116

INDIVIDUAL OPINION OF PRESIDENT McNAIR

I concur in the conclusion reached in the Judgment of the Court
and wish to add some words of my own, as the reasons leading me
to this conclusion are not entirely the same as those contained in
that Judgment.

I shall begin by making some remarks of a preliminary character.
Under the Covenant of the League of Nations and the Statute of
the Permanent Court of International Justice no State was under
any obligation to accept the jurisdiction of that Court. However,
Article 36, paragraph 2, of the Statute afforded to States an oppor-
tunity of doing so by means of a voluntary act. That paragraph
(which is reproduced in the Statute of the present Court in terms
which are identical in all material respects} was in the nature of a
standing invitation made on behalf of the Court to Members of the
League of Nations to accept as compulsory, on the basis of recipro-
city, the whole or any part of the jurisdiction of the Court as therein
defined. It should be noted that the machinery provided by that
paragraph is that of “contracting-in”, not of “contracting-out’’. A
State, being free either to make a Declaration or not, is entitled,
if it decides to make one, to limit the scope of its Declaration in
any way it chooses, subject always to reciprocity. Another State
seeking to found the jurisdiction of the Court upon it must shew
that the Declarations of both States concur in comprising the dispute
in question within their scope. Article 36, paragraph 5, of the
Statute of the present Court, which came into force in 1945, pro-
vides that Declarations made under Article 36 of the Statute of the
Permanent Court and which were then still in force should be deemed
to be acceptances of the compulsory jurisdiction of the present
Court, and it is common ground between the Parties that the
Iranian Declaration ratified on 19 September, 1932, was in force
when the United Kingdom filed its Application in this Court on
26 May, 1951. It is also common ground that the present dispute
falls within the scope of the United Kingdom’s Declaration.

An international tribunal cannot regard a question of jurisdiction
solely as a question inter partes. That aspect does not exhaust the
matter. The Court itself, acting proprio motu, must be satisfied
that any State which is brought before it by virtue of such a
Declaration has consented to the jurisdiction. This aspect of the
matter was mentioned in the Judgment of the Permanent Court
in 1927 in the Chorzéw Factory Case (Jurisdiction), Series A,

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1x7 INDIVIDUAL OPINION OF PRESIDENT MCNAIR

No. 9, p. 32 (not a case arising on a Declaration) in the following
passage :

“It has been argued repeatedly in the course of the present
proceedings that in case of doubt the Court should decline juris-
diction. It is true that the Court’s jurisdiction is always a limited
one, existing only in so far as States have accepted it ; consequently,
the Court will, in the event of an objection—or when it has auto-
matically /d’office] to consider the question—only affirm its jurisdic-
tion provided that the force of the arguments militating in favour of
it is preponderant. The fact that weighty arguments can be advanced
to support the contention that it has no jurisdiction cannot of
itself create a doubt calculated to upset its jurisdiction. When
considering whether it has jurisdiction or not, the Court’s aim is
always to ascertain whether an intention on the part of the Parties
exists to confer jurisdiction upon it. The question as to the exist-
ence of a doubt nullifying its jurisdiction need not be considered
when, as in the present case, this intention can be demonstrated
in a manner convincing to the Court.”

*
* *

The principal question before the Court is the meaning of the
following words occurring in the Iranian Declaration of acceptance
of the jurisdiction of the Court, dated 2 October, 1930, and ratified
on 19 September, 1932 :

“sur tous les différends qui s’éléveraient après la ratification de la
présente déclaration, au sujet de situations ou de faits ayant
directement ou indirectement trait à l’application des traités ou
conventions acceptés par la Perse et postérieurs à la ratification

”

de cette déclaration, exception faite pour....”.

Does the reference to treaties or conventions denote treaties.
or conventions accepted by Iran regardless of the date of their
acceptance, as the United Kingdom contends, or only treaties or
conventions accepted by Iran after the date of the ratification of the
Declaration, as Iran contends ? That is, do the words “‘postérieurs à
la ratification de cette déclaration’”’ refer to “situations ou faits’’,
as the United Kingdom contends, or to “traités ou conventions”,
as Iran contends? The importance of this matter hes in the fact
that the United Kingdom relies, at any rate as a basis of the
jurisdiction of the Court, upon certain treaties accepted by Iran
before 19 September, 1932.

I need not repeat the discussion of the matter contained in the
Judgment of the Court because I accept the conclusion at which
the Court has arrived. Both interpretations are grammatically
possible, as Counsel for the United Kingdom admitted. Moreover,
both are possible as a matter of substance; both make sense,
though the effects of the two interpretations are quite different.
In short, there is a real ambiguity in the text, and, for that reason,

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118 INDIVIDUAL OPINION OF PRESIDENT MCNAIR

it is both justifiable and necessary to go outside the text and see
whether any light is shed by the surrounding circumstances.

