COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES PLATES-FORMES PETROLIERES

(RÉPUBLIQUE ISLAMIQUE D'IRAN c. ÉTATS-UNIS
D’AMERIQUE)

EXCEPTION PRELIMINAIRE

ARRET DU 12 DECEMBRE 1996

1996

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING OIL PLATFORMS

(ISLAMIC REPUBLIC OF IRAN y. UNITED STATES
OF AMERICA)

PRELIMINARY OBJECTION

JUDGMENT OF 12 DECEMBER 1996
Mode officiel de citation:

Plates-formes pétroliéres (République islamique d’Iran
c. Etats-Unis d'Amérique), exception préliminaire, arrêt,
C.LJ. Recueil 1996, p. 803

Official citation:

Oil Platforms (Islamic Republic of Iran
v. United States of America), Preliminary Objection, Judgment,
LC.J. Reports 1996, p. 803

N° de vente:
ISSN 0074-4441 Sales number 683

ISBN 92-1-070748-6

803

INTERNATIONAL COURT OF JUSTICE
YEAR 1996

12 December 1996

CASE CONCERNING OIL PLATFORMS

(ISLAMIC REPUBLIC OF IRAN y». UNITED STATES
OF AMERICA)

PRELIMINARY OBJECTION

Jurisdiction of the Court — Treaty of Amity, Economic Relations and Con-
sular Rights of 15 August 1955 — Treaty in force.

Article XXT, paragraph 2 — Dispute not satisfactorily adjusted by diplomacy
— Lack of agreement to settle it by “other pacific means” — Dispute “as to the
interpretation or application” of the Treaty.

Contention that the Treaty cannot apply to questions concerning the use of
force — Lack of any provision expressly excluding certain matters from the
jurisdiction of the Court — Article XX, paragraph 1 (d), as a defence on the
merits — Unlawfulness of actions incompatible with the obligations flowing
from the Treaty, whatever the means employed.

Contention that the claims of Iran cannot be founded on Article I of the
Treaty — Interpretation in the light of the object and purpose of the Treaty —
Object and purpose not concerned with the general regulation of peaceful and
friendly relations between the parties — Documents produced and practice fol-
lowed by the Parties — Provision not without legal significance for the inter-
pretation of the other provisions but unable, taken in isolation, to be a basis for
the jurisdiction of the Court.

Contention that the claims of Iran cannot be founded on Article IV, para-
graph 1, of the Treaty — Provision not including any territorial limitation —
Provision aimed at the treatment by each of the parties of the nationals and
companies of the other — Inapplicability of Article IV, paragraph 1, to the par-
ticular case.

Contention that the claims of Iran cannot be founded on Article X, para-
graph 1, of the Treaty — Meaning of the word “commerce” in that provision —
Scope not limited to maritime commerce — Scope not limited to activities of
purchase and sale — Provision protecting “freedom of commerce” — Freedom
that might in fact be impeded by acts entailing the destruction of goods destined

4

1996
12 December
General List
No. 90
OIL PLATFORMS (JUDGMENT) 804

to be exported or capable of affecting their transport and storage with a view to
export — Destruction capable of having an effect upon the export trade in
Iranian oil and of having an adverse effect upon freedom of commerce as
guaranteed by the provision in question — Lawfulness can be evaluated in
relation to that provision.

Subsidiary submissions no longer having any object.

JUDGMENT

Present: President Bepsaou1; Vice-President ScHWEBEL; Judges ODa,
GUILLAUME, SHAHABUDDEEN, WEERAMANTRY, RANJEVA, HERCZEGH,
Sul, FLEISCHHAUER, KOROMA, VERESHCHETIN, FERRARI BRAVO, HIGGINS,
PARRA-ARANGUREN; Judge ad hoc RiGAux; Registrar VALENCIA-
OSPINA.

In the case concerning oil platforms,
between

the Islamic Republic of Iran,
represented by

Mr. M. H. Zahedin-Labbaf, Agent of the Islamic Republic of Iran to the
Tran-United States Claims Tribunal,

as Agent;
Dr. S. M. Zeinoddin, Head of Legal Affairs, National Iranian Oil Company,

Mr. James R. Crawford, Whewell Professor of International Law, University
of Cambridge, Member of the International Law Commission,

Mr. Luigi Condorelli, Professor of International Law, University of Geneva,

Mr. Rodman R. Bundy, avocat à la cour d’appel de Paris, Member of the
New York Bar, Frere Cholmeley, Paris,

as Counsel and Advocates;

Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A., Whewell Professor Emeritus,
University of Cambridge,

Dr. N. A. Mansourian, Legal Adviser, Bureau of International Legal
Services of the Islamic Republic of Iran,

Dr. M. A. Movahed, Senior Legal Adviser, National Iranian Oil Company,

Dr. H. Omid, Legal Adviser, National Iranian Oil Company,

Dr. A. A. Mahrokhzad, Legal Adviser, National Iranian Oil Company,

Mr. David S. Sellers, Solicitor, Frere Cholmeley, Paris,
Ms Loretta Malintoppi, avocat a la Cour, Frere Cholmeley, Paris,

as Counsel,
OIL PLATFORMS (JUDGMENT) 805

and

the United States of America,
represented by

Mr. Michael J. Matheson, Acting Legal Adviser, United States Department
of State,
as Agent;

Dr. John H. McNeill, Senior Deputy General Counsel, United States Depart-
ment of Defense,

Professor Andreas F. Lowenfeld, Rubin Professor of International Law,
New York University School of Law,

Mr. John R. Crook, Assistant Legal Adviser for United Nations Affairs,
United States Department of State,

Dr. Sean Murphy, Counselor for Legal Affairs, United States Embassy, The
Hague,

Mr. Jack Chorowsky, Special Assistant to the Legal Adviser, United States
Department of State,

Commander Ronald D. Neubauer, Judge Advocate General’s Corps, United
States Navy,

as Counsel and Advocates;

Mr. Allen Weiner, Attaché (Office of the Legal Counselor), United States
Embassy, The Hague,

as Counsel,

Tue Court,

composed as above,
after deliberation,

delivers the following Judgment:

1. On 2 November 1992, the Government of the Islamic Republic of Iran
(hereinafter called “Iran”) filed in the Registry of the Court an Application
instituting proceedings against the Government of the United States of America
(hereinafter called “the United States”) in respect of a dispute

“aris[ing] out of the attack [on] and destruction of three offshore oil pro-
duction complexes, owned and operated for commercial purposes by the
National Iranian Oil Company, by several warships of the United States
Navy on 19 October 1987 and 18 April 1988, respectively”.

In its Application, Iran contended that these acts constituted a “fundamental
breach” of various provisions of the Treaty of Amity, Economic Relations and
Consular Rights between the United States of America and Iran, which was
signed in Tehran on 15 August 1955 and entered into force on 16 June 1957
(hereinafter called “the Treaty of 1955”), as well as of international law. The
Application invokes, as a basis for the Court’s jurisdiction, Article XXI, para-
graph 2, of the Treaty of 1955.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
immediately communicated to the Government of the United States by the
Registrar; and, pursuant to paragraph 3 of that Article, all States entitled to
appear before the Court were notified of the Application.
OIL PLATFORMS (JUDGMENT) 806

3. By an Order dated 4 December 1992, the President of the Court fixed
31 May 1993 as the time-limit for the filing of the Memorial of Iran and
30 November 1993 as the time-limit for the filing of the Counter-Memorial of
the United States.

4, By an Order of 3 June 1993, the President of the Court, at the request of
Iran, extended to 8 June 1993 the time-limit for the filing of the Memorial; the
time-limit for the filing of the Counter-Memorial was extended, by the same
Order, to 16 December 1993. Iran duly filed its Memorial within the time-limit
thus extended.

5. Within the extended time-limit fixed for the filing of the Counter-Memo-
rial, the United States raised a preliminary objection to the jurisdiction of the
Court pursuant to Article 79, paragraph 1, of the Rules of Court. Conse-
quently, by an Order dated 18 January 1994, the President of the Court, noting
that by virtue of Article 79, paragraph 3, of the Rules of Court the proceedings
on the merits were suspended, fixed 1 July 1994 as the time-limit within which
Iran might present a written statement of its observations and submissions on
the preliminary objection raised by the United States. Iran filed such a state-
ment within the time-limit so fixed, and the case became ready for hearing in
respect of the preliminary objection.

6. Since the Court included upon the Bench no judge of Iranian nationality,
Iran availed itself of its right under Article 31, paragraph 2, of the Statute of
the Court to choose a judge ad hoc to sit in the case: it chose Mr. François
Rigaux.

7. Pursuant to Article 53, paragraph 2, of the Rules of Court, the pleadings
and annexed documents filed in the case were made accessible to the public by
the Court as from the date of opening of the oral proceedings on the prelimi-
nary objection.

8. Public hearings were held between 16 and 24 September 1996, at which
the Court heard the oral arguments and replies of:

For the United States: Mr. Michael J. Matheson,
Commander Ronald D. Neubauer,
Mr. Andreas F. Lowenfeld,
Mr. John R. Crook,
Mr. Sean Murphy,
Mr. Jack Chorowsky.

