pil recit cases until module 13

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AMINOIL CASE (KUWAIT V. AMERICAN INDEPENDENT OIL CO.)

In 1948 Kuwait granted to Aminoil, a US company, a 60-year oil concession. The price for

the concession was based on a fixed royalty for every ton of oil recovered. The Concession

Agreement contained a stabilization clause that prevented Kuwait from unilaterally

annulling or altering the terms of the Agreement. In 1961 Kuwait and Aminoil supplement

the fixed-royalties principle of the Concession Agreement with a 50/50 profit-sharing

arrangement. In 1973 the parties agreed on another set of changes to the Concession

Agreement further increasing the Government’s ‘take’. Although the 1973 Draft Agreement

was never ratified by the Kuwaiti parliament, in a separate letter the parties agreed to apply

the agreement as if it was ratified. Subsequently, Kuwait demanded to further increase its

‘take’ under the ‘Abu Dhabi formula’ agreed by the OPEC countries. Aminoil did not

consent and in 1977 Kuwait nationalized the concession with an envisaged payment of

‘fair’ compensation. On the basis of a separate arbitration agreement, Aminoil initiated

arbitration proceedings contesting the nationalization as contrary to the stabilization

clause. Aminoil also challenged the 1973 agreement and the ‘Abu Dhabi formula’ and

claimed damages of almost US$ 3 billion (largely lost profits until 2008). Kuwait

counterclaimed and requested the sums allegedly owed to it by Aminoil under the 1973

agreement and the ‘Abu Dhabi formula’. The Tribunal found that both 1973 Draft

Agreement and ‘Abu Dhabi formula’ were valid and applicable to Aminoil’s concession. The

Tribunal further determined that the nationalization was lawful and did not violate the

stabilization clause, as the latter prevented only ‘confiscatory nationalizations’. The

Tribunal held that in accordance with the 1962 UN Resolution, Aminoil was entitled to‘appropriate compensation’. The latter was calculated by the Tribunal on the basis of

Aminoil’s assets valued using their replacement cost (the net book value method was

rejected as inadequate) and Aminoil’s value as a going concern estimated on the basis of

Aminoil’s legitimate expectations of a reasonable rate of return. The resulting amount was

decreased by Aminoil’s debt to Kuwait, leaving US$ 83 million in compensation. This

amount was adjusted to account for inflation; compound interest was awarded.

YOUMANS CASE

Facts:

The Mexican military forces, instead of protecting American citizens being attacked by a

mob, OPENED FIRE on said Americans. As a result they were killed either by the military

or by the mob. No one appeard to be punished for said crimes although some

prosecutions were begun

Youmans was an American Citizen and along two other Americans were killed in Mexico

The Americans were engaged under contract with a British Corp in driving a tunnel.The work was being done by Mexican Laborers under the supervision of the Americans

The conflict arose when Connelly was fighting with a Mexican labourer over his wages



The labourers threw stones at Connely however, Connely had a shotgun so boom

The 3 Americans tried to defend themselves from a mob of around 1000 Mexicans

The Americans sought help from the Mexican officials but instead of helping them, they

opened fire on the Americans

The Mexican govt were only able to institute an action against 29 members of the mob

some got the capital punishment but such sentences were subsequently modified.

Issue:

W/N the Mexican authorities were negligent in the manner of protecting the American

citizens

W/N there were proper efforts by the Mexican Govt to apprehend and punish the persons

participating in the attack

Held:

Yes, the claim against Mexico was allowed, the evidence on record sustained such

conclusion. The commission was of the opinion that the record shows a lack of diligence in

the punishment of the persons implicated in the crime

The Mexican labourers who got arrested escaped from prison and some of them were on

bail

The soldiers who participated were arrested but not convicted

On the issue on the issue of responsibility of the State in relation to the illegal acts done by

its officials resulting to damages to foreigners

General Rule was that an illegal act done by its officials cannot hold the Government liable

since it was done outside his scope of authority. In other words, the illegal acts done were

made in a private capacity which would not make the State liable.The committee however did not subscribe to this view and instead ruled that at the time of

the commission of the acts the soldiers were on duty and were under the supervision and

presence of a commanding officer. Hence the committee decided that mexico should pay

the US on behalf of Youman

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YOUMANS CASE – “disobedient soldiers / personal acts” Soldiers were sent to protect

aliens who ended up participating in the attack resulting to the killing of the aliens. Soldiers

inflicting personal injuries or committing wanton destruction or looting, or who act in

disobedience of some rules laid down by superior authority would not entail the

responsibility of the state but would constitute personal acts of the soldiers.

CLAIRE CLAIMS CASE

Facts:Caire was a French national who was killed in Mexico by MEXICAN SOLDIERS after they

had demanded money from him. The perpetrators of the crime were military personnel



occupying ranks such as “mayor” and “capitan primero.” These officers belonged to the

brigade of Villista general Urbina, who exacted

the remitteance of certain sums of money. Their modus operandi was to take the victim to

their barracks and from there they tried to extract the money from their hapless victim.

Caire was one such victim and after his refusal to comply with their extortions, the military

officers shot him.

Issue:

W/N these acts entail international responsibility upon Mexico

Held:

YES, the responsibility for all the acts committed by its officials or organs which constitute

offences from the point of view of the law of nations, whether the official has acted within or

exceeds the limits of his competences are acts IMPUTABLE to the State. “Objective

Responsibility of States”-responsibility for the acts of the officials which may devolve upon

it even in the absence of any “fault” of its own

In order to admit this objective responsibility of the state for acts committed by its officials

outside the scope of their authority, they MUST have:

a.) Acted at least to all appearances as competent officials or organs

b.) Used powers or methods appropriate to their official capacity

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THE CLAIRE CLAIM – “Mexican soldiers / objective test / apparent authority” Mexicansoldiers demanded money from a French National and thereafter killed him. Is Mexico

responsible? Yes. True that states are not held responsible for acts of officials beyond the

scope of their competence – otherwise international relations will become too complicated

and strained. The objective test can be applied – in w/c case it suffices is the officer acts at

least to all appearances as a competent official, and used powers and means placed in his

disposition in his official capacity. Such circumstances attend in this case. The perpetrators

conducted themselves as soldiers of Mexico and even took the victim to the barracks. The

ultimate test is the amount of state control w/c ought to have been exercised under the

circumstances.

US DIPLOMATIC AND CONSULAR STAFF IN TEHRAN

In its Judgment in the case concerning United States Diplomatic and Consular Staff in

Tehran, the Court decided (1) that Iran has violated and is skill violating obligations owed

by it to the United States; (2) that these violations engage Iran's responsibility; (3) that the

Government of Iran must immediately release the United States nationals held ashostages and place the premises of the Embassy in the hands of the protecting power; (4)

that no member of the United States diplomatic or consular staff may be kept in Iran to be



subjected to any form of judicial proceedings or to participate in them as a witness; (5) that

Iran is under an obligation to make reparation for the injury caused to the United States,

and (6) that the form and amount of such reparation, failing agreement between the

parties, shall be settled by the Court. (The full text of the operative paragraph is

reproduced below.)

These decisions were adopted by large majorities: (1) and (2) - 13 votes to 2; (3) and

(4) - unanimously; (5) - 12 votes to 3; (6) - 14 votes to 1 (the votes are recorded by name

below).

*

* *

A separate opinion was appended to the Judgment by Judge Lachs, who voted against

operative paragraph 5. Dissenting opinions were appended by Judge Morozov, who voted

against paragraphs 1, 2, 5 and 6, and by Judge Tarazi, who voted against paragraphs 1, 2

and 5.

Procedure before the Court (paras. 1-10)

In its Judgment, the Court recalls that on 29 November 1979 the United States of America

had instituted proceedings against Iran in a case arising out of the situation at its Embassy

in Tehran and Consulates at Tabriz and Shiraz, and the seizure and detention as hostages

of its diplomatic and consular staff in Tehran and two more citizens of the United States.

The United States having at the same time requested the indication of provisional

measures, the Court, by a unanimous Order of 15 December 1979, indicated, pending

final judgment, that the Embassy should immediately be given back and the hostages

released (see Press Communiqu No. 80/1).The procedure then continued in accordance with the Statute and Rules of Court. The

United States filed a Memorial, and on 18, 19 and 20 March 1980 the Court held a public

hearing at the close of which the United States, in its final submissions, requested it to

adjudge and declare, inter alia,that the Iranian Government had violated its international

legal obligations to the United States and must: ensure the immediate release of the

hostages; afford the United States diplomatic and consular personnel the protection and

immunities to which they were entitled (including immunity from criminal jurisdiction) and

provide them with facilities to leave Iran; submit the persons responsible for the crimes

committed to the competent Iranian authorities for prosecution, or extradite them to the

United States; and pay the United States reparation, in a sum to be subsequently

determined by the Court.

Iran took no part in the proceedings. It neither filed pleadings nor was represented at the

hearing, and no submissions were therefore presented on its behalf. Its position was

however defined in two letters addressed to the Court by its Minister for Foreign Affairs on

9 December 1979 and16 March 1980 respectively. In these the Minister maintained inter

alia that the Court could not and should not take cognizance of the case.

The Facts (paras. 11-32)The Court expresses regret that Iran did not appear before it to put forward its arguments.

The absence of Iran from the proceedings brought into operation Article 53 of the Statute,



under which the Court is required, before finding in the Applicant's favour, to satisfy itself

that the allegations of fact on which the claim is based are well founded.

In that respect the Court observes that it has had available to it, in the documents

presented by the United States, a massive body of information from various sources,

including numerous official statements of both Iranian and United States authorities. This

information, the Court notes, is wholly concordant as to the main facts and has all been

communicated to Iran without evoking any denial. The Court is accordingly satisfied that

the allegations of fact on which the United States based its claim were well founded.

Admissibility (paras. 33-44)

Under the settled jurisprudence of the Court, it is bound, in applying Article 53 of its

Statute, to investigate, on its own initiative, any preliminary question of admissibility or

jurisdiction that may arise.

On the subject of admissibility, the Court, after examining the considerations put forward in

the two letters from Iran, finds that they do not disclose any ground for concluding that it

could not or should not deal with the case. Neither does it find any incompatibility with the

continuance of judicial proceedings before the Court in the establishment by the Secretary-

General of the United Nations, with the agreement of both States, of a Commission given a

mandate to undertake a fact-finding mission to Iran, hear Iran's grievances and facilitate

the solution of the crisis between the two countries.

Jurisdiction (paras. 45-55)

Four instruments having been cited by the United States as bases for the Court's

jurisdiction to deal with its claims, the Court finds that three, namely the Optional Protocols

to the two Vienna Conventions of 1961 and 1963 on, respectively, Diplomatic and ConsularRelations, and the 1955 Treaty of Amity, Economic Relations, and Consular Rights

between the United States and Iran, do in fact provide such foundations.

The Court, however, does not find it necessary in the present Judgment to enter into the

question whether Article 13 of the fourth instrument so cited, namely the 1973 Convention

on the Prevention and Punishment of Crimes against Internationally Protected Persons

including Diplomatic Agents, provides a basis for the exercise of its jurisdiction with respect

to the United States' claims thereunder.

MERITS: Attributability to the Iranian State of the acts complained of, and violation by Iran

of certain obligations (paras. 56-94)

The Court has also, under Article 53 of its Statute, to satisfy itself that the claims of the

Applicant are well founded in law. To this end, it considers the acts complained of in order

to determine how far, legally, they may be attributed to the Iranian State (as distinct from

the occupiers of the Embassy) and whether they are compatible or incompatible with Iran's

obligations under treaties in force or other applicable rules of international law.

(a) The events of 4 November 1979 (paras. 56-68)

The first phase of the events underlying the Applicant's claims covers the armed attack on

the United States Embassy carried out on 4 November 1979 by Muslim Student Followersof the Imam's Policy (further referred to as "the militants" in the Judgment), the overrunning



of its premises, the seizure of its inmates as hostages, the appropriation of its property and

archives, and the conduct of the Iranian authorities in the face of these occurrences.

The Court points out that the conduct of the militants on that occasion could be directly

attributed to the Iranian State only if it were established that they were in fact acting on its

behalf. The information before the Court did not suffice to establish this with due certainty.

However, the Iranian State - which, as the State to which the mission was accredited, was

under obligation to take appropriate steps to protect the United States Embassy - did

nothing to prevent the attack, stop it before it reached its completion or oblige the militants

to withdraw from the premises and release the hostages. This inaction was in contrast with

the conduct of the Iranian authorities on several similar occasions at the same period,

when they had taken appropriate steps. It constituted, the Court finds, a clear and serious

violation of Iran's obligations to the United States under Articles 22 (2), 24, 25, 26, 27 and

29 of the 1961 Vienna Convention on Diplomatic Relations, of Articles 5 and 36 of the

1963 Vienna Convention on Consular Relations, and of Article 11 (4) of the 1955 Treaty.

Further breaches of the 1963 Convention had been involved in failure to protect the

Consulates at Tabriz and Shiraz.

The Court is therefore led to conclude that on 4 November 1979 the Iranian authorities

were fully aware of their obligations under the conventions in force, and also of the urgent

need for action on their part, that they had the means at their disposal to perform their

obligations, but that they completely failed to do so.

(b) Events since 4 November 1979 (paras. 69-79)

The second phase of the events underlying the United States' claims comprises the whole

series of facts which occurred following the occupation of the Embassy by the militants.Though it was the duty of the Iranian Government to take every appropriate step to end the

infringement of the inviolability of the Embassy premises and staff, and to offer reparation

for the damage, it did nothing of the kind. Instead, expressions of approval were

immediately heard from numerous Iranian authorities. Ayatollah Khomeini himself

proclaimed the Iranian State's endorsement of both the seizure of the premises and the

detention of the hostages. He described the Embassy as a "centre of espionage", declared

that the hostages would (with some exceptions) remain "under arrest" until the United

States had returned the former Shah and his property to Iran, and forbade all negotiation

with the United States on the subject. Once organs of the Iranian State had thus given

approval to the acts complained of and decided to perpetuate them as a means of

pressure on the United States, those acts were transformed into acts of the Iranian State:

the militants became agents of that State, which itself became internationally responsible

for their acts. During the six months which ensued, the situation underwent no material

change: the Court's Order of 15 December 1979 was publicly rejected by Iran, while the

Ayatollah declared that the detention of the hostages would continue until the new Iranian

parliament had taken a decision as to their fate.

The Iranian authorities' decision to continue the subjection of the Embassy to occupation,and of its staff to detention as hostages, gave rise to repeated and multiple breaches of

Iran's treaty obligations, additional to those already committed at the time of the seizure of



the Embassy (1961 Convention: Arts. 22, 24, 25, 26, 27 and 29 1963 Convention: inter

alia, Art. 33; 1955 Treaty, Art. II (4)).

With regard to the Charg d'affaires and the two other members of the United States

mission who have been in the Iranian Ministry of Foreign Affairs since 4 November 1979

the Court finds that the Iranian authorities have withheld from them the protection and

facilities necessary to allow them to leave the Ministry in safety. Accordingly, it appears to

the Court that in their respect there have been breaches of Articles 26 and 29 of the 1961

Vienna Convention.

Taking note, furthermore, that various Iranian authorities have threatened to have some of

the hostages submitted to trial before a court, or to compel them to bear witness, the Court

considers that, if put into effect, that intention would constitute a breach of Article 31 of the

same Convention.

(c) Possible existence of special circumstances (paras. 80-89)

The Court considers that it should examine the question whether the conduct of the Iranian

Government might be justified by the existence of special circumstances, for the Iranian

Minister for Foreign Affairs had alleged in his two letters to the Court that the United States

had carried out criminal activities in Iran. The Court considers that, even if these alleged

activities could be considered as proven, they would not constitute a defence to the United

States' claims, since diplomatic law provides the possibility of breaking off diplomatic

relations, or of declaring persona non "rata members of diplomatic or consular missions

who may be carrying on illicit activities. The Court concludes that the Government of Iran

had recourse to coercion against the United States Embassy and its staff instead of

making use of the normal means at its disposal.(d) International responsibility (paras. 90-92)

The Court finds that Iran, by committing successive and continuing breaches of the

obligations laid upon it by the Vienna Conventions of 1961 and 1963, the 1955 Treaty, and

the applicable rules of general international law, has incurred responsibility towards the

United States. As a consequence, there is an obligation on the part of the Iranian State to

make reparation for the injury caused to the United States. Since, however, the breaches

are still continuing, the form and amount of such reparation cannot yet be determined.

