Treaty of Versailles dealing strictly with
                     “inland navigable waterways”, added the following support for its deci-
                     sion, rejecting the Applicants’ supplementary “by analogy” argument :

                                  “The idea which underlies Article 380 and the following arti-
                               cles [381-386] of the Treaty [of Versailles] is not to be sought by draw-
                               ing an analogy from these provisions but rather by arguing a contrario
                               [impliedly by contrast with the ‘inland navigable waterways’ terms
                               elsewhere in Part XII of the Treaty of Versailles], a method of argu-
                               ment which excludes them.” 41

                     Thus the PCIJ made it clear that an a contrario interpretation yields to
                     the plain language of a treaty. The a contrario argument of Iran in the
                     present case, which sought to imply an unexpressed right from an express
                     contrasting provision, was a pale version of a contrario by comparison to
                     the Judgment in S.S. “Wimbledon”, in which that technique of interpreta-
                     tion was applied to oppose the express Kiel Canal provisions of the
                     Treaty of Versailles to contrasting express provisions contained in that
                     Treaty governing other waterways.

                        22. In the 2011 Judgment on Honduras’s Application to intervene in
                     Territorial and Maritime Dispute (Nicaragua v. Colombia) the Court
                     stated that
                               “[i]f it is permitted by the Court to become a party to the proceedings,
                               the intervening State may ask for rights of its own to be recognized
                               by the Court in its future decision, which would be binding for that
                               State in respect of those aspects for which intervention was granted,
                               pursuant to Article 59 of the Statute. A contrario . . . a State permit-
                               ted to intervene in the proceedings as a non-party ‘does not acquire
                               the rights, or become subject to the obligations, which attach to the
                               status of a party, under the Statute and Rules of Court, or the general
                               principles of procedural law’.” 42
                     In that 2011 Judgment, the Court was not interpreting a treaty provision
                     a contrario, as Iran requested it to do in the present case. Instead, the
                     Court was developing its own jurisprudence on Article 62 of the Stat-
                     ute 43, as the distinction between party intervenor and non-party interve-

                          40S.S. “Wimbledon”, supra note 39, p. 22.
                          41Ibid., pp. 23-24.
                         42 Territorial and Maritime Dispute, supra note 39, p. 432, para. 29.
                         43 Under Article 62 of the Statute, “a State [which] consider[s] that it has an interest of

                     a legal nature which may be affected by the decision in the case . . . may submit a request
                     to the Court to be permitted to intervene”.

                     71

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                     nor is not expressed in the Statute itself, but results from the Court’s own
                     interpretation of Article 62 in Land, Island and Maritime Frontier Dispute
                     (El Salvador/Honduras) 44.

                        23. In addition, in Nicaragua v. Colombia the Court rejected Colom-
                     bia’s a contrario argument and found that an a contrario interpretation
                     “is only warranted . . . when it is appropriate in light of the text of all the
                     provisions concerned, their context and the object and purpose of the
                     treaty” 45. In paragraph 65 of the present Judgment, however, the Court
                     has recognized that, “in keeping with the object and purpose of the Treaty
                     [of Amity], [Article XI, paragraph 4,] pertains only to economic activities
                     and seeks to preserve fair competition among economic actors operating
                     in the same market”. In its Judgment, the Court also states that the con-
                     text of various provisions of the Treaty of Amity 46, including Article XI,
                     paragraph 4 47, shows their eminently commercial character. Conse-
                     quently, to accept Iran’s a contrario argument would run counter both to
                     the context of Article XI, paragraph 4, and to the object and purpose of
                     the Treaty of Amity.

                                           IV. Bank Markazi as a “Company”

                       24. Unfortunately, the Court has concluded that the third objection to
                     jurisdiction, namely that Bank Markazi cannot be regarded as a “com-
                     pany” within the meaning of Article III, paragraph 1, of the Treaty of
                     Amity, is not exclusively preliminary in character, and thus has reserved
                     the decision on this issue for the merits stage of the proceedings. I concur
                     entirely with the joint separate opinion of Judges Tomka and Crawford.
                     The Court indeed “ha[d] the necessary information about Bank Markazi
                     to decide the question at this stage” 48.

                        25. As that opinion points out, “[b]oth Parties have had the opportu-
                     nity to put forward their arguments in relation to whether Bank Markazi
                     is a ‘company’ for the purpose of the Treaty of Amity” 49. It was incum-
                     bent upon Iran at this preliminary stage of the proceedings to produce
                     evidence supporting its claimed entitlement to immunity. As the Court
                     pointedly has noted in paragraph 94 of the Judgment, however, “the
                     Applicant has made little attempt to demonstrate that, alongside the sov-
                     ereign functions which it concedes, Bank Markazi engages in activities of
                     a commercial nature”. The Court’s expression “little attempt” is in truth
                        44 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application for

                     Permission to Intervene by Nicaragua, Judgment, I.C.J. Reports 1990, p. 92.
                        45 Question of the Delimitation of the Continental Shelf, supra note 38, p. 116, para. 35.
                        46 Judgment, paras. 59 (on Article IV), 71 and 93 (on Article III).
                        47 Ibid., para. 66.
                        48 Judgment, joint separate opinion of Judges Tomka and Crawford, para. 2.
                        49 Ibid., para. 10.

