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SEPARATE OPINION OF JUDGE BUERGENTHAL

Agreement with Court’s rejection of Iran’s claim against the United States
under Article X, paragraph 1, of the 1955 Treaty — Agreement, mutatis
mutandis, with rejection of United States counter-claim under same Article —
Violation of non ultra petita rule by Court — Erroneous finding regarding rele-
vance of Article XX, paragraph 1 (d), has no place in dispositif — Court’s lack
of jurisdiction to interpret Article XX, paragraph 1 (d), once it held that United
States did not violate Article X, paragraph 1 — Article 31, paragraph 3 (c), of
Vienna Convention on the Law of Treaties not a valid basis for interpretation of
Article XX, paragraph 1 (d), of Treaty by reference to other rules of interna-
tional law not subject to Court’s jurisdiction — Flawed fact-finding process —
Undefined standard of proof.

1. The Court’s Judgment in this case adopts two decisions with which
I agree and one with which I disagree. That is, I associate myself with
the Court’s holdings that the United States of America did not breach
Article X, paragraph 1, of the 1955 Treaty between it and Iran, and
that, therefore, Iran’s claim for reparation must be rejected. I also agree
with the Court’s decision rejecting the counter-claim interposed by the
United States against Iran. In my view that decision of the Court is justi-
fied for the very reasons, mutatis mutandis, that led the Court to hold,
in paragraph 1 of the dispositif, that the United States did not breach
the obligations it owed Iran under Article X, paragraph 1, of the 1955
Treaty.

2. But the Court also purports to find in paragraph 1 of the dispositif
of the Judgment that the actions of the United States, in attacking certain
Iranian oil platforms, cannot be justified under Article XX, para-
graph 1 (d), of the Treaty “as interpreted in the light of international law
on the use of force”. That pronouncement has no place in the Judgment,
much less in the dispositif, and I therefore dissent from it for the reasons
set out in this separate opinion.

a * x
3. The Court’s Judgment, as it relates to Article XX, paragraph 1 (d),
is seriously flawed for a number of reasons. First, it makes a finding with
regard to Article XX, paragraph 1 (d), of the 1955 Treaty that violates
the non ultra petita rule, a cardinal rule governing the Court’s judicial

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process, which does not allow the Court to deal with a subject in the dis-
positif of its judgment that the parties to the case have not, in their final
submissions, asked it to adjudicate. Second, the Court makes a finding on
a subject which it had no jurisdiction to make under the dispute resolu-
tion clause — Article XXI, paragraph 2 — of the 1955 Treaty, which was
the sole basis of the Court’s jurisdiction in this case once it found that the
United States had not violated Article X, paragraph 1, of the Treaty.
Third, even assuming that the Court had the requisite jurisdiction to
make the finding regarding Article XX, paragraph 1 (d), its interpreta-
tion of that Article in light of the international law on the use of force
exceeded its jurisdiction. Finally, I believe that the manner in which the
Court analyses the evidence bearing on its application of Article XX,
paragraph 1 (d), is seriously flawed.

I. VIOLATION OF THE NON ULTRA PETITA RULE

4. In its Judgment, the Court holds that the United States did not
breach Article X, paragraph 1, of the 1955 Treaty. In their respective sub-
missions, Iran asked the Court to find that the United States attacks
on Iran’s oil platforms violated Article X, paragraph 1, of the Treaty,
whereas the United States asked the Court to reject that claim. In decid-
ing the question dividing the Parties, Article XX, paragraph 1 (d), of the
Treaty would have been relevant only if the Court had concluded that the
United States had violated Article X, paragraph 1. That is, had the Court
found such a violation, the question would then arise whether the
measures taken by the United States were nevertheless not “precluded”
by virtue of the provisions of Article XX, paragraph | (d). That Article
reads as follows:

“1. The present Treaty shall not preclude the application of
measures:

(d) necessary to fulfil 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.”

5. In other words, Article XX, paragraph 1 (d), is intended to come
into play or is relevant only if a party to the Treaty is found to have vio-
lated one of its substantive provisions. In that case, Article XX, para-
graph | (d), might provide an excuse or defence against the charge of a

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violation, provided, of course, that the challenged measures satisfied
the requirements of that Article. This function of Article XX, para-
graph 1 (d) — its sole function — was recognized by the Court in Mili-
tary and Paramilitary Activities in and against Nicaragua ( Nicaragua v.
United States of America). In that case, when interpreting a comparable
provision of the United States-Nicaragua Treaty of 1956, the Court said:

“Since Article XXI of the 1956 Treaty contains a power for each
of the parties to derogate from the other provisions of the Treaty,
the possibility of invoking the clauses of that Article must be con-
sidered once it is apparent that certain forms of conduct by the
United States would otherwise be in conflict with the relevant pro-
visions of the Treaty.” (Merits, Judgment, I.C.J. Reports 1986,
p. 117, para. 225.)

Moreover, in its Judgment on the Preliminary Objection in the instant
case (U.C.J. Reports 1996 (IT), p. 811, para. 20), the Court characterized
the provision as a “possible defence on the merits to be used should the
occasion arise”. Obviously, such an occasion would arise only if a party
to the Treaty is found to have violated some other provision of the
Treaty and sought to invoke Article XX, paragraph 1 (d), as a defence.

6. All this does not mean that in analysing the case, the Court is
debarred in principle from dealing first with Article XX, paragraph 1 (d),
if one of the Parties relies on that Article as a defence. But once the Court
concludes that Article XX, paragraph 1 (d), does not provide a valid
defence and makes the further finding that Article X, paragraph 1, has
not been violated, the non ultra petita rule prevents the Court from mak-
ing a specific finding in its dispositif that the challenged action, while not
a violation of Article X, paragraph 1, is nevertheless not justified under
Article XX, paragraph 1 (d), when the Parties in their submission did
not request such a finding with regard to that Article, which they did not
do in this case. The order in which the Court takes up consideration of
the Articles — whether it looks at Article X, paragraph 1, or Article XX,
paragraph 1 (d), first — is irrelevant to the above result as far as the non
ultra petita rule is concerned.