At the same time the Court considers it essential to reiterate the observations it made in its

Order of 15 December 1979 on the importance of the principles of international law

governing diplomatic and consular relations. After stressing the particular gravity of the

case, arising out of the fact that it is not any private individuals or groups that have set at

naught the inviolability of an embassy, but the very government of the State to which the

mission is accredited, the Court draws the attention of the entire international community to

the irreparable harm that may be caused by events of the kind before the Court. Such

events cannot fail to undermine a carefully constructed edifice of law the maintenance of

which is vital for the security and well-being of the international community.

(e) United States operation in Iran on 24-25 April 1980 (paras. 93 and 94)With regard to the operation undertaken in Iran by United States military units on 24-

25 April 1980, the Court says that it cannot fail to express its concern. It feels bound to



observe that an operation undertaken in those circumstances, from whatever motive, is of

a kind calculated to undermine respect for the judicial process in international relations.

Nevertheless, the question of the legality of that operation can have no bearing on the

evaluation of Iran's conduct on 4 November 1979. The findings reached by the Court are

therefore not affected by that operation.

*

* *

For these reasons, the Court gives the decision reproduced in full below.

OPERATIVE PART OF JUDGMENT

THE COURT,* [Composed as follows: President Sir Humphrey Waldock; Vice-President

Elias; Judges Forster, Gros, Lachs, Morozov, Nagendra Singh, Ruda, Mosler, Tarazi, Oda,

Ago, El-Erian, Sette-Camara and Baxter.]

1. By thirteen votes [President Sir Humphrey Waldock; Vice-President Elias; Judges

Forster, Gros, Lachs, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara

and Baxter.] to two [Judges Morozov and Tarazi.],

Decides that the Islamic Republic of Iran, by the conduct which the Court has set out in

this Judgment, has violated in several respects, and is skill violating, obligations owed by it

to the United States of America under international conventions in force between the two

countries, as well as under long-established rules of general international law;

2. By thirteen votes [President Sir Humphrey Waldock; Vice-President Elias; Judges

Forster, Gros, Lachs, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara

and Baxter.] to two [Judges Morozov and Tarazi.],

Decides that the violations of these obligations engage the responsibility of the IslamicRepublic of Iran towards the United States of America under international law;

3. Unanimously,

Decides that the Government of the Islamic Republic of Iran must immediately take all

steps to redress the situation resulting from the events of 4 November 1979 and what

followed from these events, and to that end:

(a) must immediately terminate the unlawful detention of the United States Charg d'affaires

and other diplomatic and consular staff and other United States nationals now held

hostage in Iran, and must immediately release each and every one and entrust them to the

protecting Power (Article 45 of the 1961 Vienna Convention on Diplomatic Relations);

(b) must ensure that all the said persons have the necessary means of leaving Iranian

territory, including means of transport;

(c) must immediately place in the hands of the protecting Power the premises, property,

archives and documents of the United States Embassy in Tehran and of its Consulates in

Iran;

4. Unanimously,

Decides that no member of the United States diplomatic or consular staff may be kept in

Iran to be subjected to any form of judicial proceedings or to participate in them as awitness;



5. By twelve votes [President Sir Humphrey Waldock; Vice-President Elias; Judges Forster,

Gros, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Erian, Sette-Camara and Baxter.] to

three [JudgesLachs, Morozov and Tarazi.],

Decides that the Government of the Islamic Republic of ban is under an obligation to make

reparation to the Government of the United States of America for the injury caused to the

latter by the events of 4 November 1979 and what followed from these events;

6. By fourteen votes [President Sir Humphrey Waldock; Vice-President Elias; Judges

Forster, Gros, Lachs, Nagendra Singh, Ruda, Mosler, Tarazi, Oda, Ago, El-Erian, Sette-

Camara and Baxter.] to one [Judge Morozov.],

Decides that the form and amount of such reparation, failing agreement between the

Parties, shall be settled by the Court, and reserves for this purpose the subsequent

procedure in the case.

__________

SUMMARY OF OPINIONS APPENDED TO THE JUDGMENT

Judge Lachs indicated that he voted against the first part of operative paragraph 5, as he

found it redundant. The responsibility having been established, the whole question of

reparations should have been left to the subsequent procedure, including the question of

form and amount as provided by the Judgment.

The opinion stresses the importance of the Judgment for diplomatic law, and the major

part of it is devoted to the question of the practical solution by diplomatic means of the

dispute between the Parties. Once the legal issues have been clarified by the Judgment,

the parties should take speedy action and make maximum efforts to dispel tension and

mistrust, and in this a third-party initiative may be important. Judge Lachs visualizes aparticular role for the Secretary-General of the United Nations in this respect and the work

of a special commission or mediating body. In view of the gravity of the situation, the need

for a resolution is urgent.

*

* *

In his dissenting opinion, Judge Morozov indicates that operative paragraph 1 of the

Judgment is drafted in such a way that it is not limited to the question of the violation of the

Vienna Conventions of 1961 and 1963, but also covers, if read with some paragraphs of

the reasoning, the question of alleged violations of the 1955 Treaty of Amity, Economic

Relations and Consular Rights between Iran and the United States; this treaty, he believes,

does not provide the parties with an unconditional right to invoke the compulsory

jurisdiction of the Court, and in the circumstances the Court has in fact no competence to

consider the alleged violations.

Furthermore, Judge Morozov observes, the United States committed during the period of

the judicial deliberations many unlawful actions, culminating in the military invasion of the

territory of the Islamic Republic of Iran, and has therefore lost the legal right to refer to the

Treaty in its relations with Iran.Judge Morozov voted against operative paragraphs 2, 5 and 6 because he had noted that

a series of actions was undertaken by the United States of America against Iran in the



course of the judicial deliberations, in particular the freezing by the United States of very

considerable Iranian assets, combined with the intention, clearly expressed in a statement

made by the President of the United States on 7 April 1980 to make use of these assets, if

need be, in accordance with decisions that would betaken in the domestic framework of

the United States; that meant that the United States was acting as a "judge" in its own

cause. In Judge Morozov's view, the situation, created by actions of the United States, in

which the Court carried on its judicial deliberations in the case had no precedent in the

whole history of the administration of international justice either before the Court or before

any other international judicial institution. The United States, having caused severe

damage to Iran, had lost the legal as well as the moral right to reparations from Iran, as

mentioned in operative paragraphs 2, 5 and 6.

Judge Morozov also finds that some paragraphs of the reasoning part of the Judgment

describe the circumstances of the case in an incorrect or one-sided way.

He considers that, without any prejudice to the exclusive competence of the Security

Council, the Court, from a purely legal point of view, could have drawn attention to the

undeniable fact that Article 51 of the United Nations Charter, establishing the right of self-

defence to which the United States of America referred in connection with the events of 24-

25 April, may be invoked only "if an armed attack occurs against a member of the United

Nations", and that there is no evidence of any armed attack having occurred against the

United States.

Judge Morozov also stresses that some indication should have been included in the

Judgment to the effect that the Court considered that settlement of the dispute between

the United States and the Islamic Republic of Iran should be reached exclusively bypeaceful means.

*

* *

Judge Tarazi voted in favour of operative paragraphs 3 and 4 of the Judgment, because he

considered that the seizure of the embassy, and the detention as hostages of those

present in it, constituted an act in breach of the provisions of the 1961 and 1963 Vienna

Conventions on Diplomatic and Consular Relations.

On the other hand, Judge Tarazi felt impelled to vote against operative paragraph 1,

because he considered that only the 1961 and 1963 Vienna Conventions conferred

jurisdiction on the Court in the present case.

He also voted against paragraphs 2 and 5, because, in his view, the Court, at the present

stage of the proceedings and considering the concomitant circumstances, could not make

any ruling as to the responsibility of the Government of the Islamic Republic of Iran.

On the other hand, Judge Tarazi voted in favour of paragraph 6, because he considered

that, in the event of any reparations being owed, they should be determined and assessed

by the International Court of Justice; it was not admissible for them to be the subject of

proceedings in courts of domestic jurisdiction.

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US v. IRAN (TEHERAN EMBASSY CASE) – “embassy siege / approval / militants became

agents of state” The Iranian state was under obligation to protect the premises of the

mission, and breached the same in failing to protect and secure the premises and for even

tolerating the actions of the student militants. Instead, expressions of approval for the

attacks were made by Ayatollah and Iranian officers. The Iranian government gave its

consent to the attack upon the diplomatic premises, violation of its dignity, and the

detention of diplomats; thus the perpetrators in effect became “agents” of the Iranian

Government. Iran is therefore internationally responsible.

SHORT V. USA (USA V. IRAN)

SHORT v. IRAN – “revolutionary government / no proof of wrongful acts as cause for

injury” Short was an American working in Iran. He was ordered to be sent home by the US

when the Islamic Revolutionary Government took over. Now he claims that the successor

government should be held liable for the acts of the revolutionary movement w/c

established it – and that he was expelled from the country contrary to IL. He relies on the

anti-American statements. Iran is not liable. Short failed to prove that his departure from

Iran was due to the wrongful act of its government.

------------

Background

About 45,000 United States nationals left Iran during the four month period (October 1978

through February 1979) of the Islamic revolution in that country which was accompanied

by intense anti-United States sentiment and acts of violence against United States owned

property and United States nationals.

The present case, which was in the nature of a test case, was filed by the United States

against Iran in respect of the alleged “wrongful expulsion” from Iran of a United States

national, Alfred Short, with consequential loss of personal property and employment

income.

Mr Short commenced employment with a United States owned company in Iran in April

1977. He alleged that “following the onset of the Islamic revolution in late 1978 and the

subsequent declaration of martial law he was virtually under house arrest, living with

progressively increasing stress caused by vehement threats against the lives of

Americans, shooting in the streets, firebombing of American homes and automobiles, and

other violence propagated by revolutionaries against Americans”. Mr Short was evacuatedin haste from Iran by the United States Air Force in February 1979.



The Tribunal …

29. … [T]he preliminary issue that has to be decided is whether the facts invoked by the

Claimant [Mr Short] as having caused his departure from Iran are attributable to Iran,

either directly, or indirectly as a result of its deliberate policies, or whether they reveal a

lack of due diligence in meeting Iran’s international duties towards the Claimant.

30. In the classical case the expulsion of an alien is effected by a legal order issued by the

State authorities obligating the alien to leave the host country or otherwise be forcibly

removed. An expulsion can also be the result of a forcible action of the police or other

state organ not authorized by a legal order issued by the competent authorities. Finally, an

alien may also be considered wrongfully expelled in the absence of any order or specific

state action, when, in the circumstances of the case, the alien could reasonably be

regarded as having no other choice than to leave and when the acts leading to his

departure were attributable to the State. The common thread is that the international

responsibility of a State can be engaged where the circumstances or events causing the

departure of the alien are attributable to it. On the other hand, to assume that all the

departures of all aliens of a certain nationality from a country, during a certain period of

political turmoil, would be attributable to the State, unless the State is able to demonstrate

the contrary, would contradict the principles and rules of the international responsibility of

States.

31. In examining whether the Claimant’s departure from Iran was due to acts orcircumstances attributable to the Respondent [Iran], the Tribunal has to take into account

the existence of a revolutionary situation in Iran during the period under consideration.

The reports that many thousands of Iranians lost their lives in the course of these

revolutionary events is an indicator of the magnitude of the turmoil associated with the

Revolution. As a result of this turmoil, the successive governments appointed by the Shah

lost control over events and the last of them was eventually overthrown. While the

revolution was directed against the Shah’s regime the revolutionaries believed that the

American government was responsible for maintaining him in power. The strong anti-

American sentiment documented in the Claimant’s Factual Memorial was the consequence

of this belief, and gave to Americans present in Iran reason to believe that their lives were

in danger. This also explains why the American Ambassador in Tehran and U.S.

employers in Iran strongly urged dependants of U.S. employees and other non-essential

Americans to leave Iran. …

33. Where a revolution leads to the establishment of a new government the State is held

responsible for the acts of the overthrown government insofar as the latter maintained

control of the situation. The successor government is also held responsible for the actsimputable to the revolutionary movement which established it, even if those acts occurred

prior to its establishment, as a consequence of the continuity existing between the new



organization of the State and the organization of the revolutionary movement. … These

rules are of decisive importance in the present Case, since the Claimant departed from

Iran on 8 February 1979, a few days before the proclamation on 11 February of the Islamic

Revolutionary Government. At that time, the revolutionary movement had not yet been

able to establish control over any part of Iranian territory, and the Government had

demonstrated its loss of control.

34. The Claimant relies on acts committed by revolutionaries and seeks to attribute

responsibility for their acts to the government that was established following the success of

the Revolution. He is unable, however, to identify any agent of the revolutionary

movement, the actions of which compelled him to leave Iran. The acts of supporters of a

revolution cannot be attributed to the government following the success of the revolution

just as the acts of supporters of an existing government are not attributable to the

government. This was clearly recalled by the International Court of Justice in United

States Diplomatic and Consular Staff in Tehran (United States v. Iran), 1980 ICJ 3, 29,

para 58 (Judgment of 24 May 1980). The Court found that the conduct of the militants

when they executed their attack on the U.S. Embassy and seized its personnel as

hostages “might be considered as itself directly imputable to the Iranian State only if it were

established that, in fact, on the occasion in question, the militants acted on behalf of the

State, having been charged by some competent organ of the Iranian State to carry out a

specific operation”.

35. The Claimant’s reliance on the declarations made by the leader of the Revolution,Ayatollah Khomeini, and other spokesmen of the revolutionary movement, also lack the

essential ingredient as being the cause for the Claimant’s departure in circumstances

amounting to an expulsion. While these statements are of anti-foreign and in particular

anti-American sentiment, the Tribunal notes that these pronouncements were of a general

nature and did not specify that Americans should be expelled en masse. On this issue

also it is worthwhile to quote the International Court of Justice in the judgment just referred

to. The Court recognized that prior to the attack against the U.S. Embassy “the Ayatollah

Khomeini, the religious leader of the country, had made several public declarations

inveighing against the United States as responsible for all his country’s problems”. The

Court went on to quote a specific message of the Ayatollah Khomeini declaring on 1

November 1979 that it was “up to the dear pupils, students and theological students to

expand with all their might their attacks against the United States and Israel, so they may

force the United States to return the deposed and criminal Shah, and to condemn this

great plot”. 1980 ICJ at 29, para 59. Nevertheless, the Court found that “it would be going

too far to interpret such general declarations … as amounting to an authorization from the

State to undertake the specific operation of invading and seizing the United States

Embassy”. Id. At 30, para 59. Similarly, it cannot be said that the declarations referred toby the Claimant amounted to an authorization to revolutionaries to act in such a way that

the Claimant should be forced to leave Iran forthwith. Nor is there any evidence that any



action prompted by such statements was the cause of the Claimant’s decision to leave

Iran. In these circumstances, the Tribunal is of the view that the Claimant has failed to

prove that his departure from Iran can be imputed to the wrongful conduct of Iran. The

claim is therefore dismissed.

HOME MISSIONARY SOCIETY CASE

Facts:

Great Britain imposed the collection of a tax on the natives under its Protectorate, Sierra

Leone. This was known as the “hut tax” which induced a serious and widespread revole in

the Ronietta district.

During the course of the rebellion the Home Missionary Society’s propert were either

destroyed or damaged and some of its members were killed.

The US is now contending that Great Britain knew that the imposition of the tax would

anger the natives and failed to take

the proper measures to maintain order and to protect the lives and property of Home

Missionary. US Govt claimed that GB was liable to pay compensation

Issue:

W/N GB is liable for the destruction caused by the rebellion:

Held:

NO, it was not established that the imposition of the Hut Tax was the effective cause of the

Rebellion. Such taxes were generally used in colonial administration but was the USUALPRACTICE in the African countries.