In 1928 the Assembly of the League of Nations launched a
campaign for securing more acceptances of the compulsory juris-
diction of the Permanent Court. This campaign bore fruit, for in
the years 1928 to 1932 inclusive some 26 States deposited Decla-
rations accepting the compulsory jurisdiction of the Court in some
form or another. Among the Governments which responded to the
appeal was the Iranian Government. Its contribution was a very
modest one, though it enabled its delegate at Geneva to announce
to the Assembly on 16 September, 1930, that he had received a
telegram from Teheran to the effect that his country had ‘acceded
to the Optional Clause of the Statute of the Permanent Court of
International Justice’.

Iran’s limitation of its acceptance to situations and facts relating
directly or indirectly to treaties or conventions was unique, and
one is naturally led to inquire whether there was any reason for
this unusually restrictive attitude, and whether there is anything
that indicates which of the two possible interpretations of the
formula is the correct one.

The explanation given by the Iranian Government in para-
graph 19 of its Preliminary Observations dated 22 February,
1952, in which this Objection to the jurisdiction was raised, is
as follows:

“The Iranian Government had, indeed, overwhelming reasons
of international policy to limit its acceptance in the way it did:
on October 2nd, 1928 [ ? 1930], it had denounced all existing trea-
ties, binding it to other States, which were based on a capitulatory
system ; this resulted in a great number of negotiations for the
replacement of former conventions by new agreements based on
the equality of the contracting parties.

The Iranian Government drafted the clause under which it
adhered to the Statute of the Court in such a way as to exclude
the Court’s jurisdiction in respect of international conventions
signed before that date, because it had denounced those conventions
and because it wanted to put an end generally and finally to the
capitulatory system. That is the reason why it was naturally
inclined to accept the Court’s jurisdiction only in respect of treaties
subsequent in date to its adherence, that is to say, to confine
ourselves to the essentially political aspect, subsequent to the
change which came about in 1928 in Iran’s negotiations with other

tates.”

This statement—made in 1952—requires investigation, and we
must ascertain whether there was during the relevant period
1928 to 1932 anything peculiar in the treaty position or the
treaty-making activities of Iran. The gradual break-up-of the
régime of Capitulations throughout the world during the decade

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119 INDIVIDUAL OPINION OF PRESIDENT MCNAIR

following the first World War is described in Professor A. J. Toyn-
bee’s Survey of International Affairs for 1928, pages 349 and 350,
and in Wheeler-Bennett’s Documents on International Affairs,
1928, pages 200-212. Iran moved in 1927, and on May 10 of that
year “formally notified all States holding capitulatory privileges
in Persia [believed to number at least 13] that those privileges
would be abolished on the roth May, 1928”. As a sequel to this
denunciation it became necessary for Iran to overhaul her treaty
system, to revise her treaties and to replace the former capi-
tulatory system by a series of treaties of commerce and establish-
ment befitting the new status of legal equality which she had
asserted and acquired.

In consequence, as an examination of the League of Nations
Treaty Series shews, the years 1928 to 1932 were marked by intense
activity on the part of Iran in the negotiation of new treaties
of friendship or commerce or establishment. In the case of some
States formerly holding capitulatory privileges Iran had to be
content with provisional solutions embodied in Exchanges of
Notes, some of which had not been replaced by formal treaties
at the end of 1932 or much later. In short, Iran’s treaty system
was in a state of suspense and transition, and it was difficult
for her to know precisely how she stood in relation to certain
States, and what vestiges of the old régime still remained.

I think it is also necessary to bear in mind the large part that
had been played by most-favoured-nation clauses in creating the
network of the capitulatory system in Iran and elsewhere.

A perusal of Hertslet, Treaties, etc., between Great Britain and
Persia, and between Persia and other Foreign Powers (1891),
shews how widespread these clauses were in the treaties of Iran.
It is true that these clauses are in no way confined to the system
of Capitulations and have been used for hundreds of years by
States in their treaty relations without any reference to Capi-
tulations. Nevertheless, from the point of view of a State which
had been subject to a system of Capitulations for at least a
century and had only recently denounced them and emerged
into a new status, it would be surprising if the most-favoured-
nation principle was not regarded as an obnoxious concomitant
of that system. Such a State, while still engaged in negotiating
a new treaty régime restricting the most-favoured-nation principle
to normal commercial intercourse, would naturally be shy of
accepting any compulsory jurisdiction in terms wide enough to
expose itself to the invocation of any part of its old treaty system
that might still survive.