7. This conclusion finds support in the following explanation provided
by the Court in the Arrest Warrant case, decided in 2002, which referred
to:

“the well-established principle that ‘it is the duty of the Court not
only to reply to the questions as stated in the final submissions of the
parties, but also to abstain from deciding points not included in

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those submissions’ (Asylum, Judgment, I C.J. Reports 1950, p. 402).
While the Court is thus not entitled to decide upon questions not
asked of it, the non ultra petita rule nonetheless cannot preclude the
Court from addressing certain legal points in its reasoning. Thus in
the present case the Court may not rule, in the operative part of its
Judgment, on the question whether the disputed arrest warrant,
issued by the Belgian investigating judge in exercise of his purported
universal jurisdiction, complied in that regard with the rules and
principles of international law governing the jurisdiction of national
courts. This does not mean, however, that the Court may not deal
with certain aspects of that question in the reasoning of its Judg-
ment, should it deem this necessary or desirable.” (Z C.J. Reports
2002, pp. 18-19, para. 43; emphasis added.)

As this language indicates, by not abstaining “from deciding points not
included in [the] submissions”, the Court in the instant case violated
the non ultra petita rule and, hence, was not entitled to make a finding
relating to Article XX, paragraph | (d), of the Treaty.

8. The non ultra petita rule has a direct bearing on the scope of the
Court’s jurisdiction. Since this Court’s jurisdiction in a particular case is
strictly limited to the consent given by the parties to a case, the function
of the non ultra petita rule is to ensure that the Court does not exceed the
jurisdictional confines spelled out by the parties in their final submissions.
That is what is meant by the Court’s statement in the Asylum case,
quoted above, that “it is the duty of the Court not only to reply to the
questions as stated in the final submissions of the parties, but also to
abstain from deciding points not included in those submissions”. Fitz-
maurice puts the matter in the following terms:

“The non ultra petita rule is not only an inevitable corollary —
indeed, virtually a part of the general principle of consent of the
parties as the basis of international jurisdiction — it is also a neces-
sary rule, for without it the consent principle itself could constantly
be circumvented.” !

The point Fitzmaurice makes about the risk resulting from the failure of
the Court to adhere to the non ultra petita rule is particularly relevant to
the Court’s approach in this case.

9. That is to say, notwithstanding the fact that the Parties in their final
submissions asked the Court to decide only whether or not the actions of

1 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice,
Vol. II, p. 529 (1986). See also, Shabtai Rosenne, The Law and Practice of the Interna-
tional Court of Justice, Vol. I, p. 173 (1997).

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the United States violated Article X, paragraph 1, of the Treaty, a ques-
tion it resolves in favour of the United States, the Court proceeds to con-
vert a provision of the Treaty — Article XX, paragraph 1 (d) — which
was clearly relevant only as a defence had there been a violation of
Article X, paragraph 1, into an opportunity to use Article XX, para-
graph 1 (d), in order to render a decision on the international law on the
use of force and thus to find the actions of the United States in breach of
that law. This judicial modus operandi amounts to clear violation of the
non ultra petita rule. In my opinion, the Court’s pronouncement on
the issue not raised in the submissions of the Parties is not a statement
entitled to be treated as an authoritative statement of the law appli-
cable to the actions of the United States.

10. It must be remembered, in this connection, that in the Court’s
practice the contents of the dispositif is that part of the judgment which
alone is binding on the parties by virtue of Article 59 of the Court’s
Statute. Everything else in the judgment is merely the reasoning that
may or may not support the finding made in the dispositif. Hence, when
the Court includes matters in the dispositif that it was not asked in the
submissions of the parties to adjudicate, it exceeds its jurisdiction.
This is what we have here as far as the Court’s ruling on Article XX,
paragraph 1 (d), is concerned.

II. LACK OF JURISDICTION

11. Closely related to the issue that has just been discussed is the fact
that this case was referred to the Court under Article XXI, paragraph 2,
of the 1955 Treaty. The Court has no other basis of jurisdiction in this
case. That point is not in dispute between the Parties. Article X XI, para-
graph 2, reads as follows:

“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.”

12. As we have seen, this dispute was referred to the Court by Iran
on the ground that the action of the United States in attacking certain
Iranian oil platforms violated Article X, paragraph 1, of the Treaty. The
United States, in defending itself against this charge, contended that it
had not violated the Article and that, even if it had, the measures could

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not be deemed to amount to a Treaty violation since they were not “pre-
cluded” under Article XX, paragraph 1 (d)?.

13. Article XX, paragraph 1 (d), is designed to come into play or
becomes relevant only in the event that the Court determines that a party
to the Treaty has violated another provision thereof, in which case it
might serve as a defence to or justification for the action that was found
to conflict with the Treaty. Apart from the fact that that reading of
Article XX, paragraph 1 (d), is obvious on its face, this Court has on
at least two prior occasions so interpreted it. Thus, as we have already
noted, in the case of Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), the Court described
a comparable provision of the United States-Nicaragua Treaty of 1956,
as containing “a power for each of the parties to derogate from the other
provisions of the Treaty” (Merits, Judgment, I.C.J. Reports 1986, p. 117,
para. 225). And in its Judgment on the Preliminary Objection in
the instant case (Z C.J. Reports 1996 (II), p. 811, para. 20), the Court
characterizes the provision as a “possible defence on the merits to be used
should the occasion arise”. That, of course, is the only possible interpre-
tation of the clause that can legitimately be made. It leads to the obvious
conclusion that the clause has no relevance other than to come into play
when another Article of the Treaty is found by the Court to have been
violated. In short, Article XX, paragraph 1 (d), has no independent
significance.