Also there was an assumption of risk on the part of the Society and there was no failure of

duty on the part of GB

GB was entitled to exercise such imposition of taxes as a legitimate exercise of its

sovereignty. It is established in the principles of international law that no govt can be held

responsible for the act of rebellious bodies of men committed in violation of such

government’s authority. Absent of breach of good faith or negligence on the part of GB in

the suppression of such insurrection, the claim is hereford DISMISSED.

---------------

HOME MISSIONARY SOCIETY CLAIM – “hut tax / legal act / barbarous reaction of

natives / not liable” Britain imposed a “hut tax” upon the natives of its Protectorate Sierra

Leone, w/c enraged the natives who then revolted. Over the course of the revolt, the

religious mission of US nationality was attacked, and its members killed. US claims that

Britain should be liable to it for the deaths of its nationals. Britain is not liable. The

imposition of the hut tax was legitimate and w/in the rights and prerogatives as an exerciseof its sovereignty. Britain acted in good faith. It cannot be held liable for the barbarous

conduct of the natives.



US (CHATTIN) V. MEXICO

Facts:

B.E. Chattin was an American citizen working for the Southern Pacific Railroad Company

of Mexico as a passenger conductor. He was arrested for allegedly pocketing money from

passengers instead of remitting them to the company.

Thereafter, he proceeded to trial and was found guilty. He was imprisoned but was able to

escape when there was rebellion. He returned to the US and now claims damages against

Mexican state for having been deprived of due process and being treated inhumanely.

Issue:

W/N Mexico is liable to pay $50,000 as damages to Chattin

Held:

Yes

Evidence and court records showed that Chattin was

indeed deprived of due process. When he went to trial, he was not allowed to confront his

accusers. The accusers only had to submit anonymous testimony. Furthermore, his trial

was delayed. He had been imprisoned for a few months before he saw the inside of the

courtroom. Lastly, the trial had only lasted like a day.

Mexico is liable because it is the state's responsibility to ensure that its judiciary keeps up

with the international standards.

-----------

US v. MEXICO – “irregular court proceedings / damages” Chattin, an American, was

working in a Mexico Railroad Company. He was arrested. There were no proper

investigations, no appropriate confrontation w/ the witnesses, he was not properly informed

of the charges, there were undue delays in the proceedings, and the trial was a mere

formality. He was able to escape and proceed to the US when the doors of the jail were

flung open during a revolution. Now he claims damages from Mexico. This is a case direct

government responsibility. A grave injustice has been committed by the Mexico judiciary.

The proceedings were obviously irregular and there was a complete absence of

seriousness on the part of the court. That being the case, it would be proper to allow

damages in the sum of $5,000.

Note: But simple errors of judgment w/c do not result to manifest injustice do not constitute

a denial of justice as to warrant the above grant of damages. What can bring about state

responsibility are unwarranted delays or obstruction of access to courts, gross deficiency in

the administration of remedies, failure to provide those guarantees generally accepted as

indispensable to the proper administration of justice, or manifestly unjust judgments.

PANEVEZYS-SALUDTISKIS CASE (ESTONIA V. LITHUANIA)



The test of right of claim by a state is the bond of nationality which existed at the time the

injury occurred. It is also an established rule that exhaustion of remedies afforded by

municipal law must be availed of except if there is an ineffective remedy

Facts:

The First Company was a railway company in Russia. When the Bolshevist movement took

over the government, it sequestered private property throughout the country including the

First Company Railway. The Lithuanian Government (newly independent state) took over

the Panevezys railway formerly owned by First Company. Then by virtue of the Treaty of

Tartu, Russia renounced certain properties and enterprises to Estonia – and this included

First Company, w/c was later renamed Esimene. Now the Board of Esimene brought a

claim for compensation against the Lithuanian government for the taking of the Panevezys

Railway. The Lithuanian Government through the council of state refused to compensate.

Now Estonia brings a claim on behalf of Esimene.

Issue:

W/N the case can prosper

Held:

No.

First Estonia must prove that at the time of the alleged injury, Esimene was possessed of

Estonian nationality. For this purpose, the Treaty of Tartu would have to be examined.

Second, Lithuania avers that Estonia failed to exhaust local remedies afforded under

municipal law.

This contention is sustained.True that there is no need for resort to municipal courts if the courts have no jurisdiction or

if the exercise would be futile. Whether or not the local courts have jurisdiction is

addressed to the sound discretion of the local tribunals. Besides, property rights are

generally governed by municipal laws. In this case, Estonia has not even commenced any

action in the municipal courts; that being the case, the case should be dismissed.

---------

PANEVEZYS – SALDUTISKIS RAILWAY CASE – “railways / nationality at time of injury /

local remedies”







claim for compensation against the Lithuanian government for the taking of the PanevezysRailway. The Lithuanian Government through the council of state refused to compensate.

Now Estonia brings a claim on behalf of Esimene. Can the case prosper?





Second, Lithuania avers that Estonia failed to exhaust local remedies afforded under

municipal law. This contention is sustained. True that there is no need for resort to

municipal courts if the courts have no jurisdiction or if the exercise would be futile. Whether

or not the local courts have jurisdiction is addressed to the sound discretion of the local

tribunals. Besides, property rights are generally governed by municipal laws. In this case,

Estonia has not even commenced any action in the municipal courts; that being the case,

the case should be dismissed.

NOTTEBOHM CASE (LIECHTENSTEIN V. GUATEMALA)

The naturalisation of Nottebohm under Liechtenstein law will not be sufficient to allow a

claim in his behalf.

It is shown that Nottebohm was a former German national who has resided in Guatemala

for more than 30 years since 1905. It was only in October 1939, after the opening of WW2

that he submitted an application for naturalisation.

This was an obvious attempt to enable him to substitute for his status as a national of a

belligerent German State that of a national of a neutral Liechtenstein and evade

proceedings against him and his property

interests.He continued to stay in Guatemal until his removal as a result of war measures in 1943. He

attempted to return to Guatemal but was refused, for which reason he finally went to

Liechtenstein in 1946.

The court held that in cases of dual nationality, where the question arose with regard to the

exercise of protection, the real and effective nationality test has been applied

Facts:

Nottebohm was born in Germany, and was a German citizen, although he lived in

Guatemala since 1903, and conducted a prosperous business there, but never became a

citizen of Guatemala.

In 1939, he applied to become a citizen of Liechtenstein.

The application was approved even though a requirement was that he be in residence

there for at least 3 years, but there was an exception and he became a citizen of

Liechtenstein.

When he tried to re-enter Guatemala in 1943, he was refused entry (probably because of

his original German citizenship and because of WWII). He was later extradited to the U.S.,

where he was held at an internment camp until the end of the war. All his possessions in

Guatemala were confiscated. After his release, he lived out the rest of his life inLiechtenstein.



Liechtenstein offered Nottebohm protection against the government of Guatemala and

sued Guatemala in the International Court of Justice. Basically, Liechtenstein is saying that

because of Nottebohm’s naturalisation, Liechtenstein is entitled to claim from Guatemala in

his behalf.

However, the government of Guatemala argued that Nottebohm did not gain Liechtenstein

citizenship for the purposes of international law.

Issue:

W/N Liechtenstein can sue on behalf of Nottebohm - No

Held:

No

Preference is always given to the real and effective nationality. There must be factual ties

between the person and the state – and this may be established by several factors such as

residence, family ties, the center of his interest, etc. He did not even change his permanent

residence. Guatemala, from the beginning, clearly repudiated the acquisition by Nottebohm

of the nationality of Liechtenstein.

True that in IL, each state may lay down rules in conferring its citizenship; but in order to be

invoked against another state, nationality must correspond to the factual situation – such

as the social fact of attachment, or a genuine connection of existence, sentiments, and

interests. These facts are completely missing.

The only reason why Nottebohm went to Liechtenstein was because Guatemala refused to

admit him. His only purpose for acquiring nationality is to substitute for his status as a

national of a belligerent (Germany) that of a neutral state for the purpose of bringing his

claims.

Therefore, his claim should be dismissed.

--------

HE NOTTEBOHM CASE – “nationality / conformity with factual situation” Nottebohm was a

German national residing in Guatemala. He left the country and proceeded to

Liechtenstein for the purpose of acquiring the latter’s nationality through naturalization. He

was granted naturalization despite the fact that he has stayed there for a short period of

time only. Now he returned to Guatemala and brought a claim against the Guatemalan

Government through the intervention of Liechtenstein. Guatemala objected and refused to

recognize the right of Liechtenstein to bring a suit in his behalf. Is the claim by

Liechtenstein in behalf of Nottebohm admissible? In this case no.




residence. Guatemala, from the beginning, clearly repudiated the acquisition by Nottebohmof the nationality of Liechtenstein. True that in IL, each state may lay down rules in

conferring its citizenship; but in order to be invoked against another state, nationality must



correspond to the factual situation – such as the social fact of attachment, or a genuine

connection of existence, sentiments, and interests. These facts are completely missing.



national of a belligerent (Germany) that of a neutral state for the purpose of bringing his

claims. Therefore, his claim should be dismissed.

BARCELONA TRACTION LIGHT AND POWER CO. CASE (BELGIUM V. SPAIN)

In determining nationality of a corporation, the place of incorporation and the location of

the registered officer are material elements

It was found that Barcelona Traction was incorporated under Canadian law and had its

registered office in Canada. Belgium did not have the capacity to espouse the claim of

Belgian shareholders in the company.

Facts:

Barcelona Traction was a corporation organized under the laws of Canada where is had its

principal office. Several Belgian nationals held significant shares therein. It issued several

bonds secured by trust deeds funded by its subsidiary corporations located in Spain. The

Spanish government refused to authorize transfer of foreign currency, thus disabling

Barcelona from meeting its obligations. Spain thereafter declared the corporation bankrupt

and ordered the seizure of the assets of its subsidiaries in Spain – causing prejudice to the

shareholders, many of w/c were Belgian. Barcelona Traction was also later on declared

bankrupt under Canadian Law. Now, Belgium brings an action in behalf of its nationals(shareholders) claiming reparations due to the conduct of the Spanish authorities

(allegedly contrary to IL) leading to damage to its nationals.

Issue:

W/N Belgium has standing against Spain - No

Held:

No

Municipal law principles on corporate law were applied. It is the corporation, as a separate

entity from its stockholders, whose rights were violated. The interests of the shareholder

may have been affected, but that doesn’t mean that they have a right to bring the action –

unless for exceptional circumstances. The nationality of the corporation is Canadian, not

Belgian; as it is in Canada that it was incorporated and maintains its principal office. It is w/

Canada that the corporation shares its “genuine connection” even if it engaged in business

in other countries. That being the case, it is Canada, not Belgium, that has the right to

bring the action – and only in behalf of the corporation.

Note: According to the commentary of Herbert Briggs, the jus standi of one state cannot

arise from the mere lack of jus standi of another state; there must exist some legal basis

for an international claim beyond a mere indirect injury to economic interests.

---------



BARCELONA TRACTION CASE – “separate entity / nationality of corporation followed”








bankrupt under Canadian Law. Now, Belgium brings an action in behalf of its nationals

(shareholders) claiming reparations due to the conduct of the Spanish authorities











arise form the mere lack of jus standi of another state; there must exist some legal basis


DIALLO CASE (GUINEA V. CONGO)

Brief Fact Summary. A state responsibility, diplomatic protection case on behalf of its

national, Diallo, was filed by the Republic of Guinea (Guinea) (P) against the Democratic

Republic of Congo (D.R.C.) (D) for allegedly violating Diallo’s right; however, Guinea’s (P)

claims were contended by the D.R.C (D) as inadmissible because local remedies had not

been exhausted.

Synopsis of Rule of Law. As a matter of grace, the possibility of reconsideration by an

administrative authority of an administrative decision does not constitute a local remedy

that must be exhausted before the decision can be challenged in an international

proceeding.

Facts. A state responsibility, diplomatic protection case was filed by Guinea (P) on behalf

of its national, Diallo, against the D.R.C. (D) in the International Court of Justice. Guinea’s(P) suit was based on the allegation that Diallo, who had resided in D.R.C. for 32 years,

had been arrested and imprisoned without trial by the defendant’s authorities, detained in



violation of his fundamental human rights, and his investments, property, and businesses

unlawfully expropriated.

The D.R.C (D) however expelled Diallo by refusing him entry into the country after he had

in local proceedings, unsuccessfully attempted to recover the sums owed him by the

D.R.C’s (D) companies. The “refusal of entry” is not appealable under the D.R.C.’s (D) law.

Based on these allegations, Guinea (P) concluded that the treatment melted out on Diallo,

contravened international law for which the D.R.C. (D) was responsible. On their part, the

D.R.C. (D) contended that the allegations were not admissible on the premise that local

remedies had not been exhausted including the reconsideration by its Prime Minister. So,

the requirement for the exercise of diplomatic protection which includes exhaustion of local

remedies was not met by Diallo.

Issue. As a matter of grace, can reconsideration by an administrative authority of an

administrative decision constitute a local remedy which must be exhausted before the

decision can be challenged in an international proceeding?

Held. (Judge not stated in casebook excerpt). No. As a matter of grace, the possibility of

reconsideration by an administrative authority of an administrative decision does not

constitute a local remedy that must be exhausted before the decision can be challenged in

an international proceeding. The principle that all local remedies must be exhausted before

international proceedings maybe instituted is a well enshrined rule of customary

international law that provides the state against whom the claim is made the opportunity toredress any wrongs by its own means and within the framework of its own legal system.

Legal and administrative remedies must be exhausted but administrative remedies can

only be considered for purposes of the local rule if they are aimed at vindicating a right and

not at obtaining a favor, unless they constitute an essential prerequisite for the admissibility

of subsequent contentious proceedings. In this case, the possibility of having the Prime

Minister, who holds the administrative authority, to retract his decision as a matter of grace

does not constitute a local remedy to be exhausted. The D.R.C.’s (D) objection to the

expulsion claim must therefore be dismissed because it failed to show that it provided that

effective remedies were exhausted.

Discussion. The rule at issue in this case which is “the rule of local remedies”, originally

developed in the area of diplomatic protection has been extended to the area of human

rights. It is primarily designed to ensure respect for the sovereignty of the host state, which

is allowed to resolve the dispute by its own means before international mechanisms are

invoked.

NICARAGUA CASE (MERITS) (NICARAGUA V. US)

http://www.icj-cij.org/docket/files/70/6505.pdf (SUMMARY)

http://www.icj-cij.org/docket/files/70/6505.pdf





----------

Facts: Niacragua filed a case against the US claiming that it was interfering in its local

political affairs by means of military and covert operations. One of their claims is that the

US has breached its obligations under customary international law by such operations, by

its intervention in its affairs, by entering its territory, etc.

Doctrine: In order to deduce the existence of customary rules, it is sufficient that the

conduct of states should, in general, be consistent with such rules, and that instances of

state conduct inconsistent with a given rule shall be treated as a breach, not as an

indication of the recognition of a new rule

---------------

Facts:

The US made an Optional Clause Declaration with a reservation that

this declaration shall remain in force for a period of five years and thereafter until the

expiration of six months after notice may be given to terminate this declaration

When it became clear that its dispute with Nicaragua would be placed before the ICJ, the

US notified the UN Sec Gen that

the aforesaid declaration shall not apply to disputes with any Central American State or

arising out of or related to events in Central America, any of which disputes shall be settledin such manner as the parties to them may agree.

It appears that Nicaragua made an earlier declaration under the Statute of the PCIJ to the

effect that it was accepting the same obligation (obligation under the Optional Clause =

consenting to the Optional Clause of the US)

Held:

ICJ has jurisdiction over the case despite the notification made by the US.

The Court points out that the most important question relating to the effect of the 1984

notification is whether the United States was free to disregard the six months’ notice clause

which, freely and by its own choice, it has appended to its declaration, in spite of the

obligation it has entered into vis-a-vis other States which have made such a declaration.