For Iran: Mr. M. H. Zahedin-Labbaf,
Dr. S. M. Zeinoddin,
Mr. Rodman R. Bundy,
Mr. Luigi Condorelli,
Mr. James R. Crawford.

At the hearings, judges put questions to the Parties who answered in writing
after the close of the oral proceedings. Referring to the provisions of Article 72
of the Rules of Court, Iran communicated to the Court its observations on the
replies given by the United States to one of those questions.

*

9. In the Application, the following requests were made by Iran:

“On the basis of the foregoing, and while reserving the right to supple-
ment and amend these submissions as appropriate in the course of further

7
OIL PLATFORMS (JUDGMENT) 807

proceedings in the case, the Islamic Republic respectfully requests the
Court to adjudge and declare as follows:

(a) that the Court has jurisdiction under the Treaty of Amity to entertain

the dispute and to rule upon the claims submitted by the Islamic
Republic;

(b) that in attacking and destroying the oil platforms referred to in the

Application on 19 October 1987 and 18 April 1988, the United States
breached its obligations to the Islamic Republic, inter alia, under
Articles I and X (1) of the Treaty of Amity and international law;

(c) that in adopting a patently hostile and threatening attitude towards

the Islamic Republic that culminated in the attack and destruction of
the Iranian oil platforms, the United States breached the object and
purpose of the Treaty of Amity, including Articles I and X (1), and
international law;

{d) that the United States is under an obligation to make reparations to

the Islamic Republic for the violation of its international legal obli-
gations in an amount to be determined by the Court at a subsequent
stage of the proceedings. The Islamic Republic reserves the right to
introduce and present to the Court in due course a precise evaluation
of the reparations owed by the United States; and

(e) any other remedy the Court may deem appropriate.”

10. In the written proceedings, the following submissions were presented by
the Parties:

On behalf of the Government of Iran,
in the Memorial:

“In the light of the facts and arguments set out above, the Govern-

ment of the Islamic Republic of Iran requests the Court to adjudge and
declare:

1.
2.

4.

That the Court has jurisdiction under the Treaty of Amity to entertain
the dispute and to rule upon the claims submitted by Iran;

That in attacking and destroying the oil platforms referred to in Iran’s
Application on 19 October 1987 and 18 April 1988, the United States
breached its obligations to Iran, inter alia, under Articles I, IV (1) and
X (1) of the Treaty of Amity and international law, and that the United
States bears responsibility for the attacks; and

That the United States is accordingly under an obligation to make full
reparation to Iran for the violation of its international legal obligations
and the injury thus caused in a form and amount to be determined by
the Court at a subsequent stage of the proceedings. Iran reserves the
right to introduce and present to the Court in due course a precise
evaluation of the reparation owed by the United States; and

Any other remedy the Court may deem appropriate.”

On behalf of the Government of the United States,
in the Preliminary Objection:

“The United States of America requests that the Court uphold the

8
OIL PLATFORMS (JUDGMENT) 808

objection of the United States to the jurisdiction of the Court and decline
to entertain the case.”

On behalf of the Government of Iran,

in the Written Statement of its Observations and Submissions on the Prelimi-
nary Objection:

“In the light of the facts and arguments set out above, the Government
of the Islamic Republic of Iran requests the Court to adjudge and declare:
1. That the preliminary objection of the United States is rejected in its

entirety ;

2. That, consequently, the Court has jurisdiction under Article XXI (2) of
the Treaty of Amity to entertain the claims submitted by the Islamic
Republic of Iran in its Application and Memorial as they relate to a
dispute between the Parties as to the interpretation or application of
the Treaty;

3. That, on a subsidiary basis in the event the preliminary objection is not
rejected outright, it does not possess, in the circumstances of the case,
an exclusively preliminary character within the meaning of Article 79 (7)
of the Rules of Court; and

4. Any other remedy the Court may deem appropriate.”

11. In the oral proceedings, the following submissions were presented by the
Parties:

On behalf of the Government of the United States,
at the hearing of 23 September 1996:

“The United States of America requests that the Court uphold the
objection of the United States to the jurisdiction of the Court in the case
concerning Oil Platforms (Islamic Republic of Iran v. United States of
America)?”

On behalf of the Government of Iran,
at the hearing of 24 September 1996:

The submissions read at the hearing were identical to those presented by Iran
in the Written Statement of its Observations and Submissions on the Prelimi-
nary Objection.

12. In its Application instituting proceedings, Iran states that, on
19 October 1987 and 18 April 1988, certain oil platforms located on the
Iranian continental shelf and belonging to the National Iranian Oil Com-
pany were attacked and destroyed by naval forces of the United States.
Iran maintains that, by proceeding in this manner, the United States
“breached its obligations to the Islamic Republic, inter alia, under Ar-
ticles I and X (1) of the Treaty of Amity”. Iran further claims that those
actions of the United States “breached the object and purpose of the
Treaty ..., and international law”. Iran concludes by saying that it falls
to the Court, in accordance with Article XXI, paragraph 2, of the Treaty

9
OIL PLATFORMS (JUDGMENT) 809

of 1955, to settle the dispute that has thus come into being between the
two States.

13. In the course of subsequent proceedings, Iran developed those
arguments more specifically, maintaining, in its Memorial, that the United
States had also breached the provisions of Article [V, paragraph 1, of the
Treaty of 1955. During the hearings, it stated that “its claim is strictly
based on three very specific provisions of the 1955 Treaty of Amity and
that the Court can settle the dispute which is submitted to it on the basis
of that Treaty alone”. It further stated that Iran’s Application was based
on those three provisions and “not on the violation of the object and pur-
pose of the Treaty as a whole”. As for general international law, this is
not invoked by Iran as such, but rather “in order to identify the content
and scope of the obligations arising from the Treaty”. Accordingly, in the
most recent presentation of its arguments, Iran claims only that Article I,
Article IV, paragraph 1, and Article X, paragraph 1, of the Treaty of
1955 have been infringed by the United States. The dispute thus brought
into being is said to fall within the jurisdiction of the Court pursuant to
Article XXI, paragraph 2, of the same Treaty.

14. The United States for its part maintains that the Application of
Iran bears no relation to the Treaty of 1955. It stresses that, as a conse-
quence, the dispute that has arisen between itself and Iran does not fall
within the provisions of Article XXI, paragraph 2, of the Treaty and
deduces from this that the Court must find that it lacks jurisdiction to
deal with it.

x * x

15. The Court points out, to begin with, that the Parties do not contest
that the Treaty of 1955 was in force at the date of the filing of the Appli-
cation of Iran and is moreover still in force. The Court recalls that it had
decided in 1980 that the Treaty of 1955 was applicable at that time
(United States Diplomatic and Consular Staff in Tehran, Judgment,
LC J. Reports 1980, p. 28, para. 54); none of the circumstances brought
to its knowledge in the present case would cause it now to depart from
that view.

By the terms of Article XXI, paragraph 2, of that Treaty:

“Any dispute between the High Contracting Parties as to the
interpretation or application of the present Treaty, not satisfactorily
adjusted by diplomacy, shall be submitted to the International Court
of Justice, unless the High Contracting Parties agree to settlement by
some other pacific means.”

16, It is not contested that several of the conditions laid down by this
text have been met in the present case: a dispute has arisen between Iran
and the United States; it has not been possible to adjust that dispute by

10
OIL PLATFORMS (JUDGMENT) 810

diplomacy and the two States have not agreed “to settlement by some
other pacific means” as contemplated by Article XXI. On the other hand,
the Parties differ on the question whether the dispute between the two
States with respect to the lawfulness of the actions carried out by the
United States against the Iranian oil platforms is a dispute “as to the
interpretation or application” of the Treaty of 1955. In order to answer
that question, the Court cannot limit itself to noting that one of the
Parties maintains that such a dispute exists, and the other denies it. It
must ascertain whether the violations of the Treaty of 1955 pleaded by
Iran do or do not fall within the provisions of the Treaty and whether, as
a consequence, the dispute is one which the Court has jurisdiction ratione
materiae to entertain, pursuant to Article XXI, paragraph 2.

* * *

17. The objection to jurisdiction raised by the United States comprises
two facets. One concerns the applicability of the Treaty of 1955 in the
event of the use of force; the other relates to the scope of various
articles of that Treaty.

*  *

18. The Court will deal initially with the Respondent’s argument that
the Treaty of 1955 does not apply to questions concerning the use of
force. In this perspective, the United States contends that the attack and
destruction of the oil platforms

“occurred .. . in the context of a long series of attacks by Iranian
military and paramilitary forces on US and other neutral vessels
engaged in peaceful commerce in the Persian Gulf”.