14. Hence, once the Court had found, as it has in this case, that
Article X, paragraph 1, of the 1955 Treaty had not been violated by the
United States, there no longer exists a dispute within the meaning of
Article XXI, paragraph 2, of the Treaty between the United States and
Iran. Consequently, the Court lacked jurisdiction to rule that the action

“cannot be justified as measures necessary to protect the essential
security interest of the United States under Article XX, para-
graph | (d), of the 1955 Treaty . . . as interpreted in the light of
international law on the use of force” (Judgment, para. 125 (1)).

2 That Article reads as follows:

“1. The present Treaty shall not preclude the application of measures:

nance or restoration of international peace and security, or necessary to protect
its essential security interests.”

Only the last phrase of subparagraph 1 (d) is relevant to this case, the first part not
having been invoked.

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The Court would only have had the requisite jurisdiction to make this
finding if, apart from the 1955 Treaty, it did have some other jurisdic-
tional basis. But this it clearly did not have.

15. In its Judgment, the Court does not deny the relevance to its juris-
diction of its pronouncements in the Nicaragua case and in the 1996 Judg-
ment on the Preliminary Objection in the instant case. As a matter of
fact, it sees no reason to depart from them (see paras. 33 and 34). In sup-
port of its conclusion that it has jurisdiction to make a finding regarding
the applicability and scope of Article XX, paragraph | (d), of the Treaty,
even after it has determined that there has been no violation of Article X,
paragraph 1, of the Treaty, the Court advances a number of arguments.
First, it bases itself on the contention of the United States that, if
the Court were to find that the United States had a valid defence under
Article XX, paragraph 1 (d), “it must hold that no breach of Article X,
paragraph 1, of the Treaty has been established” (para. 34). This
argument prompts the Court to assert, in support of its jurisdiction, that
in order to uphold the claim of Iran, it must be satisfied that the
actions of the United States, which Iran contended violated Article X,
paragraph 1, did breach that Article and that these actions were not
justified under Article XX, paragraph 1 (d). Second, in considering the
order in which these questions are taken up, that is, whether or not
to follow the order adopted by the Court in the Nicaragua case, which
dealt with Article X, paragraph 1, first, or to start with Article XX,
paragraph 1 (d), the Court concludes that the approach adopted in
the Nicaragua case was not dictated by the “economy of the Treaty”,
and that it was therefore free to reverse that order. Third, the Court
points to the fact that the United States argued in support of its claim,
that its actions satisfied the provisions of Article XX, paragraph 1 (d),
and that that Article was a substantive provision which defines and
limits the obligations of the Parties, comparable to and on the same
level as Article X, paragraph 1.

16. None of these arguments convince. First, there is the Court’s reli-
ance on the contention of the United States that, if the Court were to find
that the measures taken by the United States satisfied the requirements of
Article XX, paragraph 1 (d), it would have to dismiss the claim with
regard to Article X, paragraph 1, whereas to rule in favour of Iran, it
would have to find a violation of Article X, paragraph 1, and no valid
defence under Article XX, paragraph 1 (d). That is all true, of course,
but it is irrelevant to the issue of jurisdiction in this case, precisely
because of the fact that Iran invoked the Court’s jurisdiction by charging
a violation of Article X, paragraph 1. That was the sole issue ultimately
to be determined unless and until the Court found that there had been a
violation of that Article.

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17. Second, by deciding to reverse the order and by taking up consid-
eration first of Article XX, paragraph 1 (d), the Court did not overcome
its lack of jurisdiction to make separate findings under that Article once
it had concluded, whether before or after dealing with one or the other of
these Articles, that Article X had not been violated. Here it should not be
forgotten that in its Judgment on the Preliminary Objection in the instant
case, the Court found “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, paragraph 1, of
that Treaty” U.C.J. Reports 1996 (II), p. 821, para. 55 (2)). We are here
therefore not dealing with a situation in which the Court, having acquired
jurisdiction at the time an action was instituted, cannot be divested of
that jurisdiction by later external events. (See, for example, the case con-
cerning Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom), I. C.J. Reports 1998, pp. 23-24, para. 38.)
In the Lockerbie case, the external event was a later United Nations
Security Council resolution. Similar external events came into play in the
two other cases which are frequently cited as authority to uphold the
proposition that jurisdiction once acquired is not divested by subsequent
events. (See Nottebohm (Liechtenstein v. Guatemala), Preliminary Objec-
tion, Judgment, I C.J. Reports 1953, p. 123; and Right of Passage over
Indian Territory (Portugal v. India), Preliminary Objections, Judgment,
LC.J. Reports 1957, p. 142.) The matter was put as follows by the Court
in the Nottebohm case, supra, where it said: “An extrinsic fact such as the
subsequent lapse of the Declaration, by reason of the expiry of the period
or by denunciation, cannot deprive the Court of the jurisdiction already
established.” But what we have in the present case is not an extrinsic fact
or event but an event or fact intrinsic to the Judgment itself: the Court,
by its own ruling under Article X, paragraph 1, of the 1955 Treaty has
divested or deprived itself of jurisdiction to make independent findings
with regard to Article XX, paragraph 1 (d).

