822

SEPARATE OPINION OF JUDGE SHAHABUDDEEN

PRELIMINARY

The question before the Court is whether the Applicant has a right to
have its claim adjudicated. The Respondent says there is not such a right.
The objection presents the Court with the delicate problem of ensuring,
on the one hand, that the Respondent is not given cause to complain that
it has been brought before the Court against its will, and, on the other
hand, that the Applicant is not left to feel that it has been needlessly
driven from the judgment seat. It is necessary to navigate carefully
between these perils.

As the Court has found, there is a dispute between the Parties, which it
has not been possible to adjust by diplomacy, and which the Parties have
not agreed to settle by any pacific means other than recourse to the
Court. To that extent, the corresponding conditions of the compromis-
sory clause are therefore satisfied. Nevertheless, the Parties differ on the
question whether there is a right of recourse to the Court, the particular
issue being

“whether the dispute between the two States with respect to the law-
fulness of the actions carried out by the United States against the
Iranian oil platforms is a dispute ‘as to the interpretation or appli-
cation’ of the Treaty of 1955” (Judgment, para. 16).

The Court has taken the position that:

“In order to answer that question, . . .[ift 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.” (Ibid)

Thus, in the view of the Court, the test of jurisdiction is whether the
alleged violations “do or do not fall within the provisions of the Treaty”.
Some seeming plasticity in that statement notwithstanding, the remainder
of the Judgment makes it clear that what the statement means is that the
Court is required to make a definitive interpretation of the Treaty at this
jurisdictional phase. In paragraph 52, for example, the Court holds that
Article I of the Treaty “by itself . . . is not capable of generating legal
rights and obligations” — thus definitively determining the main issue
dividing the Parties on that provision. The Applicant had contended for
a lower test, which, however worded, does not involve the making of a
definitive interpretation of the Treaty at this stage. Without addressing

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extensive arguments on the point, the Court has opted for the higher test.
If a lower test is used, the consequences are not wholly congruent with
those produced by the Court’s test. Which is the right test?

THE OBJECTION

Put briefly, the issue now before the Court arises this way: the Respon-
dent contends that the 1955 FCN Treaty between itself and the Applicant
is irrelevant to the matters alleged in the Applicant’s claim, and therefore
that the jurisdiction conferred by the compromissory clause of the Treaty
is not available.

To underpin the objection, the Respondent makes the opening submis-
sion that the Court has to be satisfied that the compromissory clause of
the Treaty establishes that the Respondent has consented to the jurisdic-
tion of the Court in respect of this particular case. That is correct; the
Applicant does not say otherwise. It may be added that the Court must
be clearly satisfied that it has jurisdiction. However, whether the Court
can be satisfied, and satisfied with the requisite clarity, that the Parties
have consented to jurisdiction in this particular case depends on what
exactly is the kind of dispute over which they have agreed that the Court
should have jurisdiction. What they have agreed to submit to the Court is
not a specific dispute which can be concretely identified, but a category of
disputes defined as “[a]ny dispute between the High Contracting Parties
as to the interpretation or application of the present Treaty. . .”!.
The amplitude of that language in a treaty is apparent; it embraces all
“difficulties which might be raised by this treaty” /translation by the
Registry ]?.

In this respect, it has to be borne in mind that, unlike the case with
some treaties, the compromissory clause of the 1955 FCN Treaty is not
limited to disputes as to the interpretation or application of some only of
the provisions of the Treaty: it extends to “any dispute . . . as to the inter-
pretation or application of the present Treaty”, i.e., as to any part of the
Treaty. Thus, the jurisdiction conferred by the compromissory clause

1 In treaty practice, the phrase “interpretation or application” dates back to the 1880s.
See Factory at Chorzéw, P.C.I.J., Series C, No. 13 (I), “Réponse du Gouvernement alle-
mand à l’exception préliminaire du Gouvernement polonais”, pp. 174-176, and J. B.
Moore, History and Digest of the International Arbitrations to Which the United States
Has Been a Party, 1898, Vol. V, p. 5057.

2 A. Merignhac, Traité théorique et pratique de l'arbitrage international. Le rôle du
droit, 1895, p. 202, para. 198. And see Dionisio Anzilotti, Corso di diritto internazionale,
Vol. 3, 1915, p. 56; Factory at Chorzéw, Jurisdiction, P.CIJ., Series A, No. 9, p. 24; and
LCJ. Pleadings, United States Diplomatic and Consular Staff in Tehran, p. 152 and
p. 153, footnote 14.

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824 OIL PLATFORMS (SEP. OP, SHAHABUDDEEN)

could apply in relation to a provision of the Treaty even if the provision
creates no legal obligation; for, even if, on a true construction, it creates
no legal obligation, there could be a dispute between the Parties as to
whether it does — a point not considered by the Court in its treatment of
the normative value and jurisdictional status of Article I of the Treaty.
More generally, the jurisdiction conferred by the compromissory clause
could be exercised even though it turns out that the Treaty does not
apply to the alleged acts or circumstances; for there can be a dispute as to
the interpretation or application of the Treaty in relation to a matter to
which it is eventually held that the Treaty does not apply. But reason says
that there must equally be a limit beyond which it is not possible for a
dispute as to the interpretation or application of a treaty to arise in rela-
tion to matters to which the Treaty does not apply; beyond that limit, the
compromissory clause no longer operates to confer jurisdiction. Where is
that limit to be drawn?