                     72

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                     exceedingly charitable, as Iran has done nothing whatsoever, either gener-
                     ally or with respect to its presence in the United States at the critical time,
                     to provide even a scintilla of an indication that Bank Markazi has engaged
                     anywhere in commercial activity.

                        26. Bank Markazi’s legislative constitution, the Monetary and Banking
                     Act 1972 as amended (hereinafter “1972 Act”), produced to the Court by
                     Iran, nowhere authorizes such activity. It states that Bank Markazi acts
                     exclusively as the Central Bank of Iran, and is at all times subject to the
                     control of Iran’s Government 50. Article 10 of the 1972 Act provides that
                     Bank Markazi “shall have the task of formulating and implementing mon-
                     etary and credit policies on the basis of the general economic policy of the
                     State” (para. (a)), and that its “objectives . . . are to maintain the value of
                     the currency and equilibrium in the balance of payments, to facilitate trade
                     transactions, and to assist the economic growth of the country” (para. (b)).
                     Articles 11-14 of the 1972 Act determine Bank Markazi’s functions, which
                     include: “[i]ssuing notes and coins” (Art. 11 (a)), “[s]upervising over banks
                     and credit institutions” (Art. 11 (b)), “[e]xercising control over gold trans-
                     actions” (Art. 11 (d)), “[k]eeping account[] of ministries, government and
                     government‑affiliated institutes, governmental companies and municipali-
                     ties” (Art. 12 (a)) and setting interest rates (Art. 14 (4)). In accordance
                     with Article 17 (a) of the 1972 Act, Bank Markazi’s General Meeting is
                     composed of Cabinet‑level ministers, and the President of Iran appoints
                     the Bank’s Governor. The 1972 Act nowhere empowers Bank Markazi to
                     engage in any “commercial activity”.

                       27. Furthermore, beyond the text of the 1972 Act itself, the thousands
                     of pages encompassed by Iran’s written and oral submissions include only
                     the following scraps of argument (not evidence) attempting to persuade
                     the Court that Bank Markazi has engaged in commercial activities :

                     — in its Memorial, Iran stated that Bank Markazi “can enter into pur-
                       chase or sale contracts, own or lease real property, and appear before
                       courts of law to litigate or defend claims” 51, in addition to “pay[ing]
                       taxes” 52 on “net profits” 53;
                     — in its observations, Iran stated that “buying and selling securities in
                       the context of open market operations are economic activities in
                       nature, carried out by private companies as well as by central banks,
                       and pertain to ‘professional activities’” 54, and that “[s]ome of
                       Bank Markazi’s activities are also performed by private companies

                          50 MI, Vol. IV, Ann. 73.
                          51 Ibid., para. 4.7.
                          52 Ibid.
                          53 Ibid.
                          54 OSI, para. 4.24.

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                           (e.g. concluding contracts ; owning property ; buying securities), and
                           they pertain to commerce” 55;

                     — in the oral proceedings, counsel for Iran stated that Bank Markazi
                       “was endowed with capital for the conduct of its operations, which
                       may generate profits on which it must pay tax to the Iranian State”,
                       and that it “can of course enter into contracts of any nature, acquire
                       and sell goods and services, own assets and other movable and
                       immovable property, and appear in a court of law as a plaintiff or
                       defendant” 56.
                        28. Leaving aside the mention of profit and taxation thereof, neither of
                     which inherently detracts from the sovereign status of a central bank, the
                     signing of contracts, the purchase and sale of securities, appearance in
                     courts as a legal person and the ownership of real property are all acts
                     performed routinely by central banks. Perhaps with the exception of the
                     purchase and sale of securities, such activities also are performed by the
                     United Nations, the International Bank for Reconstruction and Develop-
                     ment (including member institutions of its Group), and by all other inter-
                     national organizations protected by immunity, including this Court. They
                     are essential to the support and maintenance of any institution. They are
                     not an indication of a central bank engaging in “commercial activities”
                     whatsoever as that term is understood in the law of sovereign immunity,
                     let alone “within the territory of the United States at the time of the mea-
                     sures which Iran claims violated Bank Markazi’s alleged rights under
                     Articles III, IV and V of the Treaty” 57.