The Court said that since the Nicaraguan declaration had no time limit, Nicaragua and US

— by its Optional Clause — have submitted to ICJ Jurisdiction.

Nicaragua can invoke the six months’ notice against it, not on the basis of reciprocity, but

because it is an undertaking which is an integral part of the instrument that contains it. The

1984 notification cannot therefore override the obligation of the United States to submit to

the jurisdiction of the Court vis-a- vis Nicaragua.

----------





FACTS:

In 1979, the socialist FSLN movement took power after an uprising against the dictatorship

of Somoza in Nicaragua. Opposed to the socialist FSLN, the Carter administration moved

quickly to support the Somocistas with financial and material aid. When Ronald Reagan

took office, he augmented the direct support to an FSLN group, called the Contras, which

included factions loyal to the former dictatorship. When Congress prohibited further

funding to the Contras, Reagan continued the funding through arms sales that were also

prohibited by Congress.

Nicaragua brought action before the ICJ alleging that the US had violated international law

by supporting the Contras in their rebellion against the Nicaraguan government and by

mining Nicaragua's harbors.

The U.S. argued that its actions were "primarily for the benefit of El Salvador, and to help it

to respond to an alleged armed attack by Nicaragua, that the United States claims to be

exercising a right of collective self-defense, which it regards as a justification of its own

conduct towards Nicaragua. El Salvador joined the U.S. in their Declaration of Intervention

which it submitted on 15 August 1984, where it alleged itself the victim of an armed attack

by Nicaragua, and that it had asked the United States to exercise for its benefit the right of

collective self-defense."

ISSUE:

Did the US breach international law with its Military and Paramilitary Activities in and

Against Nicaragua?

HELD:

YES. The court found evidence of an arms flow between Nicaragua and insurgents in El

Salvador between 1979-81. However, there was not enough evidence to show that the

Nicaraguan government was imputable for this or that the US response was proportional

as there have been no reported cases of Nicaraguan armed intervention against the United

States.

The court also found that certain transborder incursions into the territory of Guatemala and

Costa Rica, in 1982, 1983 and 1984, were imputable to the Government of Nicaragua.

However, neither Guatemala nor Costa Rica had made any request for US intervention; El

Salvador did in 1984, well after the US had intervened unilaterally.

"As regards El Salvador, the Court considers that in customary international law the

provision of arms to the opposition in another State does not constitute an armed attack on

that State. As regards Honduras and Costa Rica, the Court states that, in the absence ofsufficient information as to the transborder incursions into the territory of those two States

from Nicaragua, it is difficult to decide whether they amount, singly or collectively, to an



armed attack by Nicaragua. The Court finds that neither these incursions nor the alleged

supply of arms may be relied on as justifying the exercise of the right of collective self-

defense."

THE CAROLINE CASE

A group of Canadianrebels, led byWilliam Lyon Mackenzie, seeking a Canadian republic,

fled to the United States after leading the failedUpper Canada Rebellion inUpper Canada

(nowOntario). They took refuge onNavy Island on the Canadian side of theNiagara River,

which separates the two countries (between Ontario andNew York) and declared

themselves theRepublic of Canada under MacKenzie's "general" Rensselaer Van

Rensselaer (nephew of GeneralStephen Van Rensselaer). American sympathizers

supplied them with money, provisions, and arms via the steamboat SS Caroline.

On December 29, 1837, Canadian loyalist ColonelSir Allan MacNab and Captain Andrew

Drew of the Royal Navy commanding a party of militia, acting on information and guidance

fromAlexander McLeod that the vessel belonged to Mackenzie, crossed the international

boundary and seized the Caroline, chased off the crew, towed her into the current, set her

afire, and cast her adrift overNiagara Falls, after killing one black American named Amos

Durfee in the process. His body was later exhibited in front of a recruiting tavern inBuffalo,

New York.

“

Those of our fellow citizens...single-handed and alone, left our territory and united

themselves with a foreign power, have violated no law...they have done no more than hasbeen done again and again by the people of every nation. Your own recollections of history

will furnish your minds with hundreds of examples. The Swiss nation have, for hundreds of

years, fed all the armies of Europe; and who ever thought of holding them responsible for

it? They did no more than AdmiralLord Cochrane did in taking part with South America.

They did no more thanLord Byron did, who gave his life to aid the Greeks in breaking the

chains of Turkish bondage. They did no more thanLafayette. Gentlemen, I am not

deviating from the case further than is necessary to remove the just odium which has been

unjustly thrown upon those who joined the insurgents.

”

— Willis Hall,Attorney General in 1841 on the Caroline Affair.

US newspapers falsely reported "the death of twenty-two of her crew" when in fact, only

Durfee was killed. Public opinion across the United States was outraged against the

British. PresidentMartin Van Buren protested strongly to London, but was ignored.

On May 29, 1838, 13 raiders, mostly Canadian and American refugees from the 1837

rebellion, led by AmericanWilliam "Pirate Bill" Johnston,[1] retaliated by capturing, looting,

and burning the British steamer Sir Robert Peel while she was in U.S. waters. President

Martin Van Buren sent GeneralWinfield Scott to prevent further incursions into Canada.However, there were several other attacks, the biggest being theBattle of the Windmill in

November 1838.

https://en.wikipedia.org/wiki/Rebellion

https://en.wikipedia.org/wiki/William_Lyon_Mackenzie

https://en.wikipedia.org/wiki/Upper_Canada_Rebellion


https://en.wikipedia.org/wiki/Upper_Canada

https://en.wikipedia.org/wiki/Ontario

https://en.wikipedia.org/wiki/Navy_Island

https://en.wikipedia.org/wiki/Niagara_River

https://en.wikipedia.org/wiki/New_York

https://en.wikipedia.org/wiki/Republic_of_Canada

https://en.wikipedia.org/wiki/Stephen_Van_Rensselaer_III

https://en.wikipedia.org/wiki/Allan_MacNab

https://en.wikipedia.org/wiki/Alexander_McLeod

https://en.wikipedia.org/wiki/Niagara_Falls

https://en.wikipedia.org/wiki/Buffalo,_New_York


https://en.wikipedia.org/wiki/Thomas_Cochrane,_10th_Earl_of_Dundonald

https://en.wikipedia.org/wiki/Lord_Byron

https://en.wikipedia.org/wiki/Gilbert_du_Motier,_marquis_de_Lafayette

https://en.wikipedia.org/wiki/Attorney_General

https://en.wikipedia.org/wiki/Martin_Van_Buren

https://en.wikipedia.org/wiki/Bill_Johnston_(pirate)

https://en.wikipedia.org/wiki/Caroline_affair#cite_note-1


https://en.wikipedia.org/wiki/Winfield_Scott

https://en.wikipedia.org/wiki/Battle_of_the_Windmill

https://en.wikipedia.org/wiki/Rebellion

https://en.wikipedia.org/wiki/William_Lyon_Mackenzie


https://en.wikipedia.org/wiki/Upper_Canada

https://en.wikipedia.org/wiki/Ontario

https://en.wikipedia.org/wiki/Navy_Island

https://en.wikipedia.org/wiki/Niagara_River

https://en.wikipedia.org/wiki/New_York

https://en.wikipedia.org/wiki/Republic_of_Canada

https://en.wikipedia.org/wiki/Stephen_Van_Rensselaer_III

https://en.wikipedia.org/wiki/Allan_MacNab

https://en.wikipedia.org/wiki/Alexander_McLeod

https://en.wikipedia.org/wiki/Niagara_Falls



https://en.wikipedia.org/wiki/Thomas_Cochrane,_10th_Earl_of_Dundonald

https://en.wikipedia.org/wiki/Lord_Byron

https://en.wikipedia.org/wiki/Gilbert_du_Motier,_marquis_de_Lafayette

https://en.wikipedia.org/wiki/Attorney_General


https://en.wikipedia.org/wiki/Bill_Johnston_(pirate)

https://en.wikipedia.org/wiki/Caroline_affair#cite_note-1


https://en.wikipedia.org/wiki/Winfield_Scott

https://en.wikipedia.org/wiki/Battle_of_the_Windmill



Later that year, Irish-Canadian rebelBenjamin Lett murdered a loyalist, CaptainEdgeworth

Ussher, who had been involved in the incident.

The case was finally disposed of by U.S. Secretary of StateDaniel Webster andAlexander

Baring, 1st Baron Ashburton, in the course of their negotiations leading to theWebster–

Ashburton Treaty of 1842. Secretary Webster admitted that the employment of force might

have been justified by the necessity of self-defence, but denied that such necessity

existed, while Lord Ashburton, although he maintained that the circumstances afforded

excuse for what was done, apologized for the invasion of United States territory.

NOTE: This incident has been used to establish the principle of "anticipatory self-defense"

in international politics, which holds that it may be justified only in cases in which the

"necessity of that self-defense is instant, overwhelming, and leaving no choice of means,

and no moment for deliberation". This formulation is part of theCaroline test. The Caroline

affair is also now invoked frequently in the course of the dispute aroundpreemptive strike

(orpreemption doctrine)

-------------

During the insurrection in Canada in 1837 sympathetic commotions occurred at various

places in the United States, especially along the Canadian border. The Government of the

United States adopted active measures for the enforcement of the neutrality laws, but the

difficulties of the situation were increased by the course of the insurgents, who, when

defeated, sought refuge in the United States, where they endeavored to recruit their forces.In December, 1837, meetings were held in Buffalo, in the State of New York, by McKenzie

and Rolfe, the leaders in the insurrection, who made a public appeal for arms, ammunition,

and volunteers. On the 28th of the month, the United States marshal for the northern

district of New York, who had proceeded to Buffalo for the purpose of suppressing

violations of neutrality, reported that he had found 200 or 300 men, mostly from the

American side of the Niagara River, encamped on Navy Island, in Upper Canada, armed

and under the command of "General " Van Rensselaer, of Albany, and that the

encampment had received accessions till it numbered about 1,000 men, well armed. This

expedition had been organized at Buffalo after McKenzie's arrival, and warrants had been

issued for the arrest of the men, but could not be served. There was also an encampment

at Black Rock.

On the 20th of December occurred the destruction of the Caroline. This vessel was a small

steamer employed by the men at Black Rock and on Navy Island in communicating with

the mainland. According to the deposition of the master, the Caroline left Buffalo on the

29th of December for the port of Schlosser, which was also in New York. On the way he

caused a landing to be made at Black Rock and the American flag to be run up. After the

steamer left Black Rock a volley of musketry was fired at her from the Canadian side, butwithout injuring her. She then landed "a number of passengers" at Navy Island, and arrived

at Schlosser about 3 o'clock p.m. Subsequently, in the same afternoon, she made two

https://en.wikipedia.org/wiki/Benjamin_Lett

https://en.wikipedia.org/wiki/Edgeworth_Ussher


https://en.wikipedia.org/wiki/Daniel_Webster

https://en.wikipedia.org/wiki/Alexander_Baring,_1st_Baron_Ashburton


https://en.wikipedia.org/wiki/Webster%E2%80%93Ashburton_Treaty


https://en.wikipedia.org/wiki/Caroline_test

https://en.wikipedia.org/wiki/Preemptive_strike

https://en.wikipedia.org/wiki/Preemptive_war

https://en.wikipedia.org/wiki/Benjamin_Lett



https://en.wikipedia.org/wiki/Daniel_Webster





https://en.wikipedia.org/wiki/Caroline_test

https://en.wikipedia.org/wiki/Preemptive_strike

https://en.wikipedia.org/wiki/Preemptive_war



more trips to Navy Island, and returned finally to Schlosser about 6 o'clock p.m. During the

evening about 23 persons, all citizens of the United States, came on board and asked to

be permitted to "remain on board all night." At midnight about 70 or 80 armed linen

boarded the steamer and attacked the persons on board with muskets, swords, and

cutlasses. The "passengers and crew, " of whom there were in all 33, merely endeavored

to escape. After this attack the assailing force set the steamer on fire, cut her loose, and

set her adrift over the Niagara Falls. Only 21 of the persons on board had since been

found, and one of these, Amos Durfee, was killed on the dock by a musket ball. Several

others were wounded. Twelve were missing. After the Caroline was set adrift beacon lights

were seen on the Canadian side, and cheering was heard, and it was not doubted that the

assailants belonged to the British force at Chippewa. Such was the statement made by the

master. It was generally reported and believed at the time that the men said to be missing

lay wounded in the steamer, and were sent with her over the falls. It was subsequently

ascertained, however, on further investigation that of the persons on board the only ones

missing were Durfee and the cabin boy, Johnson, popularly known as "Little Billy," both of

whom were shot as they were leaving the steamer; that Van Rensselaer's forces had made

some use of Grand Island, and had fired some shots into Canada while the main forces lay

at Navy Island and before the Caroline went to Schlosser; that two persons from the

Caroline were carried by the attacking force into Canada, but were afterward set at liberty,

and that that force acted under the command of Col. A. N. MeNab, of Chippewa, who was

acting under the orders of his superior officer.

On receiving information as to this occurrence, Mr. Forsyth, who was then Secretary of

State, addressed a note to Mr. Fox, the British minister at Washington, saying that thedestruction of property and assassination of citizens of the United States on the soil of

New York, when the President was endeavoring to allay excitement and prevent any

unfortunate occurrence on the frontier, had produced "the most painful emotions of

surprise and regret," and that the incident would be made the "subject of a demand for

redress." General Scott was sent to the frontier, with letters to the governors of New York

and Vermont, requesting them to call out the militia. On the 6th of February, Mr. Fox

communicated to Mr. Forsyth a letter from Governor Head, and while avowing that the

force that destroyed the Caroline was under the command of Colonel McNab, declared

that the piratical character of the Caroline seemed to be fully established; that the ordinary

laws of the United States were not at the time enforced along the frontier, but were openly

overborne; and that the destruction of the Caroline was an act of necessary self-defense.'

On the 22d of May, 1838, Mr. Stevenson, then minister of the United States at London,

presented a demand for reparation. Its receipt was acknowledged by Lord Palmerston on

the 6th of June, with a promise of consideration.

In March, 1841, a sudden turn was given to the discussion by the arrest and imprisonment

on a charge of murder, in the State of New York, of Alexander McLeod, who had, as it

appears, while under the influence of liquor, boasted of having taken an effective part inthe destruction of the Caroline. Lord Palmerston then avowed responsibility, on the part of

Her Majesty's Government, for the destruction of the steamer, as a public act of force, in



self-defense, by persons in Her Majesty's service, and on this ground demanded McLeod's

release. McLeod was ultimately tried, and was acquitted on proof of an alibi.

There can be no doubt that the steamer Caroline (of 46 tons; 71 feet long) was being

illegally employed in aid of Van Rensselaer and his associates, the "patriots", as they

styled themselves; the expedition which destroyed the Caroline during the night of

December 29, 1837, was headed by Commander Andrew Drew, R.N., who had under him

a force of forty-five, in five boats, and who was acting under the orders of Colonel Allan

Napier McNab (House Document No. 302, 25th Congress, 2d session, serial 329, passim);

the various loci of the affair were within small compass; Schlosser, where the Caroline was

moored, was no more than a landing place and a storehouse with a tavern adjacent,

located on the right or American side of Niagara River, less than three miles above the falls

(the site of the old and then abandoned Fort Schlosser was somewhat lower down; see

ibid. and also Lossing, Pictorial Field Book of the War of 1812, 379-82, with map);

Chippawa, on the Canadian shore, lies nearly opposite, the river being there about a mile

and a half wide; just above is Navy Island (Canadian), at the mouth of Chippawa Channel,

about six hundred yards from the Canadian shore on the one side and about the same

distance from the north end of Grand Island (American) on the other (see the chart of

Upper Niagara River from Lake Erie to the Falls, War Department, Corps of Engineers,

1931, Catalogue No. 312).