THE JURISDICTIONAL TEST

The location of the limit beyond which it is not possible for a dispute
to arise as to the interpretation or application of a treaty within the
meaning of its compromissory clause depends on the relationship between
the claim and the treaty on which the claim is sought to be based. The
test as to what should be the requisite relationship has been variously
worded. It is possible to argue, both interestingly and sagely, about
which formulation is best. Possibly, the differences in wording reflect the
specific characteristics of the particular cases. For present purposes, it is
sufficient to take the broad position that the various formulations may be
reasonably understood as embodying what, in an omnibus way, may be
called a form of relativity test. This opinion will consequently abstain
from microscopic examination of particular phrases used; it will call on
them interchangeably. They occur in the following dicta:

It “is not necessary for the Court to find . . . that the [claimant]
Government’s interpretation of the Treaty is the correct one”, nor for
that “Government to show. . . that an alleged treaty violation has an
unassailable legal basis” (Ambatielos, Merits, Judgment, I.C.J. Reports
1953, p. 18). But it “is not enough for the claimant Government to estab-
lish a remote connection between the facts of the claim and the Treaty”
relied on {ibid.). The proper test is met where “the arguments advanced
by the [claimant] Government in respect of the treaty provisions on
which the . . . claim is said to be based, are of a sufficiently plausible
character to warrant a conclusion that the claim is based on the Treaty”

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825 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

(I C.J. Reports 1953, p. 18) or where “the interpretation given by the
[claimant] Government to any of the provisions relied upon appears to
be one of the possible interpretations that may be placed upon it, though
not necessarily the correct one .. .” (ibid.) or, “if it is made to appear
that the [claimant] Government is relying upon an arguable construction
of the Treaty, that is to say, a construction which can be defended
whether or not it ultimately prevails . . .” (ibid. ) or, where “the com-
plaint . . . indicate[s] some genuine relationship between the complaint
and the provisions invoked . . .” (Judgments of the Administrative Tribu-
nal of the ILO upon Complaints Made against Unesco, Advisory Opinion,
I C.J. Reports 1956, p. 89); or where “the terms and the provisions
invoked appear to have a substantial and not merely an artificial connex-
ion with the” alleged act (ibid.) or, where the assertion that the instru-
ment relied on gave the right claimed has “some serious juridical basis”
(ibid., p. 90); or where “the grounds invoked by the [claimant] Govern-
ment are such as to justify the provisional conclusion that they may be of
relevance in [the] case . . .” ({nterhandel, Judgment, I. C.J. Reports 1959,
p. 24); or where the provision in question “may be of relevance for the
solution of the . . . dispute” (ibid.) or where there is “a reasonable con-
nection between the Treaty and the claims submitted to the Court” (Mili-
tary and Paramilitary Activities in and against Nicaragua, Jurisdiction
and Admissibility, Judgment, I C.J. Reports 1984, p. 427, para. 81).

*

Some of these formulations related to the functions of a body other
than the Court; others to the functions of the Court itself. Some were
made at the jurisdictional phase of a case before the Court; others at the
merits phase. A reasonable view, however, is that they may all be under-
stood as applicable to the functions of the Court itself in a situation in
which it is called upon to consider whether the alleged acts bear such a
relationship to the treaty relied on as to attract the jurisdiction provided
for under its compromissory clause.

In Ambatielos, it was at the merits stage of the case before it that the
Court spoke of the relevant jurisdictional criteria, and it spoke of them in
relation to the functions of an arbitral tribunal. It held that the United
Kingdom was under a treaty obligation to refer a dispute to arbitration.
The problem, presented late in the arguments, was how far could the
Court go in affirming such a duty without encroaching on the authority
of the arbitral body, in exercise of its compétence de la compétence, to
decide on its own jurisdiction. It is possible to see how the problem arose
(see ICT. Pleadings, Ambatielos, pp. 356ff., Henri Rolin, and p. 385,
Fitzmaurice). A distinction no doubt existed between the competence of
the Court to determine whether there was a duty to submit to arbitration
and the competence of the arbitral tribunal subsequently to determine
whether it had jurisdiction. Nevertheless, so far as the Court was con-

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cerned, it could scarcely hold that there was a duty to submit to arbitra-
tion without also at least presuming that the dispute would be within the
jurisdiction of the arbitral body. Not surprisingly, there is a strong view
that the Court in substance held that the dispute would be within the
jurisdiction of the arbitral body. It is difficult to see why, subject to sub-
sequent jurisprudential refinement, the substance of the Ambatielos test
should not apply wherever an issue arises as to whether a matter falls
within the jurisdiction of any deciding body, including the Court itself.
The identity of the particular deciding body is not material; what is
material is the juridical question involved. This is always the same what-
ever may be the deciding authority. It is not logical to suppose that the
Court would put forward one jurisdictional test in the case of other
tribunals and adopt a different one in the case of itself.

That the same test applies in relation to the Court is suggested by the
Interhandel and Military and Paramilitary Activities in and against Nica-
ragua cases, in which the particular point at issue concerned the jurisdic-
tion of the Court itself. In Interhandel, whether there was an obligation
to submit a matter to arbitration was the subject of “an alternative sub-
mission” by Switzerland. However, Switzerland’s “principal submission”
sought an exercise of the Court’s own jurisdiction for the purpose of
adjudging and declaring that the United States of America was under an
obligation to restore the seized assets of Interhandel (7. C.J. Reports 1959,
p. 19). In ruling on the respondent’s objection to the Court’s jurisdiction
on the ground that the seizure and retention of the assets were matters
within the domestic jurisdiction of the respondent, the Court said:

“In order to determine whether examination of the grounds...
invoked [by Switzerland] is excluded from the jurisdiction of the
Court for the reason alleged by the United States, the Court will
base itself on the course followed by the Permanent Court of Inter-
national Justice in its Advisory Opinion concerning Nationality
Decrees Issued in Tunis and Morocco (Series B, No. 4), when dealing
with a similar divergence of view. Accordingly, the Court does not,
at the present stage of the proceedings, intend to assess the validity
of the grounds invoked by the Swiss Government or to give an
opinion on their interpretation, since that would be to enter upon
the merits of the dispute. The Court will confine itself to considering
whether the grounds invoked by the Swiss Government are such as
to justify the provisional conclusion that they may be of relevance in

3 Sir Hersch Lauterpacht, The Development of International Law by the International
Court, 1958, p. 239.

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827 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

this case and, if so, whether questions relating to the validity and
interpretation of those grounds are questions of international law.”
CUnterhandel, Judgment, I.C.J. Reports 1959, p. 24.)