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120 INDIVIDUAL OPINION OF PRESIDENT MCNAIR

These historical considerations make it easier for me to under-
stand why the Iranian Government should desire to start with
a clean slate in regard to the compulsory jurisdiction of the Court
and to limit its obligations in that regard to treaties and conven-
tions accepted by it after 19 September, 1032.

The British comment upon the Iranian Government’s explanation
of the limitations contained in its Declaration, quoted above, is to
be found :in paragraph 20 of the Observations of the United King-
dom of 24 March, 1952. (a) It is said there that the British inter-
pretation of that Declaration would suffice to exclude from com-
pulsory jurisdiction disputes arising out of treaties relating to
Capitulations, because even on that interpretation the Declaration
is limited to disputes arising after 19 September, 1932, and relating
to situations or facts subsequent to that date. But Iran’s new treaty
system was not yet complete on 19 September, 1932, when the
Declaration was ratified—much less so on 2 October, 1930, whe
it was deposited in Geneva ; some of the new treaties had not been
ratified ; some had not even been negotiated ; and in a number of
cases all that existed was an Exchange of Notes agreeing upon a
“Provisional Settlement’’. In my opinion, it is intelligible, for the
reasons given above, that the Iranian Government, when it decided
on 2 October, 1930, to sign a Declaration, should have confined it
to treaties accepted after the ratification of that Declaration.

(b) Again, it is said by the United Kingdom that during the
period 1929-1934 the Iranian Government entered into a large
number of treaties with various States in which it accepted some
form of international arbitration for disputes arising from the appli-
cation or interpretation of treaties, past, present or future. I do not
find this answer convincing. It is one thing to agree upon arbitration
with a specific State ; it is another thing to accept the jurisdiction
of the Permanent Court in regard to treaties generally, with the
knowledge that that acceptance involves the risk of being compelled
to litigate with any Member of the League of Nations which had
made a Declaration containing the necessary element of reciprocity.
Moreover, if the eleven treaties enumerated in paragraph 21 of the
same Observations and cited in support of this argument are
examined, it will be found that most of them are treaties made with
States formerly holding capitulatory rights in Iran and later willing
to substitute new treaties which would recognize Iran’s new status
of equality ; while three of them are with Estonia, Finland and
Lithuania—new arrivals on the international scene—which had, so
far as I can ascertain, never held capitulatory rights in Iran. Thus the
States mentioned in this paragraph are precisely the kind of States
with which Iran might be disposed to agree upon some general form
of arbitration for disputes upon treaties. In my opinion these eleven
treaties are not inconsistent with the view that what the Iranian

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I2I INDIVIDUAL OPINION OF PRESIDENT MCNAIR

Government was afraid of when signing its Declaration on 2 October,
1930, was the possibility of being summoned before the Permanent
Court under that Declaration by virtue of some treaty, or part of
some treaty, dating from, or connected with, the régime of Capitu-
lations.

Accordingly I have formed the opinion that the Iranian Govern-
ment’s interpretation of its Declaration is preferable to that of the
United Kingdom and that the Declaration refers only to situations
or facts relating directly or indirectly to the application of treaties
or conventions accepted by Iran after 19 September, 1932 (and then
only subject to the reservations contained in the Declaration, which
are not now in question).

In coming to this conclusion I have not relied on the Iranian Law
of 15 January, 1931, communicated to this Court as late as ro June,
1952, and I should have preferred that it should be excluded from
the consideration of the Court. Its admissibility in evidence is open
to question, and its evidentiary value is slight.

*
* *

I now come to the second question, namely, whether there are
any treaties ratified by Iran after 19 September, 1932, upon which
the United Kingdom can rely in order to establish the jurisdiction
of the Court. The United Kingdom’s first claim to be able to do
this (see paragraph 22 of the Observations of 24 March, 1952) rests
on what is there described as ‘‘the international engagement between
Persia and the United Kingdom to observe the terms of the Conces-
sion Convention of 1933”.

With regard to that Concession Convention, which was made
between the Iranian Government and the Anglo-Persian Oil
Company, Limited, I accept the finding of the Court and the
reasoning which supports it. I do not regard it as falling within the
expression “‘traités ou conventions acceptés par la Perse”, Neither
the circumstances in which it was negotiated, nor the settlement
of the contemporaneous dispute between the United Kingdom and
Tran which was pending before the Council of the League of Nations,
resulted in the creation of a tacit oran implied agreement between
the United Kingdom and Iran that can be brought within the
formula ‘traités ou conventions acceptés par la Perse”. Upon the
significance of the expression ‘acceptés par la Perse”, I draw
attention to the observations of the Permanent Court of Inter-
national Justice in 1924 in the Mavrommatis Palestine Concessions
Case, Judgment No. 2 (Jurisdiction), Series A, No. 2, at page 24,
on the meaning of the expression “international obligations accepted
by the Mandatory’’, and to the observations of Lord Finlay and
Judge Moore to the same effect at pages 47 and 68. The words

32
122 INDIVIDUAL OPINION OF PRESIDENT MCNAIR

‘acceptés par la Perse” would not be apt to describe a tacit or an
implied agreement, if any such agreement had arisen. Some meaning
must be given to the word ‘‘acceptés”.