According to the Respondent, “it does not matter . . . how these incidents
of armed conflict are characterized”; essentially, the dispute relates to the
lawfulness of actions by naval forces of the United States that “involved
combat operations”. Further, Treaties of Friendship, Commerce and
Navigation aim to provide

“protection for the property and interests of American citizens and
companies in the territory of the other party and to assure fair and
nondiscriminatory treatment with respect to engaging in commer-
cial, industrial and financial activities in those countries, in return
for like assurances for the nationals of those other parties in the ter-
ritory of the United States. There is simply no relationship between
these wholly commercial and consular provisions of the Treaty and
Iran’s Application and Memorial, which focus exclusively on allega-
tions of unlawful uses of armed force.”

In effect, according to the United States, Iran’s claims raise issues rela-

11
OIL PLATFORMS (JUDGMENT) 811

ting to the use of force, and these issues do not fall within the ambit of
the Treaty of 1955. For this reason, the Court is said to lack jurisdiction
to entertain the submissions of the Applicant.

19. In its Observations and Submissions on the Preliminary Objection
of the United States, Iran maintains that the dispute that has arisen
between the Parties concerns the interpretation or application of the
Treaty of 1955. It therefore requests that the preliminary objection be
rejected, or, on a subsidiary basis, if it is not rejected outright, that it
should be regarded as not having an exclusively preliminary character
within the meaning of Article 79, paragraph 7, of the Rules of Court.

20. The Court notes in the first place that the Treaty of 1955 contains
no provision expressly excluding certain matters from the jurisdiction of
the Court. Indeed, Article XX, paragraph 1 (d), provides that:

“1. The present Treaty shall not preclude the application of
measures:
{d) necessary to fulfill the obligations of a High Contracting Party
for the maintenance or restoration of international peace and
security, or necessary to protect its essential security interests.”

This text could be interpreted as excluding certain measures from the
actual scope of the Treaty and, consequently, as excluding the jurisdic-
tion of the Court to test the lawfulness of such measures. It could also be
understood as affording only a defence on the merits. The Court, in its
Judgment of 27 June 1986 in the case concerning Military and Paramili-
tary Activities in and against Nicaragua (Nicaragua v. United States of
America), adopted the latter interpretation for the application of an
identical clause included in the Treaty of Friendship, Commerce and
Navigation concluded between the United States and Nicaragua on
21 January 1956 (I. C.J. Reports 1986, p. 116, para. 222, and p. 136,
para. 271). Iran argues, in this case, that the Court should give the same
interpretation to Article XX, paragraph 1 (d). The United States, for its
part, in the most recent presentation of its arguments, stated that “con-
sideration of the interpretation and application of Article XX, para-
graph | (d), was a merits issue”. The Court sees no reason to vary the
conclusions it arrived at in 1986. It accordingly takes the view that
Article XX, paragraph 1 (d), does not restrict its jurisdiction in the
present case, but is confined to affording the Parties a possible defence
on the merits to be used should the occasion arise.

21. The Treaty of 1955 imposes on each of the Parties various obliga-
tions on a variety of matters. Any action by one of the Parties that is
incompatible with those obligations is unlawful, regardless of the means
by which it is brought about. A violation of the rights of one party under
the Treaty by means of the use of force is as unlawful as would be a vio-

12
OIL PLATFORMS (JUDGMENT) 812

lation by administrative decision or by any other means. Matters relating
to the use of force are therefore not per se excluded from the reach of the
Treaty of 1955. The arguments put forward on this point by the United
States must therefore be rejected.

x *

22. In the second place, the Parties differ as to the interpretation to be
given to Article I, Article IV, paragraph 1, and Article X, paragraph 1, of
the Treaty of 1955. According to Iran, the actions which it alleges against
the United States are such as to constitute a breach of those provisions
and the Court consequently has jurisdiction ratione materiae to entertain
the Application. According to the United States, this is not the case.

23. The Court recalls that, according to customary international law
as expressed in Article 31 of the Vienna Convention on the Law of Trea-
ties of 23 May 1969, a treaty must be interpreted in good faith in accor-
dance with the ordinary meaning to be given to its terms in their context
and in the light of its object and purpose. Under Article 32, recourse may
be had to supplementary means of interpretation such as the preparatory
work and the circumstances in which the treaty was concluded.

*

24. Article I of the Treaty of 1955 provides that: “There shall be firm
and enduring peace and sincere friendship between the United States ...
and Iran.”

25. Iran contends that this provision

“does not merely formulate a recommendation or desire . . ., but
imposes actual obligations on the Contracting Parties, obliging them
to maintain long-lasting peaceful and friendly relations”.

This interpretation is said to be required by the context, and to be
reinforced by the circumstances in which the Treaty was concluded.
It is described as the only interpretation which would enable “effective-
ness” to be imparted to Article I. That Article would, then, impose upon
the Parties

“the minimum requirement .. . to conduct themselves with regard to
the other in accordance with the principles and rules of general inter-
national law in the domain of peaceful and friendly relations”

and, particularly, in accordance with the relevant provisions of the Char-
ter of the United Nations and of customary law governing the use of
force, as well as with General Assembly resolution 2625 (XXV) concern-
ing friendly relations among States. For Iran,

“any violation by one party at the expense of the other of the rules
of international law pertaining to the threat and use of force, as well

13
OIL PLATFORMS (JUDGMENT) 813

as pertaining to friendly relations between States, must at the same
time be considered as a violation of the Treaty of Amity”.

The Court is accordingly said to have jurisdiction to evaluate the lawful-
ness of the armed actions of the United States in relation to the provi-
sions of Article I of the Treaty of 1955 and, accordingly, in relation to the
rules of general international law thus “incorporated” into the Treaty.

26. The United States considers, on the contrary, that Iran “reads far
too much into Article F”. That text, according to the Respondent, “con-
tains no standards”, but only constitutes a “statement of aspiration”.
That interpretation is called for in the context and on account of the
“purely commercial and consular” character of the Treaty. It is said to
correspond to the common intention of the Parties, and to be confirmed
by the circumstances in which the Treaty was concluded and by the prac-
tice of the Parties. It follows that the conduct of the United States can-
not, in this case, be evaluated in relation to the provisions of Article I.
The Court is said to lack jurisdiction to entertain the submissions of Iran
based on that Article.

27. Article I states that “There shall be firm and enduring peace and
sincere friendship” between the two contracting States. The Court con-
siders that such a general formulation cannot be interpreted in isolation
from the object and purpose of the Treaty in which it is inserted.

There are some Treaties of Friendship which contain not only a provi-
sion on the lines of that found in Article I but, in addition, clauses aimed
at clarifying the conditions of application: an explicit reference to certain
provisions of the Charter of the United Nations; consultation between
the parties in certain circumstances, in particular in the event of an armed
conflict with a third State; or co-operation in the event of problems with
neighbouring States. Such, for instance, was the case of the Treaty of
Friendship and Good Neighbourliness between the French Republic and
the United Kingdom of Libya of 10 August 1955, which the Court had
occasion to interpret in its Judgment of 3 February 1994 in the case con-
cerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J.
Reports 1994, p. 6). However, this does not apply to the present case.

Article I is in fact inserted not into a treaty of that type, but into a
treaty of “Amity, Economic Relations and Consular Rights” whose
object is, according to the terms of the Preamble, the “encouraging [of]
mutually beneficial trade and investments and closer economic inter-
course generally” as well as “regulating consular relations” between the
two States. The Treaty regulates the conditions of residence of nationals
of one of the parties on the territory of the other (Art. IT), the status of
companies and access to the courts and arbitration (Art. IID, safeguards
for the nationals and companies of each of the contracting parties as well
as their property and enterprises (Art. IV), the conditions for the pur-
chase and sale of real property and protection of intellectual property
(Art. V), the tax system (Art. VI), the system of transfers (Art. VII), cus-
toms duties and other import restrictions (Arts. VII and IX), freedom of

14
OIL PLATFORMS (JUDGMENT) 814

commerce and navigation (Arts. X and XI), and the rights and duties of
Consuls (Arts. XII-XIX).

28. It follows that the object and purpose of the Treaty of 1955 was
not to regulate peaceful and friendly relations between the two States in
a general sense. Consequently, Article | cannot be interpreted as incor-
porating into the Treaty all of the provisions of international law con-
cerning such relations. Rather, by incorporating into the body of the
Treaty the form of words used in Article I, the two States intended to
stress that peace and friendship constituted the precondition for a har-
monious development of their commercial, financial and consular rela-
tions and that such a development would in turn reinforce that peace and
that friendship. It follows that Article I must be regarded as fixing an
objective, in the light of which the other Treaty provisions are to be inter-
preted and applied.

This conclusion is in conformity with that reached by the Court in
1986, when, on the occasion of its interpretation of the Treaty of Friend-
ship of 1956 between the United States and Nicaragua, it stated in gen-
eral terms that:

“There must be a distinction . . . in the case of a treaty of friend-
ship, between the broad category of unfriendly acts, and the nar-
rower category of acts tending to defeat the object and purpose of
the Treaty. That object and purpose is the effective implementation
of friendship in the specific fields provided for in the Treaty, not
friendship in a vague general sense.” (C.J. Reports 1986, p. 137,
para. 273.)