                        29. The Court’s conclusion to postpone the decision on Bank Marka-
                     zi’s status under the Treaty, and to impose as the test for such decision
                     whether “Bank Markazi’s activities within the territory of the United States
                     at the time of the measures which Iran claims violated Bank Markazi’s
                     alleged rights under Articles III, IV and V of the Treaty” 58, appears to
                     have been the result of some confusion in Iran’s pleadings. Iran alleged
                     that Bank Markazi engages in “plainly ‘professional’” 59 activities, as well
                     as in activities which are “performed by private companies” 60 and which
                     “pertain to commerce” 61. Iran has never expressly denied, however, that
                     Bank Markazi has engaged exclusively in “sovereign activities”. Iran’s
                     submissions suggest that Iran has separated the term “commercial

                          55 OSI, para. 4.34.
                          56 CR 2018/30, pp. 57-58, para. 10 (Thouvenin).
                          57 Judgment, para. 93.
                          58 Ibid.
                          59 WSI, para. 4.34.
                          60 Ibid.
                          61 Ibid. See also CR 2018/30, p. 70, para. 60 (Thouvenin).

                     74

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                     78 	               certain iranian assets (sep. op. brower)

                     a ctivity” from the legal meaning it possesses under the law of State immu-
                      nity, which distinguishes it from “sovereign activity” 62, while using that
                     term descriptively in order to make the submission that Bank Markazi
                     engages exclusively in “sovereign activities”, some of which are “commer-
                      cial” in character.

                        30. The Court’s approach is further puzzling in that the opening para-
                     graph of Iran’s Memorial states that the United States “violates . . . the
                     specific immunity of the Central Bank of Iran . . . in respect of its sover-
                     eign bank activities in the United States” 63. Moreover, Iran consistently
                     has argued before the courts of the United States that Bank Markazi is
                     entitled to sovereign immunity for the activities at issue in this case, pre-
                     cisely because those activities are sovereign in character 64. In the Peter-
                     son proceedings, Bank Markazi clearly argued that its affected assets
                     enjoyed immunity as they were being “used for the classic central banking
                     purpose of investing Bank Markazi’s currency reserves” 65. All of Iran’s
                     claims relating to Bank Markazi concern ongoing statutory enforcement
                     proceedings before United States courts. Iran claims that all of those pro-
                     ceedings are in violation of Bank Markazi’s sovereign immunity because
                     they involved assets that Bank Markazi used or intended to use for sov-
                     ereign activities “within the territory of the United States at the time of
                     the measures” 66 of which Iran complains. Therefore, on Iran’s own case
                     Bank Markazi was at all material times acting in a sovereign capacity.
                     The Court interpreted Iran’s submissions as allegations that Bank Markazi
                     engages in non‑sovereign activities, despite Iran’s claims relating to
                     Bank Markazi being expressly based on the opposite proposition. The
                     Court should have heeded the aged judicial maxim that rejects a litigant
                     who “blows hot and cold at the same time” 67.

                        31. At paragraph 96 of the Judgment, the Court refers to its statement
                     in Territorial and Maritime Dispute (Nicaragua v. Colombia) concerning
                     the grounds on which it may find that an objection is not exclusively pre-

                        62 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judg-

                     ment, I.C.J. Reports 2012 (I), p. 125, para. 60.
                        63 MI, para. 1.1.
                        64 POUS, Anns. 233 and 235.
                        65 Ibid., Ann. 233, pp. 35-36.
                        66 Judgment, para. 93.
                        67 The use of this expression in a judicial context seems to harken back to the judgment

                     of J. Buller in J’Anson v. Stuart, (1787) 1 Term Reports 748. See also Smith v. Baker, (1872-
                     73) L.R. 8 C.P. 357 (J. Honyman). At the International Court of Justice, this expression
                     was used in Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports
                     1994, p. 78, para. 98 (separate opinion of Judge Ajibola).

                     75

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                     79 	             certain iranian assets (sep. op. brower)

                     liminary in character 68. In the present case, determining whether or not
                     Bank Markazi is a “company” under the Treaty of Amity would not have
                     prejudiced per se the merits of Iran’s Application. Iran requested the
                     Court to find that the United States is internationally responsible for
                     breaching certain provisions of the Treaty of Amity 69. The issue here is
                     whether or not the Court had before it all the facts necessary to decide the
                     objection raised concerning Bank Markazi’s character as a “company”.

                       32. It is my view that the Court had all the facts necessary to decide the
                     question raised, and that it thus erred in concluding that such objection
                     was not exclusively preliminary in character. Furthermore, I cannot see
                     how the Court, on the record placed before it by the Parties on this issue
                     in this preliminary proceeding, had it proceeded to decide the matter,
                     could have found otherwise than that Bank Markazi is not a “company”
                     for purposes of the Treaty. For these reasons, I was unable to vote in
                     favour of the third operative paragraph.

                     (Signed) Charles N. Brower.

                        68 See Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objec-

                     tions, Judgment, I.C.J. Reports 2007 (II), p. 852, para. 51.
                        69 Application of Iran, para. 33.

                     76

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