The United Kingdom’s second claim to be able to base the
jurisdiction of the Court upon a treaty ratified by Iran after 19 Sep-
tember, 1932, rests upon three treaties made by Iran with Den-
mark (1934), Switzerland (1934) and Turkey (1937) “upon the
provisions of which’ (according to paragraph 22 of the above-
mentioned Observations) ‘‘the United Kingdom is entitled to rely
by virtue of most-favoured-nation clauses in the treaties of
1857 and 1903 between the United Kingdom and Persia”. These
treaties are said ‘‘to bring the present case within the terms of the
declaration”. It will suffice, for the purpose of considering this
argument, to confine ourselves to the Treaty of 1934 between Iran
and Denmark (which came into force on 21 March, 1935) and
Article 9 of the Anglo-Persian Treaty of 1857, which was expressly
preserved on a temporary basis by means of an Exchange of Notes
between Iran and the United Kingdom dated 10 May, 1928 ( British
Parliamentary Paper, Cmd. 3606),

Unquestionably, if the jurisdiction of the Court in this case had
already been established and if the Court was now dealing with
the merits, the United Kingdom would be entitled to invoke
against Iran the most-favoured-nation clause (Article 9) of the
Anglo-Persian Treaty of 1857, for the purpose of claiming the
benefit of the provisions of the Irano-Danish Treaty of 1934 as to
the treatment of foreign nationals and their property. But that is
not the question now before the Court. The question is whether the
United Kingdom can effectively base the jurisdiction of the Court
on the Irano-Danish Treaty of 1934 as a treaty “‘postérieur à la
ratification de cette déclaration’’—-which is quite another matter.

Having regard to the view which I have expressed that the
Iranian Declaration applies only to treaties ratified by Iran after
19 September, 1932, I consider that this contention of the United
Kingdom encounters two obstacles :

(a) the first is that the United Kingdom can rely on no treaty
between herself and Iran ratified after that date. In reply to that
objection, it may be argued that the Iranian formula does not in
express terms say that the treaties aimed at by it must be treaties
made between Iran and the other Party to the proceedings in this
Court. Nevertheless, I am strongly inclined to think that when a
State makes a Declaration agreeing, on a basis of reciprocity, to
refer disputes arising out of treaties to this Court, that Declaration
means disputes arising out of treaties made between the two
Parties to the proceedings. However, whether that view is right
or wrong, there is the further, and in my opinion fatal, obstacle :

(b) that the United Kingdom, before it can base its claim on
the Irano-Danish Treaty, must establish a connection with it,

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123 INDIVIDUAL OPINION OF PRESIDENT MCNAIR

and this the United Kingdom attempts to do by invoking Article 9
of the Anglo-Persian Treaty of 1857—a treaty which antedates
the Iranian Declaration.

Thus it would be necessary, in order to accept this contention
of the United Kingdom, for the Court to hold that the United
Kingdom can

(a) not only invoke a treaty of 1934 between Iran and a third
State, but also

(b) telescope together that treaty and a treaty between Iran
and herself of 1857 by praying in aid a most-favoured-nation
clause contained in the last-mentioned treaty.

Can either treaty alone, or both of them together, be called
“un traité ou convention accepté par la Perse” after 19 September,
1932, within the meaning of the Declaration ? I think not. Such
an interpretation seems to me to be artificial and much strained,
and I cannot accept it. I do not consider that a State making
a Declaration under paragraph 2 of Article 36 can be said to
contemplate such a roundabout application of it.

Nor do I consider that the words ‘‘directement ou indirectement”?
help the United Kingdom because these words qualify the relation
between the situations or facts and the application of the treaty,
and are not apt to cover the indirect operation of a most-favoured-
nation clause in connecting a treaty of 1857 with a treaty of
1934 for the purpose of satisfying the formula contained in the
Iranian Declaration.

For these reasons I am unable to accept the United Kingdom’s
claim to base the jurisdiction of the Court upon the treaties with
Denmark, Switzerland and Turkey accepted by Iran after 19 Sep-
tember, 1932.

Accordingly the Court has no jurisdiction in this case.

(Signed), ARNOLD D. McNair.

34