It is reasonably clear that in Interhandel the Court adopted a form of
relativity test in relation to its own jurisdiction. The Court did likewise in
Military and Paramilitary Activities in and against Nicaragua. It is not
satisfactory to say that the Court was merely recalling the respondent’s
argument when it said:

“In order to establish the Court’s jurisdiction over the present dis-
pute under the Treaty, Nicaragua must establish a reasonable con-
nection between the Treaty and the claims submitted to the Court.”
(Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissi-
bility, Judgment, I. C.J. Reports 1984, p. 427, para. 81.)

In so far as the Court was recalling the respondent’s submission, the
Court was also adopting it. It certainly did not reject the proposition; on
the contrary, its subsequent treatment of the matter accorded with the
proposition. It referred to or summarized five articles of the treaty in
question and then, without intervening remark, said:

“Taking into account these Articles of the Treaty . . ., there can be
no doubt that, in the circumstances in which Nicaragua brought its
Application to the Court, and on the basis of the facts there asserted,
there is a dispute between the Parties, inter alia, as to the ‘interpreta-
tion or application’ of the Treaty.” (Jbid., p. 428, para. 83.)

The Court did not make a definitive interpretation of the treaty texts; it
did not analyse them; it gave them limited consideration — almost
restricted to inspection — for the purpose of determining whether there
was “a reasonabie connection” between them and the claims submitted to
the Court. Interestingly, also, almost throughout its written and oral
presentation in the instant case the Respondent argued in favour of a
“reasonable connection” test, as it did in the Military and Paramilitary
Activities in and against Nicaragua case, and so to this extent accepted
that some form of relativity test was applicable.

A DEFINITIVE INTERPRETATION OF THE TREATY CANNOT BE MADE AT THE
PRELIMINARY STAGE

Developing the point last alluded to, one may recall that Military and
Paramilitary Activities in and against Nicaragua was not the only case in
which the Court refrained from making a definitive interpretation of the
relevant texts. Similar restraint was shown in Ambatielos. Likewise in

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828 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

Interhandel, as appears from the passage cited above. It will be remem-
bered that in the last-mentioned case the United States of America con-
tended that Article IV of the Washington Accord, which was relied on by
Switzerland, was “of no relevance whatever in the present dispute” — an
idea central to the objection in this case. The Parties were in disagreement
over certain terms of that Article. Referring to this, the Court said:

“The interpretation of these terms is a question of international
law which affects the merits of the dispute. At the present stage of
the proceedings, it is sufficient for the Court to note that Article IV
of the Washington Accord may be of relevance for the solution of
the present dispute and that its interpretation relates to international
law.” (.C.J. Reports 1959, p. 24.)

Thus, the instrument relied on may be judged relevant for the solution of
the dispute, with resulting jurisdiction, even though the interpretation of
its terms is regarded as a matter for the merits.

In the course of determining whether the alleged circumstances bear
the requisite relationship to the treaty relied on in order to attract the
jurisdiction provided for by the compromissory clause, the Court cannot
altogether avoid some interpretation of the treaty. But, if the foregoing
approach is correct, the issue before the Court at the preliminary stage,
and on which jurisdiction under the compromissory clause turns, is not
whether the treaty applies to the alleged circumstances, but whether the
applicant has an arguable contention to that effect. Thus, the Court can
only interpret the treaty at the jurisdictional stage in so far as it is
necessary to do so for the purpose of determining whether the applicant’s
interpretation of the treaty is an arguable one, and not for the purpose of
determining definitively whether the treaty applies to the alleged circum-
stances. The more limited function is undertaken by the Court in exercise
of its compétence de la compétence; the more definitive function is under-
taken in exercise of its substantive jurisdiction. In exercise of its com-
pétence de la compétence, the Court could well hold that the applicant
has an arguable contention that the treaty applies to the alleged circum-
stances even if, in exercise of the substantive jurisdiction which flows
from that holding, it eventually holds that the treaty does not. In effect,
the treaty may not apply to the alleged circumstances and yet the Court
may have substantive jurisdiction to determine precisely whether it does.

#

There is a different line of holdings. Cases have occurred in which,
when dealing with the question whether the dispute fell within the juris-
diction conferred on the Court by the compromissory clause of the

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829 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

treaty, the Court took a position which suggests that it was of the view
that it was required at the jurisdictional stage to determine definitively
whether the provisions relied on by the applicant applied, on their true
construction, to the alleged circumstances (see, for example, Mavromma-
tis Palestine Concessions, P.C.I.J., Series A, No. 2, p. 16, and Applica-
tion of the Convention on the Prevention and Punishment of the Crime of
Genocide, Judgment, I.C.J. Reports 1996, pp. 615-617, paras. 30-33).
That view, which the Court has adopted in this case, differs materially
from the more limited view that the duty of the Court at this stage is
merely to decide whether the construction of the treaty on which the
applicant relies for saying that the treaty applies to the alleged circum-
stances is an arguable one in the sense mentioned above.