The case of the Caroline was within the negotiations of Webster and Ashburton, though

not mentioned in the treaty. Notes were exchanged regarding it, which were submitted to

the Senate and form part of the published correspondence (pp. 126-38); the first, with

enclosures, was that of Webster to Ashburton of July 27, 1842; this was answered on thefollowing day; and the exchanges were concluded by the note of Webster of August 6. The

texts which follow are, for the notes of Webster, from D.S., 6 Notes to the British Legation,

246-47 (without enclosures, which are here copied respectively from ibid., 201-10, and

from Richardson, IV, 75-77) and 259-61, and for that of Ashburton, D.S., 21 Notes from the

British Legation. The result of the correspondence was to "make this subject, as a

complaint of violation of territory, the topic of no further discussion between the two

Governments".

[Mr. Webster to Lord Ashburton]

DEPARTMENT OF STATE, Washington, 27th July, 1842.

Lord Ashburton, &c, &c, &c,

MY LORD: In relation to the case of the "Caroline", which we have heretofore made the

subject of conference, I have thought it right to place in your hands an extract of a letter

from this Department to MrFox, of the 24th of April, 1841, and an extract from the message

of the President of the United States to Congress at the commencement of its present

session. These papers you have, no doubt, already seen; but they are, nevertheless, now

communicated, as such a communication is considered a ready mode of presenting the

view which this Government entertains of the destruction of that vessel.The act of which the Government of the United States complains is not to be considered as

justifiable or unjustifiable, as the question of the lawfulness or unlawfulness of the



employment in which the "Caroline" was engaged may be decided the one way or the

other. That act is of itself a wrong, and an offense to the sovereignty and the dignity of the

United States, being a violation of their soil and territory-a wrong for which, to this day, no

atonement, or even apology, has been made by Her Majesty's Government. Your Lordship

cannot but be aware that self-respect, the consciousness of independence and national

equality, and a sensitiveness to whatever may touch the honor of the country-a

sensitiveness which this Government will ever feel and ever cultivate-make this a matter of

high importance, and I must be allowed to ask for it your Lordship's grave consideration.

I have the honor to be, my Lord, your Lordship's most obedient servant,

DANl WEBSTER.

[Enclosure 1-Extract from note of April 24,1841]

The Undersigned has now to signify to Mr Fox that the Government of the United States

has not changed the opinion which it has heretofore expressed to Her Majesty's

Government, of the character of the act of destroying the " Caroline ". It does not think that

that transaction can be justified by any reasonable application or construction of the right

of self-defence under the laws of nations. It is admitted that a just right of self-defence

attaches always to nations, as well as to individuals, and is equally necessary for the

preservation of both. But the extent of this right is a question to be judged of by the

circumstances of each particular ease; and when its alleged exercise has led to the

commission of hostile acts, within the territory of a power at peace, nothing less than a

clear and absolute necessity can afford ground of justification. Not having, up to this time,

been made acquainted with the views and reasons, at length, which have led Her

Majesty's Government to think the destruction of the "Caroline" justifiable as an act of self-defence, the Undersigned, earnestly renewing the remonstrance of this Government

against the transaction, abstains, for the present, from any extended discussion of the

question. But it is deemed proper, nevertheless, not to omit, to take some notice of the

general grounds of justification, stated by Her Majesty's Government, in their instruction to

Mr Fox.

Her Majesty's Government have instructed Mr Fox to say, that they are of opinion, that the

transaction, which terminated in the destruction of the " Caroline", was a justifiable

employment of force, for the purpose of defending the British Territory from the unprovoked

attack of a band of British rebels and American pirates, who, having been "permitted" to

arm and organize themselves within the territory of the United States, had actually invaded

a portion of the territory of Her Majesty.

The President cannot suppose that Her Majesty's Government, by the use of these terms,

meant to be understood as intimating, that those acts, violating the laws of the United

States, and disturbing the peace of the British territories, were done under any degree of

countenance from this Government, or were regarded by it with indifference; or, that under

the circumstances of the case, they could have been prevented, by the ordinary course of

proceeding. Although he regrets, that by using the term "permitted", a possible inference ofthat kind might be raised, yet such an inference, the President, is willing to believe, would

be quite unjust to the intentions of the British Government.



That on a line of frontier, such as separates the United States from Her Britannic Majesty's

North American Provinces, a line long enough to divide the whole of Europe into halves,

irregularities, violences, and conflicts should sometimes occur, equally against the will of

both Governments, is certainly easily to be supposed. This may be more possible,

perhaps, in regard to the United States, without any reproach to their Government, since

their institutions entirely discourage the keeping up of large standing armies in time of

peace, and their situation happily exempts them from the necessity of maintaining such

expensive and dangerous establishments. All that can be expected, from either

Government in these cases, is good faith, a sincere desire to preserve peace and do

justice, the use of all proper means of prevention, and, that if offenses cannot,

nevertheless, be always prevented, the offenders shall still be justly punished. In all these

respects, this Government acknowledges no delinquency in the performance of its duties.

Her Majesty's Government are pleased, also, to speak of those American Citizens, who

took part with persons in Canada, engaged in an insurrection against the British

Government, as 'American pirates". The Undersigned does not admit the propriety or

justice of this designation. If citizens of the United States Started out, or were engaged in

fitting out, a military expedition from the United States, intended to act against the British

Government in Canada, they were clearly violating the laws of their own country, and

exposing themselves to the just consequences, which might be inflicted on them, if taken

within the British Dominions. But notwithstanding this, they were, certainly, not pirates; nor

does the Undersigned think that it can advance the purpose of fair and friendly discussion,

or hasten the accommodation of national difficulties so to denominate them. Their offense,

whatever it was, had no analogy to cases of piracy. Supposing all that is alleged againstthem to be true, they were taking a part in what they regarded as a civil war, and they were

taking a part on the side of the rebels. Surely, England herself has not regarded persons

thus engaged as deserving the appellation which Her Majesty's Government bestows on

these citizens of the United States.

It is quite notorious, that for the greater part of the last two centuries, subjects of the British

crown have been permitted to engage in foreign wars, both national and civil, and in the

latter in every stage of their progress; and yet it has not been imagined that England has at

any time allowed her subjects to turn pirates. Indeed in our own times, not only have

individual subjects of that crown gone abroad to engage in civil wars, but we have seen

whole regiments openly recruited, embodied, armed, and disciplined, in England, with the

avowed purpose of aiding a rebellion against a nation, with which England was at peace;

although it is true, that subsequently, an Act of Parliament was passed to prevent

transactions so nearly approaching to public war, without license from the crown [59

George III, ch. 69, July 3, 1819].

It may be said, that there is a difference between the case of a civil war, arising from a

disputed succession, or a protracted revolt of a colony against the mother country, and the

ease of the fresh outbreak, or commencement of a rebellion. The Undersigned does notdeny, that such a distinction may, for certain purposes, be deemed well founded. He

admits, that a Government, called upon to consider its own rights, interests, and duties,



when civil wars break out in other countries, may decide on all the circumstances of the

particular ease, upon its own existing stipulations, on probable results, on what its own

security requires, and on many other considerations. It may be already bound to assist one

party, or it may become bound, if it so chooses, to assist the other, and to meet the

consequences of such assistance. But whether the revolt be recent, or long continued,

they who join those concerned in it, whatever may be their offense against their own

country, or however they may be treated, if taken with arms in their hands, in the territory of

the Government, against which the standard of revolt is raised, cannot be denominated

Pirates, without departing from all ordinary use of language in the definition of offenses.. A

cause which has so foul an origin as piracy, cannot, in its progress, or by its success,

obtain a claim to any degree of respectability, or tolerance, among nations; and civil wars,

therefore, are not understood to have such a commencement.

It is well known to Mr Fox, that authorities of the highest eminence in England, living and

dead, have maintained, that the general law of nations does not forbid the citizens or

subjects of one Government, from taking part in the civil commotions of another. There is

some reason indeed, to think, that such may be the opinion of Her Majesty's Government

at the present moment.

The Undersigned has made these remarks, from the conviction that it is important to

regard established distinctions, and to view the acts and offenses of individuals in the

exactly proper light. But it is not to be inferred, that there is, on the part of this Government

any purpose of extenuating' in the slightest degree, the crimes of those persons, citizens of

the United States, who have joined in military expeditions against the British Government

in Canada. On the contrary, the President directs the Undersigned to say, that it is his fixedresolution that all such disturbers of the national peace, and violators of the laws of their

country, shall be brought to exemplary punishment. Nor will the fact, that they are

instigated and led on to these excesses, by British subjects, refugees from the Provinces,

be deemed any excuse or palliation; although it is well worthy of being remembered, that

the prime movers of these disturbances on the borders are subjects of the Queen who

come within the territories of the United States, seeking to enlist the sympathies of their

citizens, by all the motives which they are able to address to them, on account of

grievances, real or imaginary. There is no reason to believe that the design of any hostile

movement from the United States against Canada, has commenced with citizens of the

United States. The true origin of such purposes and such enterprises is on the other side

of the line. But the President7s resolution to prevent these transgressions of the laws is

not, on that account, the less strong. It is taken, not only in conformity to his duty under the

provisions of existing laws, but in full consonance with the established principles and

practice of this Government.

The Government of the United States has not, from the first, fallen into the doubts,

elsewhere entertained, of the true extent of the duties of neutrality. It has held, that

however it may have been in less enlightened ages, the just interpretation of the modernlaw of Nations is, that neutral States are bound to be strictly neutral; and that it is a

manifest and gross impropriety for individuals to engage in the civil conflicts of other



States, and thus to be at war, while their Government is at peace. War and peace are high

national relations, which can properly be established or changed only by nations

themselves.

The United States have thought, also, that the salutary doctrine of nonintervention by one

Nation with the affairs of others is liable to be essentially impaired, if, while Government

refrains from interference, interference is still allowed to its subjects, individually or in

masses. It may happen indeed, that persons choose to leave their country, emigrate to

other regions, and settle themselves on uncultivated lands, in territories belonging to other

States. This cannot be prevented by Governments, which allow the emigration of their

subjects and citizens; and such persons, having voluntarily abandoned their own country,

have no longer claim to its protection, nor is it longer responsible for their acts. Such

eases, therefore, if they occur, show no abandonment of the duty of neutrality

The Government of the United States has not considered it as sufficient, to confine the

duties of neutrality, and non-interference, to the case of Governments, whose territories lie

adjacent to each other. The application of the principle may be more necessary in such

eases, but the principle itself, they regard as being the same, if those territories be divided

by half the globe. The rule is founded in the impropriety and danger, of allowing individuals

to make war on their own authority, or, by mingling themselves in the belligerent operations

of other Nations, to run the hazard of counteracting the policy, or embroiling the relations,

of their own Government. And the United States have been the first, among civilized

Nations, to enforce the observance of this just rule of neutrality and peace, by special and

adequate legal enactments. In the infancy of this Government, on the breaking out of the

European wars, which had their origin in the French Revolution, Congress passed lawswith severe penalties, for preventing the citizens of the United States from taking part in

those hostilities.

By these laws, it prescribed to the citizens of the United States what it understood to be

their duty, as neutrals, by the law of Nations, and the duty, also, which they owed to the

interest and honor of their own country.

At a subsequent period, when the American Colonies of a European Power took up arms

against their Sovereign, not diverted from the established system of the Government by

any temporary considerations, not swerved from its sense of justice and of duty, by any

sympathies which it might naturally feel for one of the Parties, did not hesitate, also, to

pass acts applicable to the case of Colonial insurrection and civil war. And these provisions

of law have been continued, revised, amended, and are in fun force at the present

moment. Nor have they been a dead letter, as it is wed known, that exemplary

punishments have been inflected on those who have transgressed them. It is known,

indeed, that heavy penalties have fallen on individuals, citizens of the United States,

engaged in this very disturbance in Canada, with which the destruction of the " Caroline "

was connected. And it is in Mr Fox's knowledge also, that the act of Congress of March

10'§ 1838, was passed for the precise purpose of more effectually restraining militaryenterprises, from the United States into the British Provinces, by authorizing the use of the

most sure, and decisive preventive means. The Undersigned may add, that it stands on



the admission of very high British authority, that during the recent Canadian troubles,

although bodies of adventurers appeared on the border, making it necessary for the people

of Canada to keep themselves in a state prepared for self-defence, yet that these

adventurers were acting by no means in accordance with the feeling of the great mass of

the American People, or of the Government of the United States. [The neutrality laws of the

United States to which reference is made in this and preceding paragraphs are cited and

discussed in Moore, Digest, VII, 1010-14; for the act of March 10, 1838, see 5 Statutes at

Large, 212-14.]

This Government, therefore, not only holds itself above reproach in every thing respecting

the preservation of neutrality, the observance of the principle of non-intervention, and the

strictest conformity, in these respects, to the rules of international law, but it doubts not that

the world will do it the justice to acknowledge that it has set an example, not unfit to be

followed by others, and that by its steady legislation on this most important subject, it has

done something to promote peace and good neighborhood among Nations, and to

advance the civilisation of mankind.

The Undersigned trusts, that when Her Britannic Majesty's Government shall present the

grounds at length, on which they justify the local authorities of Canada, in attacking and

destroying the " Caroline ", they win consider, that the laws of the United States are such

as the Undersigned has now represented them, and that the Government of the United

States has always manifested a sincere disposition to see those laws effeetuaUy and

impartially administered. If there have been eases in which individuals, justly obnoxious to

punishment, have escaped, this is no more than happens in regard to other laws.

Under these circumstances, and under those immediately connected with the transactionitself, it will be for Her Majesty's Government to show, upon what state of facts, and what

rules of national law, the destruction of the "Caroline" is to be defended. It will be for that

Government to show a necessity of self-defence, instant, overwhelming, leaving no choice

of means, and no moment for deliberation. It will be for it to show, also, that the local

authorities of Canada,- even supposing the necessity of the moment authorized them to

enter the territories of the United States at all,-did nothing unreasonable or excessive;

since the act justified by the necessity of self-defence, must be limited by that necessity,

and kept clearly within it. It must be strewn that admonition or remonstrance to the persons

on board the "Caroline" was impracticable, or would have been unavailing; it must be

strewn that daylight could not be waited for; that there could be no attempt at

discrimination, between the innocent and the guilty; that it would not have been enough to

seize and detain the vessel; but that there was a necessity, present and inevitable, for

attacking her, in the darkness of the night, while moored to the shore, and while unarmed

men were asleep on board, killing some, and wounding others, and then drawing her into

the current, above the cataract, setting her on fire, and, careless to know whether there

might not be in her the innocent with the guilty, or the living with the dead, committing her

to a fate, which fills the imagination with horror. A necessity for an this, the Government ofthe United States cannot believe to have existed.



All will see, that if such things be avowed to occur, they must lead to bloody and

exasperated war; and when an individual comes into the United States from Canada, and

to the very place, on which this drama was performed, and there chooses to make public

and vainglorious boast of the part he acted in it, it is hardly wonderful that great excitement

should be created, and some degree of commotion arise.

This Republic does not wish to disturb the tranquillity of the world. Its object is peace, its

policy, peace. It seeks no aggrandizement by foreign conquest, because it knows that no

foreign acquisitions could augment its power and importance so rapidly as they are already

advancing, by its own natural growth, under the propitious circumstances of its situation.

But it cannot admit, that its Government has not both the win and the power to preserve its

own neutrality, and to enforce the observance of its own laws upon its own citizens. It is

jealous of its rights, and among others, and most especially, of the right of the absolute

immunity of its territory, against aggression from abroad; and these rights it is the duty and

determination of this Government fully and at all times to maintain; while it will at the same

time, as scrupulously, refrain from infringing on the rights of others.

The President instructs the Undersigned to say, in conclusion, that he confidently trusts,

that this, and all other questions of difference between the two Governments, win be

treated by both, in the fun exercise of such a spirit of candor, justice, and mutual respect,

as shad give assurance of the long continuance of peace between the two countries.

The Undersigned avails himself of this opportunity to assure Me Fox of his high

consideration.

DANl WEBSTER.