18. Finally, the Court’s reliance on the United States argument that
Article XX, paragraph 1 (d), was a substantive provision and that its
action satisfied the provisions of the Article is misplaced. The United
States did not by that contention confer jurisdiction on the Court to
make a separate finding as to whether the measures of the United States
satisfied the requirements of Article XX, paragraph 1 (d), once the Court
found that these measures did not violate Article X, paragraph 1, of the
Treaty. In other words, the unstated implication in the Court’s argument
that the United States by that proposition submitted itself to the Court’s
jurisdiction is, in my view, simply untenable. This is certainly not a case
of an implicit forum prorogatum, but a litigation argument in defence,
advanced by the United States solely in case the Court were to find a vio-
lation of Article X, paragraph 1. (See Anglo-Iranian Oil Co. (United

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Kingdom v. Iran), Preliminary Objection, I.C.J. Reports 1952,
pp. 93-114.)

19. To put it bluntly, here the Court takes a giant intellectual leap
lacking a valid judicial and jurisdictional basis that propels it improperly
from an analysis of a Treaty provision — Article XX, paragraph 1 (d) —
to a formal holding in the operative part of the Judgment that the Article
provides no justification for the action of the United States, which action
the Court declares in the same operative part not to constitute a violation
of the very Article of the Treaty — Article X, paragraph 1 — that was
the sole basis of Iran’s claim in this case. In this creative fashion the
Court stigmatizes the actions of the United States as a breach of inter-
national law on the use of force without having the requisite jurisdiction
to make such a ruling.

III. ERRONEOUS RELIANCE ON INTERNATIONAL LAW
ON THE USE OF FORCE

20. Even if one were to accept the Court’s view that it had jurisdiction
to make a specific ruling on Article XX, paragraph 1 (d), it would still
have to be emphasized that its interpretation of that provision in the light
of international law on the use of force exceeded its jurisdiction. In para-
graph 41 of the Judgment, the Court concludes that

“Tit] cannot accept that Article XX, paragraph 1 (d), of the
1955 Treaty was intended to operate wholly independently of the
relevant rules of international law on the use of force, so as to be
capable of being successfully invoked, even in the limited context
of a claim for breach of the Treaty, in relation to an unlawful
use of force”.

21. The Court’s assertion that Article XX, paragraph 1 (d), must be
interpreted by reference to international law on the use of force, leads it
to conclude that, if it were to find that the action of the United States
violated international law on the use of force, it would have to rule that
such use of force cannot be justified under Article XX, paragraph 1 (d),
of the 1955 Treaty. In reaching this conclusion, the Court relies prin-
cipally on Article 31, paragraph 3 (c), of the Vienna Convention on
the Law of Treaties and on Article I of the 1955 Treaty. Article 31,
paragraph 3 (c), of the Convention provides that the interpretation of
treaties must take into account “any relevant rules of international law
applicable in the relations between the parties”.

22. The problem with the Court’s reliance on this provision of the
Vienna Convention is that, while the rule is sound and undisputed in

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principle as far as treaty interpretation is concerned, it cannot have the
effect of allowing the Court to take account, as it does here, of those
“relevant rules of international law applicable between the parties”, which
the parties to the dispute have not submitted to the Court’s jurisdiction
under the dispute resolution clause of the 1955 Treaty. That is, the prin-
ciples of customary international law and whatever other treaties the
parties to a dispute before the Court may have concluded do not by vir-
tue of Article 31, paragraph 3 (c), become subject to the Court’s jurisdic-
tion. This is so whether or not they might be relevant in the abstract to
the interpretation of a treaty with regard to which the Court has jurisdic-
tion. Whether one likes it or not, that is the consequence of the fact that
the Court’s jurisdiction, in resolving disputes between the parties before
it, is limited to those rules of customary international law and to those
treaties with regard to which the parties have accepted the Court’s juris-
diction. If it were otherwise, a State that has submitted itself to the
Court’s jurisdiction for the interpretation of one treaty would suddenly
find that it has opened itself up to judicial scrutiny with regard to other
more or less relevant treaties between the parties to the dispute that are
not covered by the dispute resolution clause of the treaty which conferred
jurisdiction on the Court in the first place. This would be the natural con-
sequence of the Court’s reliance in this case on Article 31, paragraph 3 (c),
in order to interpret Article XX, paragraph 1 (d). Such a result would
conflict with the consensual basis of the Court’s jurisdiction and would
jeopardize the willingness of States to accept the Court’s jurisdiction for
the adjudication of disputes relating to the interpretation or application
of specific rules of international law.

23. It should be emphasized, in this connection, that even if the other-
wise “relevant rules of international law” happened to be proclaimed in
the Charter of the United Nations, for example, the Court would still
lack the power to rely on such rules, unless the parties before it had
accepted its jurisdiction to adjudicate disputes relating to the interpreta-
tion or application of these Charter provisions. Thus, in order for the
Court to conclude that the use of force, sought by one of the parties to a
bilateral treaty to be excused in reliance on it, could not have been con-
templated by the parties to that treaty because of its incompatibility with
a provision of the United Nations Charter, the Court would first have to
make a preliminary determination that the challenged use of force was in
breach of the Charter provision. But that it would be entitled to do only
if the parties had agreed to confer jurisdiction on the Court to interpret
and apply the Charter in a dispute between them. It would be irrelevant,
in that connection, whether the Charter provision in question might also
be deemed to be a jus cogens rule.

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24. In the instant case, the Court lacks the requisite jurisdiction to
make such determination, whether or not in reliance on the United
Nations Charter or customary international law. It follows that the
Court errs when it asserts that it may, on the basis of the general prin-
ciple of treaty interpretation codified in Article 31, paragraph 3 (c), of
the Vienna Convention, interpret Article XX, paragraph 1 (d), of
the 1955 Treaty in light of international law on the use of force or any
other international law rules with regard to which the United States
has not accepted the Court’s jurisdiction.