Ba

Which of these two different strands of jurisprudence should the Court
now follow? The solution is to be found in returning to the terms of the
compromissory Clause. Under this, jurisdiction depends on whether there
is a dispute between the parties as to the interpretation or application of
the treaty. There could be a dispute as to whether there is a dispute as to
the interpretation or application of the treaty. To decide on the correct-
ness of the applicant’s interpretation is to decide the second dispute, not
the first; and that is to determine part of the substance of the claim
before the merits stage has been reached. The reason is that, as in munici-
pal law, proof of a claim before the Court involves proof of two things,
first, that the alleged obligation exists in law, and, second, that the obli-
gation was breached on the facts (see, in this respect, Ambatielos, Merits,
Judgment, 1 C.J. Reports 1953, p. 17). The second of these two points
would turn on the evidence. The first point would be determined by
making a definitive interpretation of the texts relied on (including
general international law) with a view to ascertaining whether they
placed the respondent under the asserted obligation. The making of that
interpretation is therefore a matter for the merits. The proposition may
be tested this way.

It is possible to conceive of a dispute in which, the facts being agreed,
the sole question is whether, on its true interpretation, the treaty relied on
applies to those facts. If, in the course of determining a preliminary
objection that the treaty is wholly irrelevant to the claim, the Court were
to decide the question of interpretation in favour of the applicant,
nothing would be left for determination at the merits stage; the Court
would be determining the merits at the preliminary stage, that is to say, at
a time when, according to Article 79, paragraph 3, of the Rules of Court,
the merits stood suspended. On the view presently offered, there would
be something left for determination at the merits stage, since all that the
Court would be now deciding is that the applicant can present an argu-

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830 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

able construction of the treaty to support its claim that the treaty applies
to the alleged facts. Whether the treaty, on its true construction, does
indeed apply would then be determined at the merits stage.

If it is thought that that example leads to an undesirable necessity to
continue the proceedings to the merits stage, the answer lies in the fact
that, as has been often observed, the Court lacks a filter mechanism
through which, on the model available in some municipal legal systems,
part of the merits could be argued and decided in advance of the normal
merits stage. In such systems it is possible to argue, ahead of the normal
merits phase, that, taking the facts alleged by the plaintiff at their highest,
they do not justify the claim for the reason that the asserted obligation
does not exist in law, or that, if it exists, it is not breached by the alleged
facts. The practice of thus “striking out” an application has not yet devel-
oped in proceedings before this Court. Except in the indirect sense in
which they are contemplated by Article 36, paragraph 6, of the Statute,
the latter lays down no procedure relating to preliminary objections. An
applicant is entitled under the Statute to a hearing at the normal merits
stage, both for the purpose of showing that, on the law, the alleged obli-
gation exists, and for the purpose of showing that, on the facts, the obli-
gation was breached by the respondent. Misunderstanding arises if this
difference between the Court’s system and municipal systems is not borne
in mind in fixing the limits of preliminary proceedings based on an objec-
tion which in effect asserts that there is no dispute within the meaning of
the compromissory clause sought to be invoked for the reason that the
treaty containing the clause is irrelevant to the applicant’s claim. The
determination of such an objection cannot extend to the question whether,
on a true construction of the treaty, the asserted obligation exists. This
would be a matter for the merits in the ordinary way; preliminary pro-
ceedings cannot change that.

There being no desire to extend this opinion unduly, it is simply sub-
mitted that the 1972 changes in the Rules of Court did not abrogate the
fundamental principle that a preliminary decision cannot decide, or even
prejudge, issues belonging to the merits. The idea that, in determining
preliminary objections, the Court’s enquiry could “touch” on the merits
went back to the 1920s. The 1972 amendments encouraged the Court to
proceed along earlier established lines and consequently to dispose of
preliminary objections even if the Court would have to “touch” on the
merits, but only within the limits of the equally long-settied principle that
the Court cannot determine or prejudge the merits at the preliminary
stage; the 1972 amendments did not authorize the Court to depart from
this principle. Therefore, ail that the Court can decide in preliminary pro-
ceedings of this kind is whether the applicant’s construction of the treaty
is or is not arguable.

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831 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

One accepts that, since jurisdiction depends on consent, the Court has
to decide definitively, and not provisionally, that the particular dispute is
“within the category of disputes for which the [Respondent] has accepted
the jurisdiction of the Court” (Mavrommatis Palestine Concessions, Judg-
ment No. 2, 1924, P.C.LJ., Series A, No. 2, p. 29; and see ibid., p. 16).
But a distinction has to be drawn between the making of a definitive deci-
sion as to whether the dispute falls within the stipulated category of dis-
putes and the criterion on which the decision is made. There is no reason
why a definitive decision of that kind can not be made on the basis of a
criterion based on a possibility — in this case, the possibility that the
applicant can present an arguable construction of the instrument to sup-
port its claim. Other areas of the law show that a court could well take
definitive decisions on the basis of its appreciation of a possibility.

The circumstance that the correct criterion to be employed was not
argued in the line of cases ending with the recent case concerning Appli-
cation of the Convention on the Prevention and Punishment of the Crime
of Genocide does not mean that those cases should be disregarded. But
that circumstance may be properly borne in mind in considering the
value of other and more fully reasoned cases which suggest that the task
of the Court at this stage is not to make a definitive interpretation of the
treaty, but only to determine whether the construction of the treaty on
which the applicant relies is an arguable one in the sense mentioned
above. It is respectfully submitted that this is the correct position, and
that that adopted by the Court is mistaken.

How CAN À RELATIVITY TEST BE APPLIED?