29. The Court must now turn its attention to the documents produced
by the Parties in support of their respective positions concerning the
meaning to be given to Article I. In this regard, it may be thought that, if
that Article had the scope that Iran gives it, the Parties would have been
led to point out its importance during the negotiations or the process of
ratification. However, the Court does not have before it any Iranian
document in support of this argument. As for the United States docu-
ments introduced by the two Parties, they show that at no time did the
United States regard Article I as having the meaning now given to it by
the Applicant.

A clause of this type was inserted after the end of the Second World
War into four of the Treaties of Friendship and Commerce or Economic
Relations concluded by the United States, ie., those concluded with
China, Ethiopia and Iran as well as with Oman and Muscat. Indeed, dur-
ing the negotiation of the treaty with China, the United States Depart-
ment of State had indicated, in a memorandum addressed to its embassy
in Chongqing, that if such a clause was not customary in treaties of this
kind concluded by the United States, its inclusion was nonetheless justi-
fied in that case “in view of the close political relations between China
and the United States”. But, during the discussions in the United States
Senate that preceded the ratification of the four Treaties, the clause does

15
OIL PLATFORMS (JUDGMENT) 815

not, according to the material submitted to the Court, appear to have
been given any particular attention. Only in the message from the Secre-
tary of State whereby he transmitted the Treaty with Ethiopia to the Sen-
ate, after referring to the provisions in question, was it pointed out that:

“Such provisions, though not included in recent treaties of friend-
ship, commerce and navigation, are in keeping with the character of
such instruments and serve to emphasize the essentially friendly
character of the treaty.”

As for the clause on dispute settlement that was included in most of the
treaties of friendship and commerce concluded by the United States after
1945, it appears to have been consistently referred to by the Department
of State as being “limited to differences arising immediately from the spe-
cific treaty concerned”, as such treaties deal with “familiar subject matter”
in relation to which “an established body of interpretation already exists”.

30. The practice followed by the Parties in regard to the application of
the Treaty does not lead to any different conclusions. The United States
has never relied upon that Article in proceedings involving Iran and,
more particularly, did not invoke that text in the case concerning United
States Diplomatic and Consular Staff in Tehran. Neither did Iran rely on
that Article, for example in the proceedings before this Court in the case
concerning the Aerial Incident of 3 July 1988.

31. In the light of the foregoing, the Court considers that the objective
of peace and friendship proclaimed in Article I of the Treaty of 1955 is
such as to throw light on the interpretation of the other Treaty provi-
sions, and in particular of Articles IV and X. Article I is thus not without
legal significance for such an interpretation, but cannot, taken in isola-
tion, be a basis for the jurisdiction of the Court.

32. Article IV, paragraph 1, of the Treaty of 1955 provides that:

“Each High Contracting Party shall at all times accord fair and
equitable treatment to nationals and companies of the other High
Contracting Party, and to their property and enterprises; shall refrain
from applying unreasonable or discriminatory measures that would
impair their legally acquired rights and interests; and shall assure
that their lawful contractual rights are afforded effective means of
enforcement, in conformity with the applicable laws.”

33. Iran contends that this text places each of the Parties under an
obligation to accord “fair and equitable treatment” to nationals and
property of the other Party and to refrain from applying any “unreason-
able or discriminatory measures” to them, wherever those nationals or
that property may be. It submits that it falls to the Court to evaluate the

16
OIL PLATFORMS (JUDGMENT) 816

lawfulness of the armed actions of the United States in relation to those
provisions.
34, The United States considers on the contrary that

“Article IV, paragraph 1, deals with the treatment by one Party of
nationals and companies of the other Party that come within its ter-
ritory for commercial or private purposes”.

It submits that that text

“cannot be read as a wholesale warranty by each Party to avoid all
injury to the nationals and companies of the other Party, regardless
of location of those nationals and companies”.

The United States recalls that the actions allegedly committed by it do
not concern Iranian nationals or companies that come within the terri-
tory of the United States. This means, in the view of the United States,
that its conduct cannot be evaluated in this case in relation to Article IV,
paragraph 1. The Court is thus said to lack jurisdiction to entertain the
submissions of Iran based on this text.

35. The Court observes in the first place that Article IV, paragraph 1,
unlike the other paragraphs of the same Article, does not include any ter-
ritorial limitation. The general guarantee made available by paragraph 1
has, on that account, a wider scope than the particular obligations laid
down by the other paragraphs in relation to expropriation, or acts of
interference with property or in relation to the management of enter-
prises. It follows that the Court cannot accept the arguments of the
United States on this point.

36. However, the Court is no more able to uphold the argument of
Iran. Article IV, paragraph 1, states that the nationals and companies of
one of the contracting parties, as well as their property and enterprises,
must be treated by the other party in a “fair and equitable” manner. This
text prohibits unreasonable or discriminatory measures that would impair
certain rights and interests of those nationals and companies. It con-
cludes by specifying that their legitimately acquired contractual rights
must be afforded effective means of enforcement. The whole of these pro-
visions is aimed at the way in which the natural persons and legal entities
in question are, in the exercise of their private or professional activities,
to be treated by the State concerned. In other words, these detailed pro-
visions concern the treatment by each party of the nationals and compa-
nies of the other party, as well as their property and enterprises. Such
provisions do not cover the actions carried out in this case by the United
States against Iran. Article IV, paragraph 1, thus does not lay down any
norms applicable to this particular case. This Article cannot therefore
form the basis of the Court’s jurisdiction.

17
OIL PLATFORMS (JUDGMENT) 817

37. It remains to consider what consequences, in terms of the jurisdic-
tion of the Court, can be drawn from Article X, paragraph 1, of the
Treaty of 1955.

That paragraph reads as follows: “Between the territories of the two High
Contracting Parties there shall be freedom of commerce and navigation.”

38. It has not been alleged by the Applicant that any military action
has affected its freedom of navigation. Therefore, the question the Court
must decide, in order to determine its jurisdiction, is whether the actions
of the United States complained of by Iran had the potential to affect
“freedom of commerce” as guaranteed by the provision quoted above.

39. Iran has argued that Article X, paragraph 1, does not contemplate
only maritime commerce, but commerce in general; that it protects this
without territorial restriction; and that, apart from the activities of pur-
chase and sale of goods, it covers those which, at a prior stage, enable the
goods to be made ready for exchange. As a result, the Court is said to
have jurisdiction to evaluate the lawfulness of the armed actions of the
United States in the light of this provision.

40. The United States, for its part, maintained that this was not the
case, and put forward in support of that argument a more restrictive
interpretation of the word “commerce” in the provision in question.
According to the United States, that word must be understood as being
confined to maritime commerce; as being confined to commerce between
the United States and Iran; and as referring solely to the actual sale or
exchange of goods.

41. The Court must indeed give due weight to the fact that, after Ar-
ticle X, paragraph 1, in which the word “commerce” appears, the rest of the
Article clearly deals with maritime commerce. Yet this factor is not, in the
view of the Court, sufficient to restrict the scope of the word to maritime
commerce, having regard to other indications in the Treaty of an intention
of the parties to deal with trade and commerce in general. The Court also
takes note in this connection of the recital in Article XXII of the Treaty
which states that the Treaty was to replace, inter alia, a provisional agree-
ment relating to commercial and other relations, concluded at Tehran on
14 May 1928. The Treaty of 1955 is thus a Treaty relating to trade and
commerce in general, and not one restricted purely to maritime com-
merce.

42. Also to be considered is the entire range of activities dealt with in
the Treaty — as, for example, the reference in Article IV to the freedom
of companies to conduct their activities, to enjoy the right to continued
control and management of their enterprises, and “to do all other things
necessary or incidental to the effective conduct of their affairs”.

43. In these circumstances, the view that the word “commerce” in
Article X, paragraph 1, is confined to maritime commerce does not
commend itself to the Court.

44, The Court does not have to enter into the question whether this
provision is restricted to commerce “between” the Parties. It is not con-

18
OIL PLATFORMS (JUDGMENT) 818

tested between them that oil exports from Iran to the United States were
— to some degree — ongoing at least until after the destruction of the
first set of oil platforms.

45. The Court must now consider the interpretation according to
which the word “commerce” in Article X, paragraph 1, is restricted to
acts of purchase and sale. According to this interpretation, the protection
afforded by this provision does not cover the antecedent activities which
are essential to maintain commerce as, for example, the procurement of
goods with a view to using them for commerce.

In the view of the Court, there is nothing to indicate that the parties to
the Treaty intended to use the word “commerce” in any sense different
from that which it generally bears. The word “commerce” is not restricted
in ordinary usage to the mere act of purchase and sale; it has connota-
tions that extend beyond mere purchase and sale to include “the whole of
the transactions, arrangements, etc., therein involved” (Oxford English
Dictionary, 1989, Vol. 3, p. 552).

In legal language, likewise, this term is not restricted to mere purchase
and sale because it can refer to

“not only the purchase, sale, and exchange of commodities, but also
the instrumentalities and agencies by which it is promoted and the
means and appliances by which it is carried on, and transportation
of persons as well as of goods, both by land and sea” (Black’s Law
Dictionary, 1990, p. 269).