25. The Court, as noted above, also relies on Article I of the
1955 Treaty, and declares that

“[i]t is hardly consistent with Article I to interpret Article XX, para-
graph 1 (d), to the effect that the ‘measures’ there contemplated
could include even an unlawful use of force by one party against the
other” (para. 41).

Article I provides only that “There shall be firm and enduring peace and
sincere friendship between the United States of America and Iran.” In its
1996 Judgment on the Preliminary Objection in the instant case, the Court
had found that the Article’s sole function “is such as to throw light on the
interpretation of the other Treaty provisions” (Z. C.J. Reports 1996 (IT),
p. 815, para. 31). It is difficult to see what light Article I can throw on the
interpretation of Article XX, paragraph 1 (d). In principle, any use of
force, whether lawful or not, would on its face appear to be inconsistent
with the proclaimed professions of enduring peace and friendship in
Article I. The same would be true of many other measures not involv-
ing the use of force. They would nevertheless not be precluded under
Article XX, paragraph 1 (d), if they were necessary to protect a State’s
“essential security interests”. That, of course, is the critical question
which needs to be answered. But it may not be answered by the Court’s
ruling that the action is “unlawful” in light of international law on the
use of force, when its jurisdiction in this case does not extend to that
law.

26. To demonstrate how far afield the Court strays in this case from the
jurisdiction conferred on it by Article XXI, paragraph 2, of the 1955
Treaty, one need only to read what the Court has to say in paragraph 39 of
the Judgment. Here the Court notes first that the United States argued that

“the Court need not address the question of self-defence . . . [T]he
scope of the exemption provided by Article XX, paragraph 1 (d), is
not limited to those actions that would also meet the standards for
self-defence under customary international law and the United
Nations Charter.”

The Court answers this argument in paragraph 39 by emphasizing that
the United States

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“does not contend that the Treaty exempts it, as between the parties,
from the obligations of international law on the use of force,
but simply that where a party justifies certain action on the basis of
Article XX, paragraph 1 (d), that action has to be tested solely
against the criteria of that Article, and the jurisdiction conferred
on the Court by Article XXI, paragraph 2, of the Treaty goes no
further than that”.

27. Of course, the United States does not advance the contention the
Court attributes to it. For the United States the question before the
Court is not whether the Treaty exempts the Parties from the obligations
of the United Nations Charter or international law on the use of force,
but whether the Court has jurisdiction in this case to address the scope
and nature of these obligations, either in the abstract or in relation to the
1955 Treaty. And the answer is that it does not, for the United States did
not in Article XXI, paragraph 2, of the Treaty confer jurisdiction on the
Court to adjudicate the question whether its actions conformed or not to
its obligations under the United Nations Charter or international law.
Consequently, it is improper for the Court, given the context of the argu-
ment of the United States, to assume that the United States agreed with
the Court’s view regarding the interpretation of Article XX, para-
graph 1 (d), which it clearly did not.

28. The above-mentioned substantive rules of international law cannot
be brought into this litigation through the back door by invoking
Article 31, paragraph 3 (c), of the Vienna Convention on the Law of
Treaties in the absence of specific jurisdiction conferred by the Parties on
the Court to rule on them. It follows that the Court’s conclusion, expressed
in paragraph 40, that “[i]n the view of the Court, the matter is one of
interpretation of the Treaty, and in particular of Article XX, para-
graph 1 (d)”, is untenable, to say the least. It amounts to an unwar-
ranted distortion of the meaning of the jurisdiction conferred on the
Court under Article XXI, paragraph 2, of the Treaty, for it fails to
seriously address the jurisdictional restraints on the Court’s freedom
of treaty interpretation, given the consensual nature of the Court’s juris-
diction.

29. In paragraph 42 of its Judgment, the Court professes to be

“satisfied that its jurisdiction under Article XXI, paragraph 2, of the
1955 Treaty to decide any question of interpretation or application
of (inter alia) Article XX, paragraph 1 (d), of that Treaty extends,
where appropriate, to the determination whether action alleged to be
justified under that paragraph was or was not an unlawful use of
force, by reference to international law applicable to this question,
that is to say, the provisions of the Charter of the United Nations
and customary international law”.

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Aware of the jurisdictional problems implicit in this conclusion, the
Court hastens to add that “its jurisdiction remains limited to that con-
ferred on it by Article XXI, paragraph 2, of the 1955 Treaty”. But these
words cannot gloss over the reality of what the Court is doing in this
case: on the basis of jurisdiction conferred on it in Article XXI, para-
graph 2, to interpret and apply the 1955 Treaty, the Court proceeds to
apply international law on the use of force simply because that law may
also be in dispute between the parties before it and bears some factual
relationship to the dispute of which the Court is seised. That it may not
do.

30. That the Court is doing precisely what it may not do becomes even
more evident when, in further seeking to justify its decision to interpret
Article XX, paragraph 1 (d), by reference to international law on the use
of force, it notes that “the original dispute between the Parties related to
the legality of the actions of the United States, in the light of interna-
tional law on the use of force” (para. 37). To this end, the Court empha-
sizes that

“At the time of those actions, neither Party made any mention of
the 1955 Treaty. The contention of the United States at the time was
that its attacks on the oil platforms were justified as acts of self-
defence, in response to what it regarded as armed attacks by Iran,
and on that basis it gave notice of its action to the Security Council
under Article 51 of the United Nations Charter. Before the Court, it
has continued to maintain that it was justified in acting as it did in
exercise of the right of self-defence; it contends that, even if the
Court were to find that its actions do not fall within the scope of
Article XX, paragraph 1 (d), those actions were not wrongful since
they were necessary and appropriate actions in self-defence.”
(Para. 37.)