The conclusion is reached then that the Court’s statement in Ambatie-
los that it “is not necessary for the Court to find .. . that the [claimant]
Government’s interpretation of the treaty is the correct one” is applicable
to the determination of any issue (however worded) as to whether the
instrument relied on is relevant to the claim. It follows that, since the
Court cannot at this stage place a definitive construction on the 1955
Treaty and consequently cannot thereby set up a known benchmark by
reference to which it could determine whether there is a reasonable con-
nection between the Treaty and the claim, all that the Court can do in
determining whether such a connection exists is to say whether the inter-
pretation given by the applicant to the treaty “relied upon appears to be
one of the possible interpretations that may be placed upon it, though
not necessarily the correct one . . .” (Ambatielos, Merits, Judgment,
ICS. Reports 1953, p. 18).

Further, in determining whether the requisite connection exists, it is
useful to consider that, in the nature of things, it is only in exceptional
and clear cases that the Court may find that an applicant’s assertion that
the instrument relied on gave the right claimed lacks “some serious juridi-

32
832 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

cal basis”, to use one of the phrases employed by the Court. Counsel
would not advise litigation unless it was considered that some serious
juridical basis existed. That thought does not of course absolve the Court
of its responsibility to exclude cases lacking that characteristic; but it
does advise caution. If the Court has to wrestle its way to the conclusion
that a claim lacks a serious juridical basis, that is scarcely a case for
exclusion. The Jaffa claims in the Mavrommatis Palestine Concessions
case are illustrative. There the Court held that the dispute between the
two Governments concerning the claims “has no connection with
Article 11 of the Mandate and consequently does not fall within the cat-
egory of disputes for which the Mandatory has accepted the jurisdiction
of the Court” (P.C.LJ., Series A, No. 2, p. 29). In coming to this conclu-
sion — and the word “connection” may be noted — the Court observed
that it was “impossible to maintain” an argument leading to the opposite
effect (ibid., p. 28). Translated into the terminology of the later jurispru-
dence, that observation in a very early case would mean that, in the view
of the Court, the applicant’s construction of the instruments relied on as
capable of showing the necessary “connection” between the claims and
Article 11 of the Mandate was simply not arguable in the sense men-
tioned above.

How then is it to be determined whether the applicant’s construction of
the treaty is arguable? An objection that there is no reasonable connec-
tion between a claim and the treaty relied on really raises a dispute as to
whether there is a dispute within the meaning of the compromissory
clause which is sought to be invoked. So, it is helpful to recall that, as a
general matter, there is no dispute within the meaning of the law where
the claim lacks any reasonably arguable legal basis or where it is mani-
festly frivolous or unsupportable (Nuclear Tests (Australia v. France),
LC.J. Reports 1974, p. 430, Judge ad hoc Barwick, dissenting, and Mili-
tary and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), Merits, Judgment, I C.J. Reports 1986,
p. 535, Judge Jennings, dissenting. See also the analogous views of Judge
ad hoc Spiropoulos in his separate opinion in Ambatielos, Preliminary
Objection, Judgment, I.C.J. Reports 1952, p. 56). As was observed in the
joint dissenting opinion in the Nuclear Tests (Australia v. France) case:

“if an applicant were to dress up as a legal claim a case which to any
informed legal mind could not be said to have any rational, that is,
reasonably arguable, legal basis, an objection contesting the legal

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833 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

character of the dispute might be susceptible of decision in limine as
a preliminary question” (ZC.J. Reports 1974, p. 364, para. 107).

A tenable view is that whether the Applicant’s construction of the
Treaty in this case is “arguable”, or whether it is “sufficiently plausible,”
or whether the Treaty is “of relevance” to the claim, or whether the claim
has some “serious juridical basis”, is likewise to be decided by the Court
from the point of view that might be taken by “any informed legal
mind”. The Court can only hold that the Applicant’s construction is not
“arguable”, or that it is not “sufficiently plausible”, or that the Treaty is
not “of relevance” to the claim, or that the claim lacks some “serious
juridical basis”, or that the corresponding criterion set by other similar
formulations is not met, if, from the point of view of an informed legal
mind, it finds that the construction relied on is not based on rational and
reasonably arguable grounds, account being taken of the fact that, as was
remarked by Brierly, “different minds, equally competent may and often
do arrive at different and equally reasonable results”. To hold that this
opens the way to inadmissible subjectivity is to misunderstand the pro-
cesses of judicial thought: an ultimate standard by which the Court
appreciates many a legal issue is that set by the informed legal mind.

In sum, the law in action — as I also believe, the legal scientific com-
munity — gives recognition to the possibility of an arguable contention
being made that a given situation falls within a certain juridical category
as well as to the impossibility of an arguable contention being made to
that effect. In the first situation, there is a reasonable chance that the con-
tention may or may not prevail; in the second, it is clear that the conten-
tion must fail. In other words, the law in some cases allows for an evalua-
tion of the prospects of success, with resulting legal consequences. In like
manner, the jurisprudence of the Court discloses a jurisdictionally signifi-
cant distinction between a claim which is based on an arguable construc-
tion of the instrument relied on and a claim which is not based on an
arguable construction of the instrument relied on. In all these cases the
Court judges by the standard set by an informed legal mind.

4 Sir Hersch Lauterpacht and C. H. M. Waldock (eds.), The Basis of Obligation in
International Law and Other Papers by the Late James Leslie Brierly, 1958, p. 98. Or, as
it was said in an English case,

“Two reasonable [persons] can perfectly reasonably come to opposite conclusions
on the same set of facts without forfeiting their title to be regarded as reasonable. .. .
Not every reasonable exercise of judgment is right, and not every mistaken exercise of
judgment is unreasonable.” (Per Lord Hailsham, In re W. (An Infant), [1971] AC
682, HL, p. 700.)