[Enclosure 2 Extract from presidential message of December 7,1841]I regret that it is not in my power to make known to you an equally satisfactory conclusion

in the case of the Caroline steamer, with the circumstances connected with the destruction

of which, in December, 1837, by an armed force fitted out in the Province of Upper

Canada, you are already made acquainted. No such atonement as was due for the public

wrong done to the United States by this invasion of her territory, so wholly irreconcilable

with her rights as an independent power, has yet been made. In the view taken by this

Government the inquiry whether the vessel was in the employment of those who were

prosecuting an unauthorized war against that Province or was engaged by the owner in the

business of transporting passengers to and from Navy Island in hopes of private gain,

which was most probably the case, in no degree alters the real question at issue between

the two Governments. This Government can never concede to any foreign government the

power, except in a case of the most urgent and extreme necessity, of invading its territory,

either to arrest the persons or destroy the property of those who may have violated the

municipal laws of such foreign government or have disregarded their obligations arising

under the law of nations. The territory of the United States must be regarded as sacredly

secure against an such invasions until they shall voluntarily acknowledge their inability to

acquit themselves of their duties to others. And in announcing this sentiment I do but affirma principle which no nation on earth would be more ready to vindicate at an hazards than

the people and Government of Great Britain. If upon a full investigation of all the facts it



shad appear that the owner of the Caroline was governed by a hostile intent or had made

common cause with those who were in the occupancy of Navy Island, then so far as he is

concerned there can be no claim to indemnity for the destruction of his boat which this

Government would feel itself bound to prosecute, since he would have acted not only in

derogation of the rights of Great Britain, but in clear violation of the laws of the United

States; but that is a question which, however settled, in no manner involves the higher

consideration of the violation of territorial sovereignty and jurisdiction. To recognize it as an

admissible practice that each Government in its turn, upon any sudden and unauthorized

outbreak which, on a frontier the extent of which renders it impossible for either to have an

efficient force on every mile of it, and which outbreak, therefore, neither may be able to

suppress in a day, may take vengeance into its own hands, and without even a

remonstrance, and in the absence of any pressing or overruling necessity may invade the

territory of the other, would inevitably lead to results equally to be deplored by both. When

border collisions come to receive the sanction or to be made on the authority of either

Government general war must be the inevitable result. While it is the ardent desire of the

United States to cultivate the relations of peace with all nations and to fulfill all the duties of

good neighborhood toward those who possess territories adjoining their own, that very

desire would lead them to deny the right of any foreign power to invade their boundary with

an armed force. The correspondence between the two Governments on this subject will at

a future day of your session be submitted to your consideration; and in the meantime I can

not but indulge the hope that the British Government will see the propriety of renouncing as

a rule of future action the precedent which has been set in the affair at Schlosser.

[Lord Ashburton to Mr. Webster]WASHINGTON 28 July 1842

SIR. In the course of our conferences on the several subjects of difference which it was the

object of my mission to endeavour to settle, the unfortunate case of the Caroline, with its

attendant consequences, could not escape our attention; for although it is not of a

description to be susceptible of any settlement by a convention or treaty, yet being

connected with the highest considerations of national honour and dignity it has given rise

at times to deep excitement, so as more than once to endanger the maintenance of peace.

The note you did me the honour of addressing me the 27 inst: reminds me that however

disposed your Government might be to be satisfied with the explanations which it has been

my duty to offer, the natural anxiety of the public mind requires that these explanations

should be more durably recorded in our correspondence, and you send me a copy of your

note to Mr Fox, Her Britannic Majesty's minister here, and an extract from the speech of

the President of the United States to Congress, at the opening of the present session, as a

ready mode of presenting the view entertained on this subject by the Government of the

United States.

It is so far satisfactory to perceive that we are perfectly agreed as to the general principles

of international law applicable to this unfortunate case. Respect for the inviolable characterof the territory of independent nations is the most essential foundation of civilization. It is

useless to strengthen a principle so generally acknowledged by any appeal to authorities



on international law, and you may be assured, Sir, that Her Majesty's Government set the

highest possible value on this principle, and are sensible of their duty to support it by their

conduct and example for the maintenance of peace and order in the world. If a sense of

moral responsibility were not a sufficient surety for their observance of this duty towards all

nations, it will be readily believed that the most common dictates of interest and policy

would lead to it in the ease of a long conterminous boundary of some thousand miles with

a country of such great and growing power as the United States of America, inhabited by a

kindred race, gifted with all its activity and all its susceptibility on points of national honour.

Every consideration therefore leads us to set as highly as your Government can possibly

do this paramount obligation of reciprocal respect for the independent territory of each. But

however strong this duty may be it is admitted by all writers, by all Jurists, by the

occasional practice of all nations, not excepting your own, that a strong overpowering

necessity may arise, when this great principle may and must be suspended. It must be so

for the shortest possible period, during the continuance of an admitted overruling

necessity, and strictly confined within the narrowest limits imposed by that necessity. Self

defence is the first law of our nature and it must be recognized by every code which

professes to regulate the condition and relations of man. Upon this modification, if I may so

call it, of the great general principle, we seem also to be agreed, and on this part of the

subject I have done little more than repeat the sentiments, though in less forcible

language, admitted and maintained by you in the letter to which you refer me.

Agreeing therefore on the general principle and on the possible exception to which it is

liable, the only question between us is whether this occurrence came within the limits fairly

to be assigned to such exception, whether, to use your words, there was "that necessity ofself-defence, instant, overwhelming, leaving no choice of means" which preceded the

destruction of the Caroline, while moored to the shore of the United States. Give me leave

to say, Sir, with an possible admiration of your very ingenious discussion of the general

principles which are supposed to govern the right and practice of interference by the

people of one country in the wars and quarrels of others, that this part of your argument is

little applicable to our immediate case. If Great Britain, America, or any other country suffer

their people to fit out expeditions to take part in distant quarrels, such conduct may,

according to the circumstances of each case, be justly matter of complaint, and perhaps

these transactions have generally been in late times too much overlooked or connived at.

But the ease we are considering is of a wholly different description, and may be best

determined by answering the following question. Supposing a man standing on ground

where you have no legal right to follow him has a weapon long enough to reach you, and is

striking you down and endangering your life, How long are you bound to wait for the

assistance of the authority having the legal power to relieve your or, to bring the facts more

immediately home to the ease, if cannon are moving and setting up in a battery which can

reach you and are actually destroying life and property by their fire, If you have

remonstrated for some time without effect and see no prospect of relief, when begins yourright to defend yourself, should you have no other means of doing so, than by seizing your

assailant on the verge of a neutral territory?



I am unwilling to recall to your recollection the particulars of this case, but I am obliged

very shortly to do so, to show what was at the time the extent of the existing justification,

for upon this entirely depends the question whether a gross insult has or has not been

offered to the Government and people of the United States.

After some tumultuous proceedings in Upper Canada, which were of short duration and

were suppressed by the Militia of the Country, the persons criminally concerned in them

took refuge in the neighbouring state of New York, and with a very large addition to their

numbers openly collected, invaded the Canadian territory taking possession of Navy

Island.

This invasion took place the 16th of December 1837; a gradual accession of numbers and

of military ammunition continued openly, and though under the sanction of no public

authority, at least with no public hinderance until the 29th of the same month, when several

hundred men were collected, and twelve pieces of ordnance, which could only have been

procured from some public store or arsenal, were actually mounted on Navy Island and

were used to fire within easy range upon the unoffending inhabitants of the opposite shore.

Remonstrances, wholly ineffectual were made; so ineffectual indeed that a Militia regiment,

stationed on the neighbouring American island, looked on without any attempt at

interference, while shots were fired from the American island itself. This important feet

stands on the best American authority; being stated in a letter to Mr Forsyth of the 6th of

Feb' 1838, of Mr Benton, attorney of the United States, the gentleman sent by your

Government to enquire into the facts of the case, who adds, very properly, that he makes

the statement "with deep regret and mortification". [The letter of Nathaniel S. Benton,

United States Attorney for the Northern District of New York, is printed in House DocumentNo. 302, 25th Congress, 2d session, serial 329, pp. 36-39.]

This force, formed of all the reckless and mischievous people of the border, formidable

from their numbers and from their armament, had in their pay and as part of their

establishment this steamboatCaroline, the important means and instrument by which

numbers and arms were hourly increasing. I might safely put it to any candid man

acquainted with the existing state of things, to say whether the military commander in

Canada had the remotest reason on the 29th of December to expect to be relieved from

this state of suffering by the protective intervention of any American authority. How long

could a Government, having the paramount duty of protecting its own people be

reasonably expected to wait for what they had then no reason to expect} What would have

been the conduct American officers-what has been their conduct under circumstances

much less aggravated? I would appeal to you, Sir, to say whether the facts which you say

would alone justify this act, viz: " a necessity of self defence, instant, overwhelming,

leaving no choice of means and no moment for deliberation", were not applicable to this

case in as high a degree as they ever were to any case of a similar description in the

history of nations.

Nearly five years are now past since this occurrence, there has been time for the public todeliberate upon it calmly, and I believe I may take it to be the opinion of candid and

honourable men, that the British officers who executed this transaction and their



Government who approved it, intended no slight or disrespect to the sovereign authority of

the United States. That they intended no such disrespect, I can most solemnly affirm, and I

trust it will be admitted that no inference to the contrary can fairly be drawn even by the

most susceptible on Points of national honour.

Notwithstanding my wish that the explanations I had to make might not revive in any

degree any feelings of irritation, I do not see how I could treat this subject without this short

recital of facts, because the proof that no disrespect was intended is mainly to be looked

for in the extent of the justification.

There remains only a point or two which I should wish to notice, to remove in some degree

the impression which your rather highly coloured description of this transaction is

calculated to make. The mode of telling a story often tends to distort facts, and in this case

more than in any other it is important to arrive at plain unvarnished truth.

It appears from every account that the expedition was sent to capture the Caroline when

she was expected to be found on the British ground of Navy island, and that it was only

owing to the orders of the rebel leader being disobeyed, that she was not so found. When

the British officer came round the point of the island in the night, he first discovered that the

vessel was moored to the other shore. He was not by this deterred from making the

capture, and his conduct was approved. But you will perceive that there was here most

decidedly the case of justification mentioned in your note, that there should be "no moment

left for deliberation". I mention this circumstance to show also that the expedition was not

planned with a premeditated purpose of attacking the enemy within the jurisdiction of the

United States, but that the necessity of so doing arose from altered circumstances at the

moment of execution.I have only further to notice the highly coloured picture drawn in your note of the facts

attending the execution of this service. Some importance is attached to the attack having

been made in the night and the vessel having been set on fire and floated down the falls of

the river, and it is insinuated rather than asserted that there was carelessness as to the

lives of the persons on board. The account given by the distinguished officer who

commanded the expedition distinctly refutes or satisfactorily explains these assertions. The

time of night was purposely selected as most likely to ensure the execution with the least

loss of life, and it is expressly stated that, the strength of the current not permitting the

vessel to be carried off, and it being necessary to destroy her by fire, she was drawn into

the stream for the express purpose of preventing injury to persons or property of the

inhabitants at Schlosser [see House Document No. 302, 25th Congress, 2d session, serial

329].

I would willingly have abstained from a return to the facts of this transaction, my duty being

to offer those explanations and assurances which may lead to satisfy the public mind and

to the cessation of all angry feeling, but it appeared to me that some explanation of parts

of the case, apparently misunderstood, might be of service for this purpose.

Although it is believed that a candid and impartial consideration of the whole history of thisunfortunate event will lead to the conclusion that there were grounds of justification as

strong as were ever presented in such cases, and above all that no slight of the authority of



the United States was ever intended, yet it must be admitted that there was in the hurried

execution of this necessary service a violation of territory, and I am instructed to assure

you that Her Majesty's Government consider this as a most serious fact, that far from

thinking that an event of this kind should be lightly risked, they would unfeignedly

deprecate its recurrence. Looking back to what passed at this distance of time what is

perhaps most to be regretted is that some explanation and apology for this occurrence was

not immediately made: this with a frank explanation of the necessity of the case might and

probably would have prevented much of the exasperation and of the subsequent

complaints and recriminations to which it gave rise.

There are possible cases in the relations of nations as of individuals, where necessity

which controls all other laws may be pleaded, but it is neither easy nor safe to attempt to

define the rights or limits properly assignable to such a plea. This must always be a subject

of much delicacy, and should be considered by friendly nations with great candour and

forbearance. The intentions of the parties must mainly be looked to, and can it for a

moment be supposed that Great Britain would intentionally and wantonly provoke a great

and powerful neighbour?

Her Majesty's Government earnestly desire that a reciprocal respect for the independent

jurisdiction and authority of neighbouring states may be considered among the first duties

of all Governments, and I have to repeat the assurance of regret they feel that the event of

which I am treating should have disturbed the harmony they so anxiously wish to maintain

with the American people and Government.

Connected with these transactions there have also been circumstances of which I believe

it is generally admitted that Great Britain has also had just ground to complain. Individualshave been made personally liable for acts done under the avowed authority of their

Government; and there are now many brave men exposed to personal consequences for

no other cause than having served their country. That this is contrary to every principle of

international law it is useless for me to insist. Indeed it had been admitted by every

authority of your Government; but, owing to a conflict of laws, difficulties have intervened

much to the regret of those authorities in giving practical effect to these principles; and for

these difficulties some remedy has been by all desired. It is no business of mine to enter

upon the consideration of them, nor have I sufficient information for the purpose, but I trust

you will excuse my addressing to you the enquiry whether the Government of the United

States is now in a condition to secure m effect and in practice the principle which has

never been denied in argument, that individuals acting under legitimate authority are not

personally responsible for executing the orders of their Government. That the power when

it exists will be used on every fit occasion I am well assured, and I am bound to admit that

looking through the voluminous correspondence concerning these transactions, there

appears no indisposition with any of the authorities of the federal government under its

several administrations to do justice in this respect in as far as their means and powers

would allow.I trust, Sir, I may now be permitted to hope that all feelings of resentment and ill will

resulting from these truly unfortunate events may be buried in oblivion, and that they may



be succeeded by those of harmony and friendship which it is certainly the interest and I

also believe the inclination of all to promote.

I beg, Sir, you will be assured of my high and unfeigned consideration.

ASHBURTON

The Honble DANIEL WEBSTER

&c &c &c

[Mr. Webster to Lord Ashburton]

DEPARTMENT OF STATE, Washington, 6th Augt., 1842.

Lord ASHBURTON, &c, &c, &c

Your Lordship's note of the 28th of July, in answer to mine of the 27eb, respecting the case

of the 'Caroline", has been received, and laid before the President.

The President sees with pleasure that your Lordship fully admits those great principles of

public law, applicable to cases of this kind, which this Government has expressed; and that

on your part, as on ours, respect for the inviolable character of the territory of independent

States is the most essential foundation of civilization. And while it is admitted, on both

sides, that there are exceptions to this rule, he is gratified to find that your Lordship admits

that such exceptions must come within the limitations stated and the terms used in a

former communication from this Department to the British Plenipotentiary here.

Undoubtedly it is just, that while it is admitted that exceptions growing out of the great law

of self-defence do exist, those exceptions should be confined to eases in which the

"necessity of that self-defence is instant, overwhelming, and leaving no choice of means,

and no moment for deliberation."

Understanding these principles alike, the difference between the two Governments is onlywhether the facts in the case of the "Caroline" make out a case of such necessity for the

purpose of self-defence. Seeing that the transaction is not recent, having happened in the

time of one of his predecessors; seeing that your Lordship, in the name of your

Government, solemnly declares that no slight or disrespect was intended to the sovereign

authority of the United States, seeing that it is acknowledged that, whether justifiable or

not, there was yet a violation of the territory of the United States, and that you are

instructed to say that your Government considers that as a most serious occurrence;

seeing, finally, that it is now admitted that an explanation and apology for this violation was

due at the time, the President is content to receive these acknowledgments and

assurances in the conciliatory spirit which marks your Lordship's letter, and will make this

subject, as a complaint of violation of territory, the topic of no further discussion between

the two Governments.