It should require no argument that a State, which gives notice to the
Security Council under Article 51, has no reason there to rely on or to
invoke also the provisions of a bilateral commercial treaty, and will quite
naturally attempt to justify its conduct by reference to the provisions of
that Article. Moreover, such a State is certainly free in the Security
Council or in some other forum to advance legal arguments or defences
different from those it makes in a specific case in this Court under a dis-
pute resolution clause of a bilateral treaty. This does not mean, however,
that all other defensive arguments it has asserted in other forums may
therefore now be scrutinized by the Court in this case and serve to justify
its assertion of jurisdiction with regard to them.

31. As a matter of fact, the Court’s extensive quotations from the
arguments advanced by the United States in the United Nations Security

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Council with regard to the armed conflict in the Persian Gulf (see, for
example, paragraphs 48 and 67) prove, if proof were necessary, that the
Court in this case is acting as if it had jurisdiction to judge the action of
the United States in attacking the platforms by reference to specific pro-
visions of the Charter of the United Nations or international law. It is
much too easy and too transparent an attempt for the Court to gloss over
this fact by claiming that

“In the present case, the question whether the measures taken
were ‘necessary’ overlaps with the question of their validity as acts of
self-defence. As the Court observed in its decision of 1986 the cri-
teria of necessity and proportionality must be observed if a measure
is to be qualified as self-defence (see C.J. Reports 1986, p. 103,
para. 194, and paragraph 74 below).” (Para. 43.)

32. It is worth noting that the above quote from the Nicaragua case
comes from that part of the Nicaragua Judgment in which the Court was
exercising its jurisdiction under customary international law rather than
the United States-Nicaragua Treaty of 1956. The Court’s failure to apply
the language of Article XX, paragraph 1 (d), in its analysis of the evi-
dence relating to the challenged United States measures and its focus,
instead, on international law on the use of force has improperly trans-
formed the case into a dispute relating to the use of force under interna-
tional law rather than one calling for the interpretation and application
of a bilateral treaty with regard to which it alone had jurisdiction.

IV. DEFECTIVE FACT-FINDING PROCESS

33. Even assuming that the Court were correct in interpreting
Article XX, paragraph 1 (d), in light of international law on the use of
force, it is telling that the Court does not really analyse the evidence
presented by the United States by reference first to the specific language
and purpose of the Article. That, after all, would be the appropriate
way to proceed before enquiring whether the measures were compatible
with international law on the use of force, if only because such an
enquiry might throw some light on the factual considerations the parties
to the 1955 Treaty might have thought relevant to the interpretation
and application of Article XX, paragraph 1 (d). Instead, the Court con-
cludes that

“its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty
to decide any question of interpretation or application of (inter
alia) Article XX, paragraph 1 (d), of that Treaty extends, where
appropriate, to the determination whether action alleged to be jus-

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tified under that paragraph was or was not an unlawful use of force,
by reference to international law applicable to this question, that is
to say, the provisions of the Charter of the United Nations and
customary international law” (para. 42).

34. This said, the Court proceeds immediately to examine the facts rele-
vant to the application of that Article by reference to “the principle of
the prohibition in international law of the use of force, and the qualifica-
tion to it constituted by the right of self-defence” (para. 43). Noting that
Article XX, paragraph 1 (d), permits a country to take certain measures,
which it deems “necessary” for the protection of its essential security
interests, the Court quotes from the holding in the Nicaragua case, that it
was not enough for these measures to “tend to protect the essential secu-
rity interests of the party taking them”, but that they had to “be ‘neces-
sary’ for that purpose”. Moreover, whether “a given measure is ‘neces-
sary’ is not purely a question for the subjective judgment of the party but
may be assessed by the Court”. Finally, still in the same paragraph, the
Court declares that

“In the present case, the question whether the measures taken
were ‘necessary’ overlaps with the question of their validity as acts of
self-defence. As the Court observed in its decision of 1986 the cri-
teria of necessity and proportionality must be observed if a measure
is to be qualified as self-defence (see C.J. Reports 1986, p. 103,
para. 194, and paragraph 74 below).” (Para. 43.)

35. The Court’s language, quoted above, creates the impression that
the Court in the Nicaragua case had analysed the comparable Article in
the United States-Nicaragua Treaty of 1956 as the Court now analyses
Article XX, paragraph 1 (d). That is not true. In the Nicaragua case, it
will be recalled, the Court had two bases of jurisdiction: the 1956 Treaty,
which contained a dispute resolution clause comparable to Article XXI,
paragraph 2, of the 1955 Treaty, and the optional jurisdiction clause set
out in Article 36, paragraph 2, of the Statute of the Court. In passing on
the legality of the measures taken by the United States against Nicara-
gua, the Court there was very careful to separate its examination of the
legality of these measures under international law, with regard to which it
has jurisdiction under Article 36, paragraph 2, of the Statute, from the
question whether these measures were justified under the 1956 Treaty.
Its analysis of the latter issue focused on the specific language of the
applicable Treaty provision, the one comparable to Article XX, para-
graph 1 (d), of the 1955 Treaty. (Compare Z C.J. Reports 1986, p. 97,
para. 183, with ibid., p. 140, paras. 280-282.)

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36. It is therefore worth noting that the language from the Nicaragua
case concerning self-defence, which the Court in the instant case ties to its
analysis of Article XX, paragraph 1 (d), is taken not from the Nicaragua
Court’s interpretation of the here relevant provision of the 1956 United
States-Nicaragua Treaty, but from its examination of the legality of the
measures of the United States under customary international law. With-
out explaining that specific context of the quotation from the Nicaragua
case, the Court concludes that “[i]n the present case, the question whether
the measures taken were ‘necessary’ overlaps with the question of their
validity as acts of self-defence” (para. 43). Logically, given the context of
the authority on which the Court relies, this conclusion would be true
only if the Court in this case had jurisdiction under Article 36, para-
graph 2, of its Statute. That it does not have.