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834 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

THE JUDGMENT IN RELATION TO PARTICULAR PROVISIONS
OF THE TREATY

Tf a lower test, such as that of a reasonable connection, is the right one,
it would strengthen the Judgment on some points, although also tending
on other points to yield results which might not be exactly the same as
those reached by the Court on the basis of the higher test used by it.

In a prefatory way, it would be right to have regard to the nature of
the case. The Respondent admits that it destroyed the Applicant’s oil
platforms in question, but it says that it did so in self-defence against
previous acts of aggression committed against it by the Applicant. If the
Applicant accepted that the Respondent was acting in self-defence but
sought to contend that the Treaty nonetheless prohibited the use of force
in self-defence, its contention to that effect would, in terms of the juris-
prudence referred to above, be unarguable to the point of being artificial.
In that event, it would be the duty of the Court to say at this stage that
such a contention could not found a dispute as to the interpretation or
application of the Treaty within the meaning of its compromissory clause
and accordingly to hold that the Court has no jurisdiction thereunder. To
hold otherwise would be to overlook the responsibility of the Court to
defend its process against abuse.

But the Applicant does not accept that the Respondent was acting in
self-defence; nor does it make the improbable assertion that the Treaty
prohibits the use of force in self-defence. It is saying that the use of force
by the Respondent was aggressive and that such use of force by one Party
against the other is prohibited by the Treaty (apart from any prohibition
flowing from general international law). The Respondent rightly accepts
that, for jurisdictional purposes, the Court has to proceed on the footing
that the Applicant is correct in its allegations as to what were the facts
relating to the merits. (For supporting dicta, see Mavrommatis Palestine
Concessions, Judgment No. 2, 1927, P.C.LJ., Series A, No. 2, pp. 74-75,
dissenting opinion of Judge Moore, and Nottebohm, Second Phase, Judg-
ment, 1. C.J. Reports 1955, p. 34, dissenting opinion of Judge Read). In
particular, the Respondent accepts that it is not open to the Court at this
stage of the proceedings to make a finding on its contention that it was
acting in self-defence (CR 96/13, p. 61). It is on this basis that the present
issues should be approached.

| *
As to Article I of the Treaty, in addition to the elements of the Pre-

amble referred to in the third paragraph of paragraph 27 of the Judg-
ment, relating to trade, investments, economic intercourse and consular

35
835 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

relations, the Preamble, in its opening sentences, stated that the parties
were “desirous of emphasizing the friendly relations which have long pre-
vailed between their peoples, of reaffirming the high principles in the
regulation of human affairs to which they are committed . . .”. Stressing
this part of the Preamble as being also pertinent to an appreciation of
the object and purpose of the Treaty, the Applicant emphasized that
Article I (which has no counterpart in the FCN Treaty in Military and
Paramilitary Activities in and against Nicaragua) is in any event not a
preambular statement; it is part of the operative provisions of the Treaty.
Being an operative provision, it might be thought that it is at least argu-
able that it is not merely “aspirational”, but that it has a normative char-
acter — that it propounds a rule of conduct. There is not in principle any
reason why parties cannot by treaty bind themselves legally to live in firm
and enduring peace and sincere friendship with each other. In Military
and Paramilitary Activities in and against Nicaragua, the Court recog-
nized that it was possible for parties by an appropriately worded treaty to
bind themselves “to abstain from any act toward the other party which
could be classified as an unfriendly act, even if such act is not in itself the
breach of an international obligation” (Military and Paramilitary Activi-
ties in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I. C.T. Reports 1986, pp. 136-137, para. 273). To deter-
mine whether there is jurisdiction to decide whether Article I of the 1955
Treaty is such a provision, the Court would have needed to ask whether
the close and extensive arguments between the Parties (not here fully
recited) sufficed to show that the Applicant’s construction of
the provision was an arguable one, even if it might later turn out to be
incorrect. This has not been the Court’s approach.

There is a further point. The Court seems to have proceeded on the
basis that, if the provision does not create a legal obligation, that suffices
to negative the existence of jurisdiction (see Judgment, paras. 31 and 52).
However, even if the provision does not create a legal obligation, it need
not follow that there cannot be a dispute as to its interpretation or appli-
cation so as to give the Court jurisdiction. As has been noted above,
unlike the position in some other treaties, the compromissory clause in
this case applies in relation to the whole of the treaty, and not only to
some parts of it; the clause speaks of “[a]ny dispute . . . as to the inter-
pretation or application of the present Treaty .. .”. Article I is part of the
Treaty. There can be a dispute between the Parties as to whether it cre-
ates a legal norm. That dispute can be a dispute within the meaning of
the compromissory clause and can give rise to jurisdiction. The Court has
not pursued the enquiry along these lines.

Also, if the existence of a dispute as to whether Article I of the Treaty
creates a legal obligation suffices to confer jurisdiction, there could be cir-

36
836 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

cularity in holding that there is no jurisdiction because the provision does
not create a legal obligation. Whether it creates a legal obligation is the
substance of the dispute and can only be ascertained in exercise of juris-
diction to determine the dispute. On the test which it has used, the Court
has not had occasion to consider whether a holding that the provision
creates no legal obligation presupposes the existence of the jurisdiction
which has been found wanting in respect of the provision.