Similarly, the expression “international commerce” designates, in its true
sense, “all transactions of import and export, relationships of exchange,
purchase, sale, transport, and financial operations between nations” and
sometimes even “all economic, political, intellectual relations between
States and between their nationals” (Dictionnaire de la terminologie du
droit international (produced under the authority of President Basdevant),
1960, p. 126 [translation by the Registry ]).

Thus, whether the word “commerce” is taken in its ordinary sense or in
its legal meaning, at the domestic or international level, it has a broader
meaning than the mere reference to purchase and sale.

46. Treaties dealing with trade and commerce cover a vast range of
matters ancillary to trade and commerce, such as shipping, transit of
goods and persons, the right to establish and operate businesses, protec-
tion from molestation, freedom of communication, acquisition and ten-
ure of property. Furthermore, in his Report entitled “Progressive Devel-
opment of the Law of International Trade”, the Secretary-General of the
United Nations cites, among a number of items falling within the scope
of the Law of International Trade, the conduct of business activities per-
taining to international trade, insurance, transportation, and other mat-
ters (United Nations, Official Records of the General Assembly, Twenty-

19
OIL PLATFORMS (JUDGMENT) 819

first Session, Annexes, Agenda item 88, doc. A/6396; also in Basic
Documents on International Trade Law, Chia-Jui Cheng (ed.), 2nd rev.
ed., p. 3).

The Court notes that the Treaty of 1955 also deals, in its general
articles, with a wide variety of matters ancillary to trade and commerce.

47. It should also be noted that, in the original English version, the
actual title of the Treaty of 1955 — contrary to that of most similar trea-
ties concluded by the United States at that time, such as the Treaty of
1956 between the United States and Nicaragua — refers, besides “Amity”
and “Consular Rights”, not to “Commerce” but, more broadly, to “Eco-
nomic Relations”.

48. The Court also notes that, in the decision in the Oscar Chinn case
(P.C.LJ., Series A/B, No. 63, p. 65), the Permanent Court of Interna-
tional Justice had occasion to consider the concept of freedom of trade
under Article I of the Convention of Saint-Germain. The dispute before
the Court arose in the context of measures taken by the Belgian Govern-
ment in relation to river traffic in the waterways of the Congo. The Per-
manent Court observed:

“Freedom of trade, as established by the Convention, consists in
the right — in principle unrestricted — to engage in any commercial
activity, whether it be concerned with trading properly so-called,
that is the purchase and sale of goods, or whether it be concerned
with industry, and in particular the transport business; or, finally,
whether it is carried on inside the country or, by the exchange of
imports and exports, with other countries.” (/bid., p. 84.)

The expression “freedom of trade” was thus seen by the Permanent
Court as contemplating not only the purchase and sale of goods, but also
industry, and in particular the transport business.

49. The Court concludes from all of the foregoing that it would be a
natural interpretation of the word “commerce” in Article X, paragraph 1,
of the Treaty of 1955 that it includes commercial activities in general —
not merely the immediate act of purchase and sale, but also the ancillary
activities integrally related to commerce.

50. The Court should not in any event overlook that Article X, para-
graph 1, of the Treaty of 1955 does not strictly speaking protect “com-
merce” but “freedom of commerce”. Any act which would impede that
“freedom” is thereby prohibited. Unless such freedom is to be rendered
illusory, the possibility must be entertained that it could actually be
impeded as a result of acts entailing the destruction of goods destined to
be exported, or capable of affecting their transport and their storage with
a view to export.

The Court points out in this respect that the oil pumped from the plat-
forms attacked in October 1987 passed from there by subsea line to the

20
OIL PLATFORMS (JUDGMENT) 820

oil terminal on Lavan Island and that the Salman complex, object of the
attack of April 1988, was also connected to the oil terminal on Lavan by
subsea line.

51. The Court notes that Iran’s oil production, a vital part of that
country’s economy, constitutes an important component of its foreign
trade.

On the material now before the Court, it is indeed not able to deter-
mine if and to what extent the destruction of the Iranian oil platforms
had an effect upon the export trade in Iranian oil; it notes nonetheless
that their destruction was capable of having such an effect and, conse-
quently, of having an adverse effect upon the freedom of commerce as
guaranteed by Article X, paragraph 1, of the Treaty of 1955. It follows
that its lawfulness can be evaluated in relation to that paragraph. The
argument made on this point by the United States must be rejected.

52. The conclusions which the Court has reached above as to Ar-
ticle X, paragraph 1, are confirmed by the nature of the Treaty of which
this provision forms a part. Its Article I has, as already observed, been
drafted in terms so general that by itself it is not capable of generating
legal rights and obligations. This is not to say, however, that it cannot be
invoked for the purpose of construing other provisions of the Treaty. The
Court cannot lose sight of the fact that Article I states in general terms
that there shall be firm and enduring peace and sincere friendship between
the Parties. The spirit and intent set out in this Article animate and give
meaning to the entire Treaty and must, in case of doubt, incline the
Court to the construction which seems more in consonance with its over-
all objective of achieving friendly relations over the entire range of activi-
ties covered by the Treaty.

53. In the light of the foregoing, the Court concludes that there exists
between the Parties a dispute as to the interpretation and the application
of Article X, paragraph 1, of the Treaty of 1955; that this dispute falls
within the scope of the compromissory clause in Article XXI, para-
graph 2, of the Treaty; and that as a consequence the Court has jurisdic-
tion to entertain this dispute.

54. Since it must thus reject the preliminary objection raised by the
United States, the Court notes that the submissions whereby Iran
requested it, on a subsidiary basis, to find that the objection did not
possess, in the circumstances of the case, an exclusively preliminary
character, no longer have any object.

x * %

21
OIL PLATFORMS (JUDGMENT) 821

55. For these reasons,

THE COURT,

(1) Rejects, by fourteen votes to two, the preliminary objection of the
United States of America according to which the Treaty of 1955 does not
provide any basis for the jurisdiction of the Court;

IN FAVOUR: President Bedjaoui; Judges Guillaume, Shahabuddeen, Weera-

mantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin,
Ferrari Bravo, Higgins, Parra-Aranguren; Judge ad hoc Rigaux;

AGAINST: Vice-President Schwebel; Judge Oda;

(2) Finds, by fourteen votes to two, that it has jurisdiction, on the basis
of Article XXI, paragraph 2, of the Treaty of 1955, to entertain the
claims made by the Islamic Republic of Iran under Article X, para-
graph 1, of that Treaty.

IN FAVOUR: President Bedjaoui; Judges Guillaume, Shahabuddeen, Weera-
mantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin,
Ferrari Bravo, Higgins, Parra-Aranguren; Judge ad hoc Rigaux;

AGAINST: Vice-President Schwebel; Judge Oda.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twelfth day of December, one thou-
sand nine hundred and ninety-six, in three copies, one of which will be
placed in the archives of the Court and the others transmitted to the
Government of the Islamic Republic of Iran and the Government of the
United States of America, respectively.

(Signed) Mohammed BEDIAOUI,
President.

(Signed) Eduardo VALENCIA-OsPINA,
Registrar.

Judges SHAHABUDDEEN, RANJEVA, HIGGINS and PARRA-ARANGUREN and
Judge ad hoc RiGAux append separate opinions to the Judgment of the
Court.

Vice-President SCHWEBEL and Judge Opa append dissenting opinions
to the Judgment of the Court.

(Initialled) M.B.
(Initialled) E.V.O.

22


84

OBSERVATIONS DE LORD FINLAY
{Traduction.]

Je suis d'accord sur les conclusions auxquelles est arrivée la Cour,
et les observations qui suivent visent simplement quelques-uns des
motifs énoncés à l’appui d’une de ces conclusions.

J'avais l'intention de présenter un avis dissident, fondé sur les.
considérations que 1° la Pologne a le droit d’être admise au bénéfice
de l'armistice et que 2° la première clause du Protocole de Spa ren-
dait nul le transfert, effectué par le Reich, de l’usine de Chorzéw.

En préparant mon avis, j'ai examiné à nouveau les preuves affé-
rentes à cette partie de l'affaire. Ce nouvel examen a eu pour résultat
de me confirmer dans mon opinion sur le premier de ces deux points
mais non sur le second.

1) Il était notoire que, si les Alliés triomphaient, l’indépendance
de la Pologne serait l’une des conditions de la paix. Toutes les Parties
à l'armistice doivent l’avoir conclu avec cette idée présente à leur
esprit et l’intention a dû être que la Pologne, dont l’armée avait
combattu aux côtés des Alliés en qualité d’armée autonome, fût liée
par les conditions de l’armistice et admise au bénéfice de ces con-
ditions, lorsqu'elle commencerait à exister en tant qu’Etat reconnu.
Ceci constituerait un jus guesitum, un droit acquis pour le nouvel
État aussitôt que ce dernier entrerait en existence. Or, dans le
domaine des affaires, il arrive trés fréquemment que, par le moyen
de trusts ou de toute autre maniére, soient conclus, au nom de
sociétés non encore enregistrées, des contrats prenant effet lors
de l'enregistrement de la Société; selon moi, les États alliés ont
conclu Yarmistice au nom de la Pologne, qui était sur le point
de devenir un Etat, aussi bien qu’en leur nom propre.