37. The Court’s approach distorts the here relevant fact-finding
process or focus. The language of Article XX, paragraph 1 (d) —
“measures . . . necessary to protect essential security interests” —
suggests that the parties to the Treaty, without leaving it exclusively to
their subjective determination as to whether or not the measures were
necessary to protect their respective essential security interests, must
nevertheless not be understood to have excluded the right of each party
to make that assessment by reference to a standard of reasonableness.
That much is implicit in the requirement the Article postulates, if only
because the concept of “essential security interests” must of necessity
bear some relation to a State’s own reasonable assessment of its essential
security interests, even if ultimately it is for the Court to pass on that
assessment. This is apparent also from the Nicaragua Court’s holding.
Here the Court noted that, whether “a [given] measure is necessary . . .
is not... purely a question for the subjective judgment of the party [but
may be assessed by the Court]” (.C.J. Reports 1986, p. 141, para. 282;
emphasis added). The Nicaragua Court’s suggestion that it may not be
“purely” a matter of the subjective judgment of a party, implies that
while a Government’s determination is ultimately subject to review by
the Court, it may not substitute its judgment completely for that of the
Government which, in assessing whether the disputed measures were
necessary, must be given the opportunity to demonstrate that its assess-
ment of the perceived threat to its essential security interests was reason-
able under the circumstances.

38. Thus, even if one were to adopt the Court’s view that “in the
present case, the question whether the measures taken were ‘necessary’
overlaps with the question of their validity as acts of self-defence”, it
would be improper to analyse the evidence adduced by the United States

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in support of its measures exclusively in light of their validity as acts of
self-defence, without recognizing that in Article XX, paragraph 1 (d),
the parties opted, not for a rigid or absolute assessment of the evidence,
but for an examination of the evidence that asked whether, on the facts
before it, a party had convincing reasons for believing that the measures
were necessary to protect its essential security interests. This analysis
would permit the Court to view the evidence before it in this case in a
much more nuanced way and to assess the actions of the United States
with the flexibility Article XX, paragraph 1 (d), appears to demand. By
not adopting this approach in the instant case, the Court, for all practical
purposes, reads Article XX, paragraph | (d), out of the Treaty and then
proceeds to assess the evidence as if Article XX, paragraph 1 (d), did not
exist.

39. That this is in fact what the Court does, is readily apparent from
the evidentiary approach it adopts. Thus, in paragraph 57 of the Judg-
ment, the Court concludes that:

“For present purposes, the Court has simply to determine whether
the United States has demonstrated that it was the victim of an
‘armed attack’ by Iran such as to justify it using armed force in self-
defence; and the burden of proof of the facts showing the existence
of such attack rests on the United States. The Court does not have
to attribute responsibility for firing the missile that struck the Sea
Isle City, on the basis of a balance of evidence, either to Iran or to
Iraq; if at the end of the day the evidence available is insufficient
to establish that the missile was fired by Iran, then the necessary
burden of proof has not been discharged by the United States.”

40. This test takes no account of the facts as they might reasonably
have been assessed by the United States before it decided to act, given the
context of the Iraq-Iran armed conflict and Iran’s consistent denial that it
was not responsible for any military actions against neutral shipping.
Article XX, paragraph 1 (d), as interpreted in the Nicaragua case, would
have required such a contextual analysis of the evidence.

41. One might ask, moreover, where the test of “insufficient” evidence
comes from (see para. 39, supra) and by reference to what standards the
Court applies it? What is meant by “insufficient” evidence? Does the evi-
dence have to be “convincing”, “preponderant”, “overwhelming” or
“beyond a reasonable doubt” to be sufficient? The Court never spells out
what the here relevant standard of proof is. Moreover, it may well be that
each of the pieces of proof the United States adduces, if analysed sepa-
rately, as the Court does (see, for example, Judgment, paras. 58 et seq.),

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may not be sufficient to prove that the missile was fired by Iran. Taken
together, however, they may establish that it was not unreasonable for
the United States to assume that it was fired by Iran, particularly since
Iran, in the face of overwhelming evidence that it was responsible for at
least some attacks on neutral shipping, denied all such responsibility. A
proper application of Article XX, paragraph 1 (d), of the Treaty would
have required the Court to take these considerations into account.

42. In paragraph 60 of the Judgment, the Court states

“In connection with its contention that the Sea Isle City was the
victim of an attack by Iran, the United States has referred to an
announcement by President Ali Khameini of Iran some three months
earlier, indicating that Iran would attack the United States if it did
not ‘leave the region’. This however is evidently not sufficient to jus-
tify the conclusion that any subsequent attack on the United States
in the Persian Gulf was indeed the work of Iran.”

It may not be sufficient to justify the conclusion regarding specific sub-
sequent attacks, but it certainly has a bearing on determining I[ran’s
intentions or policies about attacking United States interests in the Gulf.
Such intentions or policies, one would assume, would be highly relevant
elements in assessing the facts disputed by the Parties as well as the
reasonableness of the assumption made by the United States about
threats to its essential security interests. This the Court fails to do.

43. In the same paragraph 60, the Court also comments on the evi-
dence proffered by the United States that

“Iran was blamed for the attack [on the Sea Isle City] by ‘Lloyd’s
Maritime Information Service, the General Council of British
Shipping, Jane’s Intelligence Review and other authoritative public
sources’. These ‘public sources’ are by definition secondary evidence;
and the Court has no indication of what was the original source, or
sources, or evidence on which the public sources relied. In this
respect the Court would recall the caveat it included in its Judgment
in the case concerning Military and Paramilitary Activities in and
against Nicaragua, that ‘Widespread reports of a fact may prove on
closer examination to derive from a single source, and such reports,
however numerous, will in such case have no greater value as evi-
dence than the original source. (ZCJ. Reports 1986, p. 41,
para. 63.)”