Finally, I entertain a reservation over the Court’s treatment of the
Respondent’s internal documentation relating to its ratification pro-
cedures (Judgment, para. 29, first paragraph). This material does not
form part of the travaux préparatoires of the previously ended treaty
negotiations or part of the circumstances of the conclusion of the Treaty.
Nor does it evidence any subsequent practice of the Parties in the appli-
cation of the Treaty which establishes their agreement regarding its inter-
pretation. The argument based on the fact that the material was in part
introduced by the Applicant is a powerful one; but perhaps it does not go
far enough. It is necessary to distinguish between the material and what it
proves, and more particularly as compared with what has to be proved.
In Anglo-Iranian Oil Co., in the view of the Court what had to be proved
was the intention of a single party in making a declaration which was
treated by the Court as a unilateral statement, and not as a treaty provi-
sion; the material in question was regarded as admissible to prove that
intention (Z.C.J. Reports 1952, p. 107). In this case, what has to be
proved is the common intention of both Parties as expressed in the text of
the concluded treaty. The Court does not say that the material in ques-
tion shows that the Applicant’s understanding of the Treaty was the same
as the Respondent’s. Taken at the highest in favour of the Respondent,
what the material shows is that the Respondent’s then understanding of
the Treaty was the same as its present understanding. But this unilateral
consistency does not make the material relevant to proof of that which
has to be proved; what is relevant is not the Respondent’s separate
understanding, however consistent, but the common intention of both
Parties as expressed in the terms of the concluded Treaty.

+

As to Article IV, paragraph 1, of the Treaty, the Judgment favours the
Applicant on all points, save one. This concerns the meaning of the word
“treatment” in the phrase “fair and equitable treatment” appearing in
that provision. The result of the Court’s reasoning is that the word does
not cover a case of State destruction by armed force. If, as seems likely,

37
837 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

the word covers a case of property which is, by armed force, taken and
retained by a State for its own use, it may be arguable that it likewise
covers a case of property which is, by armed force, taken by the State by
destroying it: the idea that property destroyed is property taken is known
to law>. Hence, if a State takes property, either for its own use or for the
purpose of destroying it, there could be a question whether that consti-
tutes impermissible “treatment” in one case as much as in the other. On
the test which it has used, the Court has not had occasion to consider a
question of this kind.

In a subsidiary way, I would add that the last three sentences of para-
graph 36 of the Judgment rest on a misconception. True, as is obvious,
Article IV, paragraph 1, of the Treaty does not regulate military action
by one party against the other. But it does not follow that military action
cannot result in a violation of that provision, as is suggested by this part
of the Judgment. Elsewhere, in paragraph 21, the Judgment correctly
recognizes that the use of force could lead to a breach of the provisions of
the Treaty, even if the Treaty does not regulate the use of force. There
was no state of war between the Parties, and no question of the Treaty
being suspended; on the contrary, as paragraph 15 of the Judgment
makes clear, both Parties agreed that the Treaty was at all times in effect.
The use of armed force could obviously involve impermissible treatment
of the nationals of a party or of their property, contrary to the obliga-
tions imposed by Article IV, paragraph 1, of the Treaty.

On the other hand, the following may be added in support of the posi-
tion taken by the Court on Article X, paragraph 1, of the Treaty:

First, as to whether, in the phrase “commerce and navigation” appear-
ing in Article X, paragraph 1, of the Treaty, the word “commerce” is
qualified by the word “navigation” so as to refer only to maritime com-
merce as submitted by the Respondent. In its 1986 Judgment in the Mili-
tary and Paramilitary Activities in and against Nicaragua case, the Court
considered that the laying of mines in the port constituted “an infringe-
ment... of the freedom of communications and of maritime commerce”
LCJ. Reports 1986, p. 129, para. 253). But that remark was based on
certain navigation rights existing under “customary international law”
(ibid., p. 112, para. 214); thus, the Court spoke of “obligations under cus-
tomary international law . . . not to interrupt peaceful maritime com-

$ See Corpus Juris Secundum, Vol. 29A, 1965, pp. 442 ff.

38
838 OIL PLATFORMS (SEP. OP, SHAHABUDDEEN)

merce” (LC.J. Reports 1986, p. 147, para. 292 (6)). When the Court came
to consider whether the laying of mines violated the “freedom of com-
merce and navigation” clause set out in Article XIX, paragraph 1, of the
1956 FCN Treaty, it did not speak of “maritime commerce”; it spoke of
the respondent’s “obligations under Article XIX of the” FCN Treaty
(ibid., p. 147, para. 292 (7)). It is legitimate to suppose that this careful
difference in expressions signified that the Court wished to avoid being
thought to be limiting “freedom of commerce” under the Treaty to free-
dom of maritime commerce. Also, if, as it seems, the Court considered
that freedom of commerce under Article XTX, paragraph 1, of the Treaty
was not limited to maritime commerce but embraced all forms of com-
merce, this would explain why the Court held that the respondent, “by
the attacks on Nicaraguan territory . . . has acted in breach of its obliga-
tions under Article XIX of the Treaty .. .” (ibid., p. 148, para. 292 (11)).
It was on the basis of a contrary view that the clause was “exclu-
sively devoted to matters of maritime commerce” that Judge Oda
expressed dissatisfaction with this part of the Judgment (ibid., p. 251,
para. 84, dissenting opinion). There is some basis for reading the Court’s
1986 Judgment as leading to the conclusion that freedom of “commerce
and navigation” under Article X, paragraph 1, of the 1955 Treaty between
the Parties in this case was not restricted to maritime commerce.