2) Mais, sur le second des points indiqués plus haut, le nouvel
examen auquel je me suis livré m’a conduit 4 modifier mon opinion.
Le paragraphe du protocole, prévoyant la nullité de toute disposi-
tion contraire aux termes de cet instrument, figure a la fin de la
première clause; il devrait, selon moi, étreinterprété par rapport aux.
termes employés dans la partie antérieure de cette clause, où il est
dit expressément que le Gouvernement allemand ne doit prendre
aucune mesure pouvant diminuer, sous une forme quelconque, la
valeur du domaine allemand, «gage commun des Alliés pour le
recouvrement des réparations auxquelles ils ont droit ».
85 OBSERVATIONS DE LORD FINLAY

La disposition selon laquelle toute mesure contraire aux stipu-
lations dont il s’agit doit être considérée comme nuile et non avenue,
devrait étre interprétée comme n’annulant les stipulations en ques-
tion que pour autant qu’intervient l’intention exprimée dans la
premiére partie de la clause, savoir la protection du gage des Alliés
pour le recouvrement des sommes dues au titre des réparations.
S'il en est ainsi, cette disposition, aux fins de la présente affaire, ne
saurait avoir d’effet à l’égard du transfert effectué du Reich à la
Société Oberschlesische. |

Je suis donc d'accord sur la conclusion à laquelle est arrivée la
Cour dans cette partie de l'affaire, mais non sur la totalité du
raisonnement qui sert de base à cette conclusion.

(Signé) FINLAY.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA COMPETENCE
EN MATIERE DE PECHERIES

(ESPAGNE c. CANADA)

ORDONNANCE DU 8 MAI 1996

1996

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

FISHERIES JURISDICTION CASE
(SPAIN v. CANADA)

ORDER OF 8 MAY 1996
Mode officiel de citation:

Compétence en matiére de pécheries (Espagne c. Canada),
ordonnance du 8 mai 1996, C.IJ. Recueil 1996, p. 58

Official citation:

Fisheries Jurisdiction (Spain v. Canada),
Order of 8 May 1996, I.C.J. Reports 1996, p. 58

N° de vente:
ISSN 0074-4441 Sales number 676

ISBN 92-1-070739-7

58

INTERNATIONAL COURT OF JUSTICE

YEAR 1996 1996

; 8 May
General List

8 May 1996 No. 96

FISHERIES JURISDICTION CASE

(SPAIN vy. CANADA)

ORDER

Present: President BEDJAOUI; Vice-President SCHWEBEL; Judges Opa,
GUILLAUME, SHAHABUDDEEN, WEERAMANTRY, RANJEVA, HERCZEGH,
SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN, FERRARI BRAVO,
Hicains, PARRA-ARANGUREN; Judges ad hoc LALONDE, TORRES
BERNARDEZ; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Article 48 of the Statute of the Court and to
Articles 31, 44 and 45, paragraph 2, of the Rules of Court,

Makes the following Order :

Having regard to the Application filed in the Registry of the Court on
28 March 1995, whereby the Kingdom of Spain instituted proceedings
against Canada with respect to a dispute concerning certain aspects of
the jurisdiction exercised by Canada in relation to fisheries,

Having regard to the Order dated 2 May 1995, whereby, taking into
account the agreement concerning the procedure reached between the
Parties, the President of the Court decided that the written proceedings

4
FISHERIES JURISDICTION (ORDER 8 V 96) 59

would first be addressed to the question of the jurisdiction of the Court
to entertain the dispute and fixed 29 September 1995 and 29 February
1996 as the time-limits for the filing, respectively, of the Memorial of
Spain and the Counter-Memorial of Canada on that question,

Having regard to the Memorial and the Counter-Memorial duly filed
by the Parties within those time-limits;

Whereas at a meeting between the President of the Court and the
Agents of the Parties on 17 April 1996 the Agent of Spain expressed his
Government’s wish to be authorized to file a Reply and the Agent of
Canada indicated that his Government opposed this; and whereas each
of the Parties subsequently confirmed its views in this regard in writing,
Canada in letters from its Agent dated 22 April and 3 May 1996, and
Spain in letters from its Agent dated 25 April and 7 May 1996;

Whereas the Court is sufficiently informed, at this stage, of the conten-
tions of fact and law on which the Parties rely with respect to its jurisdic-
tion in the case and whereas the presentation, by them, of other written
pleadings on that question therefore does not appear necessary;

THE Court,
By fifteen votes to two,

Decides not to authorize the filing of a Reply by the Applicant and a
Rejoinder by the Respondent on the question of the jurisdiction of the
Court to entertain the dispute;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda,
Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleisch-
hauer, Koroma, Ferrari Bravo, Higgins, Parra-Aranguren; Judge ad hoc
Lalonde;

AGAINST: Judge Vereshchetin; Judge ad hoc Torres Bernardez;

Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this eighth day of May, one thousand nine
hundred and ninety-six, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of
the Kingdom of Spain and the Government of Canada, respectively.

(Signed) Mohammed BEDJAOUI,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.
FISHERIES JURISDICTION (ORDER 8 V 96) 60

Judge ad hoc TORRES BERNARDEZ appends a dissenting opinion to the
Order.

(Initialled) M.B.
(Initialled) E.V.O.


170

DISSENTING OPINION OF JUDGE RANJEVA
[Translation]

I find it difficult to subscribe to the conclusion in the Judgment that:
“Czechoslovakia was entitled to proceed, in November 1991, to the ‘pro-
visional solution’” and “Czechoslovakia was not entitled to put into
operation, from October 1992, this ‘provisional solution’” (para. 155 (1) (B)
and (C)).

From the point of view of logic, these two propositions, even sepa-
rated, are incompatible. The construction of public works has as its ulti-
mate purpose their operation. How then is it possible to reconcile the
lawfulness of constructing Variant C with the unlawfulness of putting it
into operation?

Here I cannot subscribe to the analysis by the majority of the Members
of the Court on the true role of the wrong done by Hungary, which is the
subject-matter of the first paragraph of the dispositif, in the chain of
intersecting wrongs to which the Court has, rightly, drawn attention in
paragraph 150 of its reasoning.

The unlawfulness of the Hungarian decision to suspend, then abandon,
the works may not, in law, be called in question. Hungary has not fully
performed its obligations under the Budapest Treaty. Furthermore, the
chronology of events is unfavourable to the Hungarian cause. However,
the situation in fact and in law is not as simple as it appears on reading
the Court’s analysis of it.

By favouring the chronological option in considering the facts, the
majority of the Court seems to give too simple an analysis of the
sequence of events. The structure of the questions set out in Article 2 of
the Special Agreement has not helped the Court in its task by disinclining
it to attach any importance to the legal effects of the intersecting wrongs
which form the cornerstone of the dispute that it had to decide.

The dual purpose of the Court’s task under the terms of Article 2 of
the Special Agreement is the subject of an excellent analysis in para-
graphs 130 and 131 of the present Judgment. My disagreement, though,
relates to the place of the intersecting wrongs which, in the eyes of the
majority of the Members of the Court, is pertinent only to the prescrip-
tive part of the Judgment, whereas in my opinion it constitutes the
cornerstone of the declaratory part.

The question which the Court could, or even should, have asked itself
is whether in the absence of Hungary’s first act of unlawfulness in 1989,
the subsequent wrongs would have occurred and in particular whether
the decision to abandon the works would have been taken in November

167
GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. RANJEVA) 171

1991. That question, a hypothetical one, should have been raised, in so
far as at no point does the Court consider the point of determining
whether the Hungarian wrong caused a sufficiently proven risk which
forced the Czech and Slovak Federal Republic to repair the damage by
the construction and putting into operation of Variant C — an issue
which should have led the Court to say whether one of the wrongs could
have been absorbed by another, so that the subsequent course of wrong-
ful acts had only one true cause.

That hypothetical question should have been asked in limine given
the risk of confusion built into the structure of Article 2, paragraph |, of
the Special Agreement. Because of the classification of the facts rele-
vant to the case into two blocks of questions (a) and (6), combined
with the Hungarian decision of 1989 being taken as the starting-
point for the sequence of events, a bilaterally comprehensive approach
to the issues was encouraged to the detriment of an overall vision
of the relationship between the two Parties, since the bilaterally
comprehensive view produced the illusion of a quasi-mechanistic
relationship between their respective conduct. Such an analysis would
have been well founded if the blocks (a} and (b) of facts described in
the question were on the one hand isolated and on the other hand
instantaneous in effect. Points (a) and (h) describe, within an overall
set of facts, the different acts which are imputable, respectively and
on different dates, to Hungary and to the Czech and Slovak Federal
Republic. That binary classification does not relate the sequence of
events.