All that may be true, but the Court pays no attention to the evidence
indicating that these “public sources” were deemed by mariners in the

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Gulf to be highly knowledgable and reputable sources of information,
and that they were treated by them as reliable. By simply dismissing this
evidence as insufficient, the Court glosses over important elements of
proof bearing not only on the assumptions that could reasonably be
made about Iran’s role in the attacks on vessels in the Gulf, but also the
veracity of these reports. Besides, merely because these sources were
“secondary”, does not mean that they are insufficient to shift the bur-
den of going forward with the evidence to Iran and thus requiring it to
prove their unreliability, an issue the Court simply fails to address.

44. Another example of a questionable fact-finding process, given the
context of this case, is found in paragraph 71 of the Judgment. Here
the United States supports its contention that the mine which the
USS Samuel B. Roberts struck was laid by Iran, with evidence of “the
discovery of moored mines in the same area, bearing serial numbers
matching the other Iranian mines, particularly those found aboard the
[Iranian] vessel Jran Ajr”, which had been observed laying mines and
subsequently been boarded by the United States. The Court assesses the
probative value of this evidence as follows: “[t]his evidence is highly
suggestive, but not conclusive”. Apart from the fact that the standard
of proof has suddenly changed, without an explanation, from “sufficient”
to “conclusive”, one wonders why evidence that is “highly suggestive”
appears for the Court not to be sufficient even in the context of this par-
ticular case.

45. More important, because of its focus on the right of self-defence
under international law rather than on Article XX, paragraph 1 (d), the
Court erroneously invokes and relies on the conceptual differences under
international law between individual and collective self-defence. Thus, for
example, the Court notes that

“[tlo justify its choice of the platforms as targets, the United States
asserted that they had ‘engaged in a variety of actions directed
against United States flag and other non-belligerent vessels and air-
craft’ ” (para. 50).

The Court rejects this defence in the following terms:

“Despite having thus referred to attacks on vessels and aircraft of
other nationalities, the United States has not claimed to have been
exercising collective self-defence on behalf of the neutral States
engaged in shipping in the Persian Gulf; this would have required
the existence of a request made to the United States ‘by the State

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which regards itself as the victim of an armed attack’ (Z C.J. Reports
1986, p. 105, para. 199). Therefore, in order to establish that it was
legally justified in attacking the Iranian platforms in exercise of the
right of individual self-defence, the United States has to show that
attacks had been made upon it . . .” (Para. 51.)

46. By failing to focus on Article XX, paragraph 1 (d), and by ana-
lysing the evidence exclusively in terms of the right of self-defence under
international law, the Court draws conclusions from the dichotomy
between individual and collective self-defence that have no place in this
case. This type of analysis is erroneous when applied to the interpretation
of Article XX, paragraph 1 (d), of the 1955 Treaty, since it permits
“measures . .. necessary to protect [a State’s] essential security interests”
without specifying that these measures can only be taken against a State
that intended to damage the victim’s essential security interests. Hence,
even an indiscriminate attack not specifically aimed at the party to the
Treaty, would provide a valid defence under Article XX, paragraph 1 (d),
if it threatened those interests. By failing to differentiate between the
requirements of that Article and those of international law on the use
of force, the Court erroneously fails to examine important evidence
presented by the United States in justification of the measures it took
against Iran.

x * x

47. For all the foregoing reasons, I conclude that the Court erred in
its ruling with regard to Article XX, paragraph 1 (d).

(Signed) Thomas BUERGENTHAL.

132


ESSAIS NUCLÉAIRES (ORDONNANCE 12 VII 73) 322

M. Gros, juge, fait la déclaration suivante:

J'ai voté contre le renvoi de l’examen du document déposé le 16 mai
1973; la question pouvait et devait être tranchée immédiatement, et en
dehors du problème de la compétence de la Cour dans l’affaire visée au
dispositif de la présente ordonnance, en constatant que ledit document ne
répond pas aux dispositions de l’article 62 du Statut de la Cour sur l’in-
tervention.

M. PETREN, juge, fait la déclaration suivante:

Etant d’avis que c’est au stade actuel de la procédure que la Cour
aurait dû se prononcer sur la requête du Gouvernement de Fidji, j’ai voté
contre le renvoi de son examen à une phase ultérieure de l’affaire.

M. ONYEAMA, juge, fait la déclaration suivante:

J'ai voté contre l’ordonnance parce que la requête à fin d'intervention
aurait dû, selon moi, être examinée au fond maintenant et non ultérieure-
ment; en effet, indépendamment de ce que la requête même postule, il
aurait fallu trancher immédiatement Ja question de savoir si, en ’absence
d’un lien juridictionnel avec la France, Fidji peut intervenir dans une
affaire où la France est en cause.

M. IGNACIO-PINTO, juge, fait la déclaration suivante:

Je ne partage pas l’opinion de la majorité de la Cour selon laquelle
l'examen de la requête à fin d’intervention de Fidji en l’instance Australie
c. France d’une part et Nouvelle-Zélande c. France d’autre part au sujet
des essais nucléaires devrait être renvoyé. Il n’y a aucun lien conven-
tionnel entre la France et ledit Etat susceptible d’habiliter ce dernier à
une telle intervention.

I] eût fallu en conséquence examiner dès à présent si cette requête est
fondée et le renvoi à une phase ultérieure de la procédure n’est nullement
justifié à mon avis; en conséquence je vote contre.

(Paraphé) M.L.
(Paraphé) S.A.