Second, as to the argument — an argument of some force — that the
oil platforms in question related to production and not to commerce.
There is manifestly a distinction between the two processes; but where
the precise line is to be drawn between them is less clear in the case of an
industry in which production was closely articulated to external com-
merce. Take the hypothesis (suggested by paragraph 51, first paragraph,
of the Judgment) of a State being dependent for its foreign currency earn-
ings on its exports of locally produced oil. Conceivably, another State,
desiring to eliminate the commerce productive of these export earnings,
may proceed either to blockade the export facilities or to destroy the oil
production facilities. It is not altogether clear that the particular method
employed lessens the fact that, either way, the second State would have
accomplished its purpose of eliminating the first State’s commerce in oil.
The suggested distinction, in its strict form, is not easily accommodated
by the Treaty when this is interpreted in the geopolitical framework in
which it was negotiated: the shelter given to commerce was intended, at
the time when it was given, largely for the future protection of export-
oriented economic interests of the Respondent’s corporations in the
Applicant’s oil industry. Some weight may be accorded to the Appli-
cant’s proposition that the same words in similar treaties may have dif-
ferent meanings when the particular treaty is interpreted in the special
context in which it was negotiated. These considerations may be neither
right nor decisive; but they are sufficient to suggest that the Applicant

39
839 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

may be correctly allowed to argue in favour of its point of view at the
merits stage.

DISADVANTAGES TO THE PARTIES OF THE CouRT’S TEST

If, for the foregoing reasons, it is thought that the Court’s test creates
some disadvantages for the Applicant, it need not be assumed that it
leads to no disadvantages for the Respondent; it does. And they could be
serious.

Take the holdings against the Respondent in paragraphs 21 and 51 of
the Judgment. It is true that a holding on jurisdiction does not conclude
issues at the merits. But if, in deciding the jurisdictional issue, the Court
could competently render a definitive interpretation of the Treaty, it is
difficult to see how that interpretation could fail to govern at the merits
stage, where that stage is reached. In the first of the two holdings referred
to, the Court rejects the Respondent’s contention that the Treaty of 1955
cannot apply to questions concerning the use of force. Theoretically, it
may be argued that this holding would not prevent the Respondent from
arguing at the merits stage that the Treaty cannot apply to questions con-
cerning the use of forcef. But, given the importance of the opposite inter-
pretation to the holding made by the Court at the preliminary stage, it is
difficult to see how that interpretation could be reversed at the merits
stage. In practice, the Respondent would thus be prevented from putting
forward at the merits stage an argument essential to the substance of its
case; in a conceivable case, even though not in this, that might be the
respondent’s only argument on the substance. In the second of the two
holdings, the Court rejects the Respondent’s contention that the claims
of the Applicant cannot be founded upon Article X, paragraph 1, of the
Treaty of 1955. Would not this holding likewise prevent the Respondent
from arguing at the merits stage that the claims of the Applicant cannot
be founded upon Article X, paragraph 1, of the Treaty of 1955?

In the normal way, these are issues which the Respondent is considered
free to argue at the merits stage for the reason that they bear on the ques-
tion of the existence of the legal obligations which have been allegedly

6 See Georges Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour
internationale, 1967, p. 246.

40
840 OIL PLATFORMS (SEP. OP, SHAHABUDDEEN)

breached. The right to argue at the merits that the alleged obligations did
not exist in law is distinct from the right to rely, by way of defence on the
merits, on the matters specified in Article XX, paragraph 1 (d), of the
Treaty, a subject discussed in paragraph 20 of the Judgment. The right to
rely on such specified matters by way of defence on the merits is not
therefore an answer to the fact that the Judgment deprives the Respon-
dent of the opportunity to argue that the obligations in question did not
in the first instance exist. There would be no need to rely on the specified
matters by way of defence on the merits if it was established that the
alleged obligations did not exist in law.

These difficulties do not arise if the correct jurisdictional test is whether
the Applicant’s construction of the Treaty is an arguable one. If all that
the Court holds is that the Applicant’s interpretation of the Treaty is an
arguable one, it does not follow that the Court is saying that the Respon-
dent’s interpretation is wrong. Both interpretations could be arguable;
indeed, it may happen that the Applicant’s interpretation does not pre-
vail at the merits stage, and that it is the Respondent’s interpretation
which is eventually upheld. On this approach, nothing would prevent the
Respondent from advancing its interpretation of the Treaty at the merits
stage. But the argument then will be a different one. It will not be
addressed to the preliminary question whether the Applicant can present
an arguable contention that the Treaty applies to the alleged acts; it will
be addressed to the substantive question whether the Treaty applies to
those acts. The former question, which is decided in exercise of the
Court’s compétence de la compétence, goes to the right of the Applicant
to have its claim adjudicated. By contrast, the latter question, which is
decided in exercise of the Court’s substantive jurisdiction, goes to the
adjudication of the claim on the basis that the Applicant has a right to
have the claim adjudicated. It goes to the question whether the obliga-
tion, which the Applicant claims was breached, exists in law: if the obli-
gation does not exist, there could be no breach of any obligation and the
claim that there was a breach of an obligation fails on the merits.

CONCLUSION

Possibilities for improvement do not prevent me from giving support
to the dispositif in the form in which it stands. I have given that support.
It appears to me, however, that the Court has not paid sufficient regard
to the fact that the question at this stage is not whether the Applicant’s
claims are sound in law, but whether the Applicant is entitled to an adju-
dication of its claims. The neglect to distinguish between these issues as
consistently as was required corresponds with the fact that the Court has
sought to make a definitive determination of the meaning of the 1955
Treaty, whereas, in my view, it should merely have asked whether the
construction of the Treaty on which the Applicant relied was an arguable

41
841 OIL PLATFORMS (SEP. OP. SHAHABUDDEEN)

one, even if it might eventually turn out to be incorrect. The respectful
impression with which I thus leave the case is that the test which the
Court has used has precluded it from asking the right questions. In the
result, the principle on which the Judgment is constructed is not adequate
to do full justice to either Party; it creates unnecessary disadvantages for
both.

(Signed) Mohamed SHAHABUDDEEN.

42