In the present case, an analysis of the facts cannot be undertaken with-
out reference to the unbroken stream of acts and conduct of an ambigu-
ous nature that developed. The Project gives the impression of having
been, ab initio, the victim of a number of incidents and dogged by bad
luck. Thus, as the Court acknowledges, each of the Parties has committed
distinct wrongs. However, contrary to the observation of the majority of
the Court, I consider that each wrong played the role of catalyst for the
other. This is not a case of a single wrong committed at the same time by
the two Parties, nor of two successive wrongs, but of distinct wrongs
which together led to the existence of the situation currently before the
Court. Each Party contributed to creating a wrong which progressively
helped to cause the situation which is the subject-matter of the present
dispute in its entirety. It was necessary to put the interwoven nature of
the conduct and the wrongs in that light since, given the dual task of the
Court under Article 2 of the Special Agreement, the reciprocal nature of
the wrongs raises the problem of causality in the present dispute as a
whole.

The general scheme of this Judgment is based on the idea that the
Hungarian wrong is the causa prima in law of the dispute. However, con-
trary to my opinion, the majority of the Members of the Court sees its
scope as limited solely to the obligation of reparation: the intersecting
nature of the wrongs enables the Court to recommend “the zero option”

168
GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. RANJEVA) 172

as far as reparation of the damage is concerned, as it emerges from
operative paragraph 2 D in the terms the Court has chosen!.

With all the respect I have for the Court, I do not believe that the obli-
gation of reparation is the only area on which the intersecting nature of
the wrongs has had a bearing. The concept of violation of a norm, by the
commission of unlawful acts, is meaningless in absolute terms; it is only
meaningful in relation to the rights of each Party under the 1977 Treaty
and to the discretionary power of subjective characterization by a party
itself which is ascribed to it in law. The idea of violation thus enables
each party to infer the consequences from a course of conduct which it
has characterized as unlawful beforehand, in a discretionary manner,
These considerations lead on the one hand to consideration of the con-
sequences of the Hungarian wrong (para. 155 (1) (A)) for the sequence of
events and on the other hand to criticism of paragraph 155 (1) (B) of the
present Judgment.

No peremptory conclusion can be formulated as to the sequence of
facts which make up the conduct of each Party. The concept of original
cause may only be established, in the present case, on two conditions:
first, that of its appearance ex nihilo in the chain of events and, second,
that of its effectiveness as far as the actual genesis of the events is con-
cerned. In order to satisfy these requirements, it would have been neces-
sary for the wrong committed by Hungary to have borne no relation
whatsoever to any conduct on the part of Czechoslovakia. But, in the
present case, given the chaotic nature of the relations between the two
Parties in dispute, it is difficult to seek to introduce a more or less un-
differentiated mechanistic analysis into this discussion. Contrary to the
requirements inherent in the law of liability in domestic law, the case is
not about finding at all costs who is liable, nor about making a finding of
unlawfulness per se which is not the cause of the sequence of respective
actions of the Parties. Evidence of unlawfulness is not sufficient to estab-
lish a link of direct causality between the Hungarian conduct and the
Czechoslovak reaction.

The historical and technical details show that projects for regulating
the Danube in that portion of the river’s course had been envisaged since
the end of the Second World War. In the framework of such programmes
of co-operation, each party was pursuing objectives which were not
necessarily the same of those of its partner. Thus the Czech and Slovak
Federal Republic expressed a particular interest in hydroelectricity and

! The zero option is linked to a certain interpretation of the rule of Pomponius accord-
ing to which “Quod si quis ex culpa sua sentit, non intelligitur damnum sentire” (Digest,
“De regula juris”, 50, 17). In other words, a claimant is deprived of his right to reparation if
he can be accused of wrongdoing, whether or not it is the cause of the loss he has suffered.
The proposition of Pomponius was ruled out by canon law as individualization of liability
for fault gradually developed and mechanisms for presuming liability weakened.

169
GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. RANJEVA) 173

in navigation. The Nagymaros works were designed to be put into opera-
tion when the installations at Gabtikovo were operating in peak-load
time. And it is apparent from the various earlier projects that, for many
a year, the possibility of constructing the works on Czechoslovak terri-
tory alone had not been ruled out. Those details, relating to the context
of both the Project and the present dispute, explain what was at stake,
without however constituting a justification of the Hungarian decision.
From the legal point of view, the conclusion of the Budapest Treaty
renders these discussions nugatory. The only certainty stems from the
fact that the Hungarian decision to suspend took shape in an atmosphere
of much suspicion and mistrust and was a well-premeditated act.

In my opinion, the Hungarian decision did not constitute the cause,
but the ground or motive taken into consideration by the Czech and Slo-
vak Federal Republic in order to justify its subsequent conduct. Can it
for all that, in law, be considered as being the source from which the sub-
sequent wrongs came into being? A reply to that question must take into
account the strategy of raising the stakes in the context of the pressure/
negotiations game. First of all, the factual chronology is unfavourable to
Hungary if one considers the sequence of events in terms of linear succes-
sion. However, with the passage of time, the links of causality with the
initial wrong fade and weaken whereas the conduct of each side escalates
more and more. Thus, in the present case, there was reason to determine
the causal nature of the unlawfulness inherent in the Hungarian conduct
described in paragraph 1 A of the dispositif. If we consider the question
which forms the subject-matter of the second paragraph in terms of the
relations between the two Parties, it is the facts and wrongs seen as a
whole that should be taken into consideration; it is therefore difficult, in
the absence of a presumption of responsibility, to consider the unlawful-
ness of the commissioning of Variant C as the direct consequence of the
Hungarian decision of 1989. It seemed necessary to me however to dis-
pose of this preliminary question as a matter of logic; that being so, the
intersection of wrongs was the crux of the second question.

The inconsistent nature of the conclusion reached by the Court, in
operative paragraphs 1B and IC (para. 155), shows, if it needs dem-
onstrating, the artificial nature of the distinction between “proceeding to
the provisional solution” and its “putting it into operation”. This distinc-
tion might be justified if the theory of approximate application or that of
damage limitation were based on treaty law. The Court rightly rejected
the arguments based on these principles, which may find their place in
constructs of domestic law within a system of presumption of liability.

Once, though, the Court has accepted the intersecting nature of the
wrongs committed by the Parties, the distinction between the construc-
tion of Variant C on the one hand and putting it into operation on the
other is purely artificial in the context of the pressure/negotiations rela-
tionship game.

170
GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. RANJEVA) 174

The divisibility of Czechoslovakia’s conduct according to the Judg-
ment is said to be based on the use in the Special Agreement of the copu-
lative conjunction “and” in order to express the link between the two
stages of process of accomplishment of its decision. However, the link
ensured by the conjunction, from a grammatical point of view, is char-
acterized by the fact that the elements of the process are of the same
nature, and also by the immediacy of their succession. In those circum-
stances, contrary to what the majority of the Court presumes, and the
consistent attitude of Czechoslovakia bears this out, there has never
been, in its plans, any question of not putting Variant C into operation
once the decision to proceed to it had been taken. A continuing act seems
the most relevant characterization, both as regards the general sequence
of events (see above) and the overt behaviour of Czechoslovakia and then
of Slovakia.

For in order that the distinction made in the Judgment be founded,
there must actually exist in advance an equipollence between “proceeding
to the provisional solution” and “putting it into operation”. That is in
order to avoid one of the elements being absorbed by the other. How-
ever, the Czechoslovak decision is neither meaningful nor significant
unless the subsequent course of events leads to a single result: the putting
into operation of Variant C, the so-called “provisional solution”.

On consideration, and contrary to the analysis in the Judgment, the
unlawfulness of Czechoslovakia’s conduct cannot be limited to the mere
putting into operation of the “provisional solution” because of the status
of the Danube in international law. I cannot subscribe to the idea that
territorial sovereignty confers on a State the faculty of altering unilater-
ally the use of an international watercourse whose legal régime has
formed the subject-matter of an international treaty. In these circum-
stances, it is not the construction or the non-construction of works on the
territory of one or the other Party per se nor solely the diversion of the
course of the Danube which constitute the only breaches of the obliga-
tions under the 1977 Treaty. The fact of substituting and implementing a
national project in place of a joint international project is a serious con-
travention of the provisions of the Treaty of Budapest. Limiting the sanc-
tion for unlawfulness to the factual consequences of the breach of inter-
national obligations but not to the breach itself represents “a precedent
with disturbing implications for treaty relations and the integrity of the
rule pacta sunt servanda” (see Judgment, para. 114). These considerations
explain the validity of the proposition in Article 25, paragraph 1, of the
International Law Commission Draft Articles on State Responsibility,
on unlawfulness of a continuing character:

“The breach of an international obligation by an act of the State
having a continuing character occurs at the moment when that act
begins. Nevertheless, the time of commission of the breach extends
over the entire period during which the act continues and remains
not in conformity with the international obligation.”

171]
GABCIKOVO-NAGYMAROS PROJECT (DISS. OP. RANJEVA) 175

In the final analysis, how can one justify the unlawfulness of Variant C
solely in terms of its being put into operation, when there is no legal
foundation in the 1977 Treaty for this solution, in the opinion of the
Judgment, once the Court has dismissed the arguments of approximate
application and obligation to limit damage, as well as the proportionality
between the wrong committed by Hungary and the commissioning of
Variant C?