As to that part of your Lordship's note which relates to other occurrences springing out of

the ease of the " Caroline" with which occurrences the name of Alexander McLeod has

become connected, to say that the Government of the United States entirely adhere to the

sentiments and opinions expressed in the communications from this Department to Mr

Fox. This Government has admitted, that for an act committed by the command of hissovereign, lure bell), an individual cannot be responsible, in the ordinary courts of another

State. It would regard it as a high indignity if a citizen of its own, acting under its authority,



and by its special command, in such eases, were held to answer in a municipal tribunal,

and to undergo punishment, as if the behest of his Government were no defense or

protection to him.

But your Lordship is aware that, in regular constitutional Governments, persons arrested

on charges of high crimes can only be discharged by some judicial proceeding. It is so in

England; it is so in the colonies and provinces of England. The forms of judicial proceeding

differ in different countries, being more rapid in some and more dilatory in others; and, it

may be added, generally more dilatory, or at least more cautious, in cases affecting life, in

Governments of a strictly limited than in those of a more unlimited character. It was a

subject of regret that the release of McLeod was so long delayed. A State court, and that

not of the highest jurisdiction, decided that, on summary application, embarrassed as it

would appear, by technical difficulties, he could not be released by that court. His

discharge, shortly afterwards, by a jury, to whom he preferred to submit his case, rendered

unnecessary the further prosecution of the legal question. It is for the Congress of the

United States, whose attention has been called to the subject, to say what further provision

ought to be made to expedite proceedings in such cases and, in answer to your Lordship's

question towards the close of your note, I have to say that the Government of the United

States holds itself not only fully disposed, but fully competent, to carry into practice every

principle which it avows or acknowledges, and to fulfil every duty and obligation which it

owes to foreign Governments, their citizens, or subjects.

I have the honor to be, my Lord, with great consideration, your obedient servant,

DANl WEBSTER.

In the presidential message of August 11, 1842 (quoted above), submitting the Webster-Ashburton Treaty to the Senate, mention was made of the correspondence "upon the

subject of the attack and destruction of the steamboat Caroline"; and in a paragraph

devoted to the subject it was said that the note of Ashburton of July 28 had seemed

"sufficient to warrant forbearance from any further remonstrance against what took place,

as an aggression on the soil and territory of the country ".

The first report of Ashburton on the "settlement" of the case of the Caroline was in his

despatch of July 28, 1842 (Ashburton Papers, despatch No. 14), which enclosed copies of

the first two of the three notes above quoted, with this comment:

Although the question of boundaries forms the material and most substantial part of the

differences which I am expected to settle here, your Lordship is aware that there are other

subjects in which the public here take great interest. Of these the case of the Caroline is

the principal; it has occupied the public mind for nearly five years, and what is called a

settlement of it is expected, and indeed without it there is reason to apprehend that there

would be a general indisposition to settle any thing else. I have attempted this by a letter to

the Secretary of State of which a copy is enclosed, as is also the copy of a letter from him

to me asking explanations on the subject. I have reason to believe that it will be consideredsatisfactory here, and I have only to hope that it may not be disapproved by your Lordship.

This task was one of some delicacy You will perceive that I have interwoven the degree of



apology which I thought the case required with a decided justification of what was done.

Indeed, although the explanation is intended for the public eye, I have said no more than

what I really think was due, and what is necessary to guard against future violations of

territory, from which in this part of the world we have at least as much to fear as our

neighbours.

The remaining case of the Creole will, I fear, be attended with more difficulty. This I shall

undertake tomorrow; and the whole of this correspondence will go before the Senate at the

same time with our treaties.

I am assured that the bills referred to in my note to Mr ebster which are to give power to the

Executive to deal with cases similar to those of Mr Mceod and Mr Hogan, are likely to pass

through Congress before the session ends.

A later despatch, of August 9, 1842 (ibid., despatch No. 19), further reported on the

subject, enclosing a copy of the third of the exchanges above quoted; in that despatch

Ashburton wrote as follows:

In my despatch of the 28th of last month, I had the honour of sending your Lordship copy

of my letter to Mr Webster on the subject of the case of the Croline, and I have now to add

a copy of his reply. This subject of angry controversy may now be considered as so far set

at rest, and I hope in a manner which your Lordship will approve.

I wish I could make as favourable a report of the state of things growing out of this event,

and referred to in the latter part of my and Mr Webster's letters. Your Lordship has been

informed that a Bill had passed the Senate, giving Power to the Executive to relieve

persons in the situation of Mr Mcleod and Mr Bogan from personal persecution arisingfrom their public service. This bill has made some progress in the House of

Representatives, and I am assured that it will pass before the session ends; but there is

much unfinished business before the House and much party irritation and general

confusion, arising from the controversy between the President and the Legislature; and I

am consequently not without apprehension that this important measure may be lost in the

crowd; not so much from any objection to it, as from neglect and from the want of any

person to look after public business.

It will be seen that the principles which govern cases of this description are fully admitted

by the Secretary of State, but experience has proved that, owing to the convicting

complication of federal and State law, there is not that power which he maintains there is,

to give practical effect to his own principles. The public mind being satisfied as to the case

of the Caroline, I am not very apprehensive of any recurrence of these vindictive

proceedings; but at the same time there can be no security, so long as there is no power in

the hands of that branch of the Government which is alone responsible to foreign and to

which alone foreign nations can apply. I am assured, and I believe, that all persons

connected with this Government are sensible of this difficulty, and that they will see that it

be ultimately satisfactorily settled.



It appears, moreover, that the note of Ashburton to Webster of July 28, 1842, which has

been quoted above, was altered from its first form. In his despatch of August 13, 1842

(ibid., marked "Separate"), Ashburton wrote thus:

By my despatch No 14 of the 28th ult, I had the honour of sending your Lordship copy of

my note to Mr Webster on the subject of the Caroline. It was on consideration thought

expedient to suppress a paragraph of that note, which related to the question of

compensation to the owner of the vessel. I have therefore to ask your Lordship's

permission to substitute the accompanying corrected copy of that note, and to request that

the former may be cancelled. There is no other difference between these copies but the

omission of the paragraph above referred to.

A comparison of the corrected copy of the note of July 28-that is to say, the text above

printed-with that originally written shows that the change made was the omission of a few

lines, quoted below, which appeared toward the close of the note as the final sentences of

the paragraph beginning "Although it is believed" and immediately following the words "to

which it gave rise":

If the Boat which was destroyed could by any fair construction of the case have been

considered as the private property of a citizen bona fide and innocently employed by him

as a passage vessel, compensation for its loss might perhaps have been admitted, but it is

notorious that it was part and parcel of the armament of the insurgent force, and I have

reason to know, that the property in part, if not wholly, was in British subjects. Under such

circumstances no question of compensation could be entertained or expected.

The proposed statute to cover such cases as that of McLeod was duly enacted (act ofAugust 29, 1842, 5 Statutes at Large, 539-40).

OIL PLATFORMS CASE (IRAN V. US)

On 2 November 1992, the Islamic Republic of Iran instituted proceedings against the

United States of America concerning a dispute arising out of the attack on three offshore

oil production complexes. The complexes were owned and operated for commercial

purposes by the National Iranian Oil Company and were destroyed by several warships of

the United States Navy on 19 October 1987 and 18 April 1988. In its Application, Iran

contended that these acts constituted a fundamental breach of various provisions of the

Treaty of Amity, Economic Relations and Consular Rights between the United States and

Iran, which was signed in Tehran on 15 August 1955, as well as of international law. The

United States Counter-Memorial included a counter-claim concerning Iran's actions in the

Gulf during 1987-88 which, among other things, involved mining and other attacks on U.S.-

flag or U.S.-owned vessels.

In its Judgment of 6 November 2003, the Court found that it could not uphold thesubmissions of either Government, nor could it uphold the claim of Iran or the counter-

claim of the United States.



-----------------

On 2 November 1992, the Islamic Republic of Iran (hereinafter called "Iran") instituted

proceedings against the United States of America (hereinafter called "the United States")

in respect of a dispute "aris[ing] out of the attack [on] and destruction of three offshore oil

production complexes, owned and operated for commercial purposes by the National

Iranian Oil Company, by several warships of the United States Navy on 19 October 1987

and 18 April 1988, respectively".

In its Application, Iran contended that these acts constituted a "fundamental breach" of

various provisions of the Treaty of Amity, Economic Relations and Consular Rights

between the United States and Iran, which was signed in Tehran on 15 August 1955 and

entered into force on 16 June 1957 (hereinafter called "the 1955 Treaty"), as well as of

international law. The Application invoked, as a basis for the Court's jurisdiction,

Article XXI, paragraph 2, of the 1955 Treaty.

Within the time-limit fixed for the filing of the Counter-Memorial, the United States raised a

preliminary objection to the jurisdiction of the Court pursuant to Article 79, paragraph 1, of

the Rules of Court of 14 April 1978. By a Judgment dated 12 December 1996 the Court

rejected the preliminary objection of the United States according to which the 1955 Treaty

did not provide any basis for the jurisdiction of the Court and found that it had jurisdiction,

on the basis of Article XXI, paragraph 2, of the 1955 Treaty, to entertain the claims made

by Iran under Article X, paragraph 1, of that Treaty.

The United States Counter-Memorial included a counter-claim concerning "Iran's actions inthe Gulf during 1987-88 which, among other things, involved mining and other attacks on

U.S.-flag or U.S.-owned vessels". By an Order of 10 March 1998 the Court held that this

counter-claim was admissible as such and formed part of the proceedings.

Public sittings were held between 17 February and 7 March 2003, at which the Court

heard the oral arguments and replies on the claim of Iran and on the counter-claim of the

United States. At those oral proceedings, the following final submissions were presented

by the Parties:

On behalf of the Government of Iran,

at the hearing of 3 March 2003, on the claim of Iran:

"The Islamic Republic of Iran respectfully requests the Court, rejecting all contrary claims

and submissions, to adjudge and declare:

1. That in attacking and destroying on 19 October 1987 and 18 April 1988 the oil platforms

referred to in Iran's Application, the United States breached its obligations to Iran under

Article X, paragraph 1, of the Treaty of Amity, and that the United States bears

responsibility for the attacks; and

2. That the United States is accordingly under an obligation to make full reparation to Iran

for the violation of its international legal obligations and the injury thus caused in a formand amount to be determined by the Court at a subsequent stage of the proceedings, the



right being reserved to Iran to introduce and present to the Court in due course a precise

evaluation of the reparation owed by the United States; and

3. Any other remedy the Court may deem appropriate";

at the hearing of 7 March 2003, on the counter-claim of the United States:



That the United States counter-claim be dismissed."

On behalf of the Government of the United States,

at the hearing of 5 March 2003, on the claim of Iran and the counter-claim of the United

States:

"The United States respectfully requests that the Court adjudge and declare:

(1) that the United States did not breach its obligations to the Islamic Republic of Iran

under Article X, paragraph 1, of the 1955 Treaty between the United States and Iran; and

(2) that the claims of the Islamic Republic of Iran are accordingly dismissed.

With respect to its counter-claim, the United States requests that the Court adjudge and

declare:

(1) Rejecting all submissions to the contrary, that, in attacking vessels in the Gulf with

mines and missiles and otherwise engaging in military actions that were dangerous and

detrimental to commerce and navigation between the territories of the United States and

the Islamic Republic of Iran, the Islamic Republic of Iran breached its obligations to the

United States under Article X, paragraph 1, of the 1955 Treaty; and

(2) That the Islamic Republic of Iran is accordingly under an obligation to make full

reparation to the United States for its breach of the 1955 Treaty in a form and amount to bedetermined by the Court at a subsequent stage of the proceedings."

Basis of jurisdiction and factual background (paras. 21-26)

The Court begins by pointing out that its task in the present proceedings is to determine

whether or not there have been breaches of the 1955 Treaty, and if it finds that such is the

case, to draw the appropriate consequences according to the submissions of the Parties.

The Court is seised both of a claim by Iran alleging breaches by the United States, and of

a counter-claim by the United States alleging breaches by Iran. Its jurisdiction to entertain

both the claim and the counter-claim is asserted to be based upon Article XXI,

paragraph 2, of the 1955 Treaty.

The Court recalls that, as regards the claim of Iran, the question of jurisdiction has been

the subject of its judgment of 12 December 1996. It notes that certain questions have

however been raised between the Parties as to the precise significance or scope of that

Judgment, which will be examined below.

As to the counter-claim, the Court also recalls that it decided by its Order of 10 March 1998

to admit the counter-claim, and indicated in that Order that the facts alleged and relied on

by the United States "are capable of falling within the scope of Article X, paragraph 1, of

the 1955 Treaty as interpreted by the Court", and accordingly that "the Court has jurisdiction to entertain the United States counter-claim in so far as the facts alleged may

have prejudiced the freedoms guaranteed by Article X, paragraph 1" (I.C.J. Reports 1998,



p. 204, para. 36). It notes that in this respect also questions have been raised between the

Parties as to the significance and scope of that ruling on jurisdiction, and these will be

examined below.

The Court points out that it is however established, by the decisions cited, that both Iran's

claim and the counter-claim of the United States can be upheld only so far as a breach or

breaches of Article X, paragraph 1, of the 1955 Treaty may be shown, even though other

provisions of the Treaty may be relevant to the interpretation of that paragraph. Article X,

paragraph 1, of the 1955 Treaty reads as follows: "Between the territories of the two High

Contracting Parties there shall be freedom of commerce and navigation."

The Court then sets out the factual background to the case, as it emerges from the

pleadings of both Parties, observing that the broad lines of this background are not

disputed, being a matter of historical record. The actions giving rise to both the claim and

the counter-claim occurred in the context of the general events that took place in the

Persian Gulf - which is an international commercial route and line of communication of

major importance - between 1980 and 1988, in particular the armed conflict that opposed

Iran and Iraq. In 1984, Iraq commenced attacks against ships in the Persian Gulf, notably

tankers carrying Iranian oil. These were the first incidents of what later became known as

the "Tanker War": in the period between 1984 and 1988, a number of commercial vessels

and warships of various nationalities, including neutral vessels, were attacked by aircraft,

helicopters, missiles or warships, or struck mines in the waters of the Persian Gulf. Naval

forces of both belligerent parties were operating in the region, but Iran has denied

responsibility for any actions other than incidents involving vessels refusing a proper

request for stop and search. The United States attributes responsibility for certain incidentsto Iran, whereas Iran suggests that Iraq was responsible for them.

The Court takes note that two specific attacks on shipping are of particular relevance in

this case. On 16 October 1987, the Kuwaiti tankerSea Isle City, reflagged to the United

States, was hit by a missile near Kuwait harbour. The United States attributed this attack to

Iran, and three days later, on 19 October 1987, it attacked two Iranian offshore oil

production installations in the Reshadat ["Rostam"] complex. On 14 April 1988, the warship

USS Samuel B. Roberts struck a mine in international waters near Bahrain while returning

from an escort mission; four days later the United States employed its naval forces to

attack and destroy simultaneously the Nasr ["Sirri"] and Salman ["Sassan"] complexes.

These attacks by United States forces on the Iranian oil platforms are claimed by Iran to

constitute breaches of the 1955 Treaty; and the attacks on the Sea Isle City and the

USS Samuel B. Roberts were invoked in support of the United States' claim to act in self-

defence. The counter-claim of the United States is however not limited to those attacks.

The United States request to dismiss Iran's claim because of Iran's allegedly unlawful

conduct (paras. 27-30)

The Court first considers a contention to which the United States appears to have

attributed a certain preliminary character. The United States asks the Court to dismissIran's claim and refuse it the relief it seeks, because of Iran's allegedly unlawful conduct,



i.e., its violation of the 1955 Treaty and other rules of international law relating to the use of

force.

The Court notes that in order to make the finding requested by the United States it would

have to examine Iranian and United States actions in the Persian Gulf during the relevant

period - which it has also to do in order to rule on the Iranian claim and the United States

counter-claim. At this stage of its judgment, it does not therefore need to deal with this

request.

Application of Article XX, paragraph 1 (d), of the 1955 Treaty (paras. 31-78)

The Court recalls that the dispute in the present case has been brought before it on the

jurisdictional basis of Article XXI, paragraph 2, of the 1955 Treaty, which provides that "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."

The Court further recalls that by its Judgment of 12 December 1996, it found that it had

jurisdiction, on the basis of this Article, "to entertain the claims made by the Islamic

Republic of Iran under Article X, paragraph 1, of that Treaty" (I.C.J. Reports 1996 (II),

p. 821, para. 55 (2)). Its task is thus to ascertain whether there has been a breach by the

United States of the provisions of Article X, paragraph 1; other provisions of the Treaty are

only relevant in so far as they may affect the interpretation or application of that text.

In that respect, the Court notes that the United States has relied on Article XX,

paragraph 1 (d), of the Treaty as determinative of the question of the existence of a breach

of its obligations under Article X. That paragraph provides that"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."

In its Judgment on the United States preliminary objection of 12 December 1996, the Court

ruled that Article XX, paragraph 1 (d), does not afford an objection to admissibility, but "is

confined to affording the Parties a possible defence on the merits" (I.C.J. Reports 1996 (II),

p. 811, para. 20). In accordance with Article XXI, paragraph 2, of the Treaty, it is now for

the Court to interpret and apply that subparagraph, inasmuch as such a defence is

asserted by the United States.

To uphold the claim of Iran, the Court must be satisfied both that the actions of the United

States, complained of by Iran, infringed the freedom of commerce between the territories

of the Parties guaranteed by Article X, paragraph 1, and that such actions were not

justified to protect the essential security interests of the United States as contemplated by

Article XX, paragraph 1 (d). The question however arises in what order the Court should

examine these questions of interpretation and application of the Treaty.In the present case, it appears to the Court that there are particular considerations

militating in favour of an examination of the application of Article XX, paragraph 1 (d),



before turning to Article X, paragraph 1. It is clear that the original dispute between the

Parties related to the legality of the actions of the United States, in the light of international

law on the use of force. 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. Furthermore, as the United States itself recognizes in

its Rejoinder, "The self-defense issues presented in this case raise matters of the highest

importance to all members of the international community", and both Parties are agreed as

to the importance of the implications of the case in the field of the use of force, even

though they draw opposite conclusions from this observation. The Court therefore

considers that, to the extent that its jurisdiction under Article XXI, paragraph 2, of the 1955

Treaty authorizes it to examine and rule on such issues, it should do so.

The question of the relationship between self-defence and Article XX, paragraph 1 (d), of

the Treaty has been disputed between the Parties, in particular as regards the jurisdiction

of the Court. In the view of the Court, the matter is one of interpretation of the Treaty, and

in particular of Article XX, paragraph 1 (d). The question is whether the parties to the 1955

Treaty, when providing therein that it should "not preclude the application of measures . . .

necessary to protect [the] essential security interests" of either party, intended that suchshould be the effect of the Treaty even where those measures involved a use of armed

force; and if so, whether they contemplated, or assumed, a limitation that such use would

have to comply with the conditions laid down by international law. The Court considers 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.

The Court therefore examines first the application of Article XX, paragraph 1 (d), of the

1955 Treaty, which in the circumstances of this case, as explained above, involves the

principle of the prohibition in international law of the use of force, and the qualification to it

constituted by the right of self-defence. On the basis of that provision, a party to the Treaty

may be justified in taking certain measures which it considers to be "necessary" for the

protection of its essential security interests. In the present case, the question whether the

measures taken were "necessary" overlaps with the question of their validity as acts of

self-defence.In this connection, the Court notes that it is not disputed between the Parties that neutral

shipping in the Persian Gulf was caused considerable inconvenience and loss, and grave



damage, during the Iran-Iraq war. It notes also that this was to a great extent due to the

presence of mines and minefields laid by both sides. The Court has no jurisdiction to

enquire into the question of the extent to which Iran and Iraq complied with the

international legal rules of maritime warfare. It can however take note of these

circumstances, regarded by the United States as relevant to its decision to take action

against Iran which it considered necessary to protect its essential security interests.

Nevertheless, the legality of the action taken by the United States has to be judged by

reference to Article XX, paragraph 1 (d), of the 1955 Treaty, in the light of international law

on the use of force in self-defence.

The Court observes that the United States has never denied that its actions against the

Iranian platforms amounted to a use of armed force. The Court indicates that it will

examine whether each of these actions met the conditions of Article XX, paragraph 1 (d),

as interpreted by reference to the relevant rules of international law.

Attack of 19 October 1987 on Reshadat (paras. 46-64)

The Court recalls that the first installation attacked, on 19 October 1987, was the Reshadat

complex, which was also connected by submarine pipeline to another complex, named

Resalat. At the time of the United States attacks, these complexes were not producing oil

due to damage inflicted by prior Iraqi attacks. Iran has maintained that repair work on the

platforms was close to completion in October 1987. The United States has however

challenged this assertion. As a result of the attack, one platform was almost completely

destroyed and another was severely damaged and, according to Iran, production from the

Reshadat and Resalat complexes was interrupted for several years.

The Court first concentrates on the facts tending to show the validity or otherwise of theclaim to exercise the right of self-defence. In its communication to the Security Council at

the time of the attack, the United States based this claim on the existence of "a series of

unlawful armed attacks by Iranian forces against the United States, including laying mines

in international waters for the purpose of sinking or damaging United States flag ships, and

firing on United States aircraft without provocation"; it referred in particular to a missile

attack on the Sea Isle City as being the specific incident that led to the attack on the

Iranian platforms. Before the Court, it has based itself more specifically on the attack on

the Sea Isle City, but has continued to assert the relevance of the other attacks.

The Court points out that 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. 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 for which Iran was responsible; and that those attacks

were of such a nature as to be qualified as "armed attacks" within the meaning of that

expression in Article 51 of the United Nations Charter, and as understood in customary law

on the use of force. The United States must also show that its actions were necessary and

proportional to the armed attack made on it, and that the platforms were a legitimatemilitary target open to attack in the exercise of self-defence.



belligerents in the Iran-Iraq war, so that evidence of other minelaying operations by Iran is

not conclusive as to responsibility of Iran for this particular mine. The main evidence that

the mine struck by the USS Samuel B. Roberts was laid by Iran was the discovery of

moored mines in the same area, bearing serial numbers matching other Iranian mines, in

particular those found aboard the vessel Iran Ajr. This evidence is highly suggestive, but

not conclusive.

Furthermore, no attacks on United States-flagged vessels (as distinct from United States-

owned vessels), additional to those cited as justification for the earlier attacks on the

Reshadat platforms, have been brought to the Court's attention, other than the mining of

the USS Samuel B. Robertsitself. The question is therefore whether that incident sufficed

in itself to justify action in self-defence, as amounting to an "armed attack". The Court does

not exclude the possibility that the mining of a single military vessel might be sufficient to

bring into play the "inherent right of self-defence"; but in view of all the circumstances,

including the inconclusiveness of the evidence of Iran's responsibility for the mining of the

USS Samuel B. Roberts, the Court is unable to hold that the attacks on the Salman and

Nasr platforms have been shown to have been justifiably made in response to an "armed

attack" on the United States by Iran, in the form of the mining of the

USS Samuel B. Roberts.

Criteria of necessity and proportionality (paras. 73-77)

The Court points out that in the present case a question of whether certain action is

"necessary" arises both as an element of international law relating to self-defence and on

the basis of the actual terms of Article XX, paragraph 1 (d), of the 1955 Treaty, already

quoted, whereby the Treaty does "not preclude . . . measures . . . necessary to protect [the]essential security interests" of either party. The Court therefore turns to the criteria of

necessity and proportionality in the context of international law on self-defence. One

aspect of these criteria is the nature of the target of the force used avowedly in self-

defence.

The Court indicates that it is not sufficiently convinced that the evidence available supports

the contentions of the United States as to the significance of the military presence and

activity on the Reshadat oil platforms; and it notes that no such evidence is offered in

respect of the Salman and Nasr complexes. However, even accepting those contentions,

for the purposes of discussion, the Court finds itself unable to hold that the attacks made

on the platforms could have been justified as acts of self-defence. In the case both of the

attack on the Sea Isle City and the mining of the USS Samuel B. Roberts, the Court is not

satisfied that the attacks on the platforms were necessary to respond to these incidents.

As to the requirement of proportionality, the attack of 19 October 1987 might, had the

Court found that it was necessary in response to the Sea Isle City incident as an armed

attack committed by Iran, have been considered proportionate. In the case of the attacks

of 18 April 1988, however, they were conceived and executed as part of a more extensive

operation entitled "Operation Praying Mantis". As a response to the mining, by anunidentified agency, of a single United States warship, which was severely damaged but

not sunk, and without loss of life, neither "Operation Praying Mantis" as a whole, nor even



that part of it that destroyed the Salman and Nasr platforms, can be regarded, in the

circumstances of this case, as a proportionate use of force in self-defence.

Conclusion (para. 78)

The Court thus concludes from the foregoing that the actions carried out by United States

forces against Iranian oil installations on 19 October 1987 and 18 April 1988 cannot be

justified, under Article XX, paragraph 1 (d), of the 1955 Treaty, as being measures

necessary to protect the essential security interests of the United States, since those

actions constituted recourse to armed force not qualifying, under international law on the

question, as acts of self-defence, and thus did not fall within the category of measures

contemplated, upon its correct interpretation, by that provision of the Treaty.

Iran's claim under Article X, paragraph 1, of the 1955 Treaty (paras. 79-99)

Having satisfied itself that the United States may not rely, in the circumstances of the case,

on the defence to the claim of Iran afforded by Article XX, paragraph 1 (d), of the

1955 Treaty, the Court turns to that claim, made under Article X, paragraph 1, of that

Treaty, which provides that "Between the territories of the two High Contracting Parties

there shall be freedom of commerce and navigation."

In its Judgment of 12 December 1996 on the preliminary objection of the United States, the

Court had occasion, for the purposes of ascertaining and defining the scope of its

jurisdiction, to interpret a number of provisions of the 1955 Treaty, including Article X,

paragraph 1. It noted that the Applicant had not alleged that any military action had

affected its freedom of navigation, so that the only question to be decided was "whether

the actions of the United States complained of by Iran had the potential to affect freedom

of commerce'" as guaranteed by that provision (I.C.J. Reports 1996 (II), p. 817, para. 38).After examining the contentions of the Parties as to the meaning of the word, the Court

concluded that "it would be a natural interpretation of the word commerce' in Article X,

paragraph 1, of the Treaty of 1955 that it includes commercial activities in general - not

merely the immediate act of purchase and sale, but also the ancillary activities integrally

related to commerce" (ibid., p. 819, para. 49).

In that decision, the Court also observed that it did not then have to enter into the question

whether Article X, paragraph 1, "is restricted to commerce between' the Parties" (I.C.J.

Reports 1996 (II), p. 817, para. 44). However it is now common ground between the

Parties that that provision is in terms limited to the protection of freedom of commerce

"between the territories of the two High Contracting Parties". The Court observes that it is

oil exports from Iran to the United States that are relevant to the case, not such exports in

general.

In the 1996 Judgment, the Court further emphasized that "Article X, paragraph 1, of the

Treaty of 1955 does not strictly speaking protect commerce' but freedom of commerce'",

and continued: "Unless such freedom is to be rendered illusory, the possibility must be

entertained that it could actually be impeded as a result of acts entailing the destruction of

goods destined to be exported, or capable of affecting their transport and storage with aview to export" (ibid., p. 819, para. 50). The Court also noted that "Iran's oil production, a

vital part of that country's economy, constitutes an important component of its foreign



trade", and that "On the material now before the Court, it is . . . not able to determine if and

to what extent the destruction of the Iranian oil platforms had an effect upon the export

trade in Iranian oil . . ." (ibid., p. 820, para. 51). The Court concludes by observing that if,

at the present stage of the proceedings, it were to find that Iran had established that such

was the case, the claim of Iran under Article X, paragraph 1, could be upheld.

Before turning to the facts and to the details of Iran's claim, the Court mentions that the

United States has not succeeded, to the satisfaction of the Court, in establishing that the

limited military presence on the platforms, and the evidence as to communications to and

from them, could be regarded as justifying treating the platforms as military installations

(see above). For the same reason, the Court is unable to regard them as outside the

protection afforded by Article X, paragraph 1, of the 1955 Treaty, as alleged by the United

States.

The Court in its 1996 Judgment contemplated the possibility that freedom of commerce

could be impeded not only by "the destruction of goods destined to be exported", but also

by acts "capable of affecting their transport and their storage with a view to export" (I.C.J.

Reports 1996 (II), p. 819, para. 50). In the view of the Court, the activities of the platforms

are to be regarded, in general, as commercial in nature; it does not, however, necessarily

follow that any interference with such activities involves an impact on the freedom of

commerce between the territories of Iran and the United States.

The Court considers that where a State destroys another State's means of production and

transport of goods destined for export, or means ancillary or pertaining to such production

or transport, there is in principle an interference with the freedom of international

commerce. In destroying the platforms, whose function, taken as a whole, was precisely toproduce and transport oil, the military actions made commerce in oil, at that time and from

that source, impossible, and to that extent prejudiced freedom of commerce. While the oil,

when it left the platform complexes, was not yet in a state to be safely exported, the fact

remains that it could be already at that stage destined for export, and the destruction of the

platform prevented further treatment necessary for export. The Court therefore finds that

the protection of freedom of commerce under Article X, paragraph 1, of the 1955 Treaty

applied to the platforms attacked by the United States, and the attacks thus impeded Iran's

freedom of commerce. However, the question remains whether there was in this case an

interference with freedom of commerce "between the territories of the High Contracting

Parties".

The United States in fact contends further that there was in any event no breach of

Article X, paragraph 1, inasmuch as, even assuming that the attacks caused some

interference with freedom of commerce, it did not interfere with freedom of commerce

"between the territories of the two High Contracting Parties". First, as regards the attack of

19 October 1987 on the Reshadat platforms, it observes that the platforms were under

repair as a result of an earlier attack on them by Iraq; consequently, they were not

engaged in, or contributing to, commerce between the territories of the Parties. Secondly,as regards the attack of 18 April 1988 on the Salman and Nasr platforms, it draws attention

to United States Executive Order 12613, signed by President Reagan on 29 October 1987,



which prohibited, with immediate effect, the import into the United States of most goods

(including oil) and services of Iranian origin. As a consequence of the embargo imposed by

this Order, there was, it is suggested, no commerce between the territories of the Parties

that could be affected, and consequently no breach of the Treaty protecting it.

Iran has asserted, and the United States has not denied, that there was a market for

Iranian crude oil directly imported into the United States up to the issuance of Executive

Order 12613 of 29 October 1987. Thus Iranian oil exports did up to that time constitute the

subject of "commerce between the territories of the High Contracting Parties" within the

meaning of Article X, paragraph 1, of the 1955 Treaty.

The Court observes that at the time of the attack of 19 October 1987 no oil whatsoever

was being produced or processed by the Reshadat and Resalat platforms, since these had

been put out of commission by earlier Iraqi attacks. While it is true that the attacks caused

a major setback to the process of bringing the platforms back into production, there was at

the moment of the attacks on these platforms no ongoing commerce in oil produced or

processed by them.

The Court further observes that the embargo imposed by Executive Order 12613 was

already in force when the attacks on the Salman and Nasr platforms were carried out; and

that, it has not been shown that the Reshadat and Resalat platforms would, had it not been

for the attack of 19 October 1987, have resumed production before the embargo was

imposed. The Court must therefore consider the significance of that Executive Order for

the interpretation and application of Article X, paragraph 1, of the 1955 Treaty.

The Court sees no reason to question the view sustained by Iran that, over the period

during which the United States embargo was in effect, petroleum products were reachingthe United States, in considerable quantities, that were derived in part from Iranian crude

oil. It points out, however, that what the Court has to determine is not whether something

that could be designated "Iranian" oil entered the United States, in some form, during the

currency of the embargo; it is whether there was "commerce" in oil between the territories

of Iran and the United States during that time, within the meaning given to that term in the

1955 Treaty.

In this respect, what seems to the Court to be determinative is the nature of the successive

commercial transactions relating to the oil, rather than the successive technical processes

that it underwent. What Iran regards as