(Signed) Raymond RANIJEVA.

172


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

NORTH SEA CONTINENTAL SHELF CASE
(DENMARK/FEDERAL REPUBLIC OF GERMANY)

ORDER OF 8 MARCH 1967

1967

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU PLATEAU CONTINENTAL
DE LA MER DU NORD

(DANEMARK/REPUBLIQUE FEDERALE D’ALLEMAGNE)

ORDONNANCE DU 8 MARS 1967
Official citation:

North Sea Continental Shelf (Denmark/Federal Republic of Germany),
Order of 8 March 1967, I.C.J. Reports 1967, p. 3

Mode officiel de citation:

Plateau continental de la mer du Nord (Danemark/République fédérale
d’ Allemagne), ordonnance du 8 mars 1967, C.I.J. Recueil 1967, p. 3.

Ne de vente: 309

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1967

8 mars 1967

AFFAIRE DU PLATEAU CONTINENTAL
DE LA MER DU NORD

(DANEMARK/RÉPUBLIQUE FÉDÉRALE D'ALLEMAGNE)

ORDONNANCE

Le juge faisant fonction de Président de la Cour internationale de
Justice en vertu de l’article 12 du Règlement de la Cour,

Vu les articles 40 et 48 du Statut de la Cour et les articles 32 et 37 du
Règlement de la Cour,

Considérant que, par lettre du 16 février 1967, reçue au Greffe le
20 février 1967, le ministre des Affaires étrangères du Royaume des
Pays-Bas a adressé au Greffier un exemplaire original d’un compromis,
signé à Bonn le 2 février 1967 pour le Gouvernement du Royaume du
Danemark et le Gouvernement de la République fédérale d’Allemagne,
soumettant à la Cour internationale de Justice un différend entre le
Danemark et la République fédérale d'Allemagne relatif à la délimi-
tation du plateau continental de la mer du Nord entre le Danemark et
la République fédérale d'Allemagne:

Considérant que le ministre des Affaires étrangères des Pays-Bas a
également joint à sa lettre un exemplaire original d’un protocole, signé
à Bonn le 2 février 1967 pour le Gouvernement du Danemark, le Gouver-
nement de la République fédérale d’Allemagne et le Gouvernement des
Pays-Bas, où il est prévu que ledit compromis sera notifié par le Gouver-
nement des Pays-Bas à la Cour internationale de Justice;

Considérant qu’en vertu de son article 3 le compromis entre en
vigueur le jour de sa signature;

4

1967
8 mars
Rôie général
n° 51
PLATEAU CONTINENTAL DE LA MER DU NORD (ORDONNANCE 8 III 67) 4

Considérant que, par lettres du 20 février 1967, le Gouvernement du
Danemark et le Gouvernement de la République fédérale d'Allemagne
ont été dûment informés de la notification du compromis;

Considérant que, par lettre du 22 février 1967, l’ambassadeur du
Danemark aux Pays-Bas a informé le Greffier que M. Bent Jacobsen,
avocat à la Cour suprême du Danemark, avait été désigné comme agent
du Danemark;

Considérant que, par lettre du 1% mars 1967, l’ambassadeur de la
République fédérale d'Allemagne aux Pays-Bas a informé le Greffier que
M. Günther Jaenicke, professeur à l’Université Johann Wolfgang Geethe,
avait été désigné comme agent de la République fédérale d’Allemagne;

Considérant que, dans son article 2, le compromis fait état d’un
accord des Parties selon lequel, sans que cela préjuge en rien la charge
de la preuve, les pièces de la procédure écrite seraient déposées devant
la Cour dans l’ordre suivant:

1. Mémoire de la République fédérale d’Allemagne devant être soumis
dans les six mois qui suivront la notification du compromis;

2. Contre-mémoire du Danemark devant être soumis dans les six
mois qui suivront la remise du mémoire allemand;

3. Réplique allemande suivie d’une duplique danoise, devant être
soumises dans des délais à fixer par la Cour;

Tenant compte de cet accord, comme il est indiqué à [article 37,
paragraphe 3, du Règlement de la Cour,

Fixe au 21 août 1967 la date d’expiration du délai pour le dépôt du
mémoire de la République fédérale d’Allemagne et au 20 février 1968 la
date d’expiration du délai pour le dépôt du contre-mémoire du Dane-
mark;

Réserve la suite de la procédure.

Fait en anglais et en francais, le texte anglais faisant foi, au palais de
la Paix, 4 La Haye, le huit mars mil neuf cent soixante-sept, en trois
exemplaires, dont l’un restera déposé aux archives de la Cour et dont les
autres seront transmis respectivement au Gouvernement du Royaume
du Danemark et au Gouvernement de la République fédérale d’Alle-
magne.

Le juge faisant fonction de Président,
(Signé) Gerald FITZMAURICE.

Le Greffier,
{Signé} S. AQUARONE.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A
L’INCIDENT AERIEN DU
27 JUILLET 1955

(ÉTATS-UNIS D’AMERIQUE c. BULGARIE)

ORDONNANCE DU 9 SEPTEMBRE 1959

1959

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
AERIAL INCIDENT OF
27 JULY 1955

(UNITED STATES OF AMERICA v. BULGARIA)

ORDER OF 9 SEPTEMBER. 1959
La présente ordonnance doit étre citée comme suit:
« Affaire relative à Vincident aérien du 27 juillet 1955
(États-Unis d'Amérique c. Bulgarie),
Ordonnance. du 9 septembre 1959: C.I. J. Recueil 1959, p. 270.»

This Order should be cited as follows:

“Case concerning the Aerial Incident of 27 July 1955
(United States of America v. Bulgaria),
Order of 9 September 1959: I.C.J. Reports 1959, p. 270.”

N° de vente : 216
Sales number

270

INTERNATIONAL COURT OF JUSTICE

YEAR 1959
g September 1959

CASE CONCERNING THE
AERIAL INCIDENT OF

27 JULY 1955
(UNITED STATES OF AMERICA v. BULGARIA)

ORDER

The President of the International Court of Justice,

having regard to Article 48 of the Statute of the Court and to
Article 62 of the Rules of Court;

Having regard to the Application filed in the Registry on
28 October 1957 whereby the Government of the United States of
America instituted proceedings against the Government of the
People’s Republic of Bulgaria;

Having regard to the Order of 26 November 1957 fixing 2 June
1958 as the time-limit for the filing of the Memorial of the Govern-
ment of the United States of America;

Having regard to the Order of 27 January 1958 fixing 9 December
1958 as the time-limit for the filing of the Counter-Memorial of the
Government of the People’s Republic of Bulgaria;

1959

9 September

General List:
No. 36

Having regard to the Order of 19 May 1958 extending to 2 Sep- |

tember 1958 the time-limit fixed for the filing of the Memorial of
the Government of the United States of America and to 9 June 1959
the time-limit for the filing of the Counter-Memorial of the Govern-
ment of the People’s Republic of Bulgaria;

Having regard to the Order of 12 August 1958, whereby the
time-limit previously fixed for the Memorial of the Government of
the United States of America at 2 September 1958 was extended

4
AERIAL INCIDENT (U.S.A. Y. BULGARIA) (ORDER Q IX 59) 271

to 2 December 1958, the time-limit for the Counter-Memorial of
the Government of the People’s Republic of Bulgaria remaining
fixed at 9 June 1959;

Having regard to the Memorial filed by the Government of the
United States of America within the time-limit fixed;

Having regard to the Order of 8 October 1958 extending to
9 September 1959 the time-limit fixed for the filing of the Counter-
Memorial of the Government of the People’s Republic of Bulgaria;

Whereas, within the time-limit so fixed, the Government of the
People’s Republic of Bulgaria filed a document setting forth certain
Preliminary Objections and asking the Court to adjudge and declare
that the Court is without jurisdiction in the case concerning the
Aerial incident of 27 July 1955 and that the Application of the
Government of the United States of America, filed in the Registry
of the Court on 28 October 1957, is inadmissible;

Whereas, accordingly, by virtue of the provisions of Article 62,
paragraph 3, of the Rules of Court, the proceedings on the merits
are suspended and a time-limit has to be fixed for the presentation
by the other Party of a written statement of its Observations and
Submissions on the Preliminary Objections;

Fixes 9 November 1959 as the time-limit within which the
Government of the United States of America may present a written
statement of its Observations and Submissions on the Objections
raised by the Government of the People’s Republic of Bulgaria.

Done in French and in English, the French text being authori-
tative, at the Peace Palace, The Hague, this ninth day of September
one thousand nine hundred and fifty-nine, in three copies, one of
which will be placed in the archives of the Court and the others
transmitted to the Government of the United States of America and
to the Government of the People’s Republic of Bulgaria respectively.

(Signed) Helge KLAESTAD,
President.

(Signed) GARNIER-COIGNET,
Deputy-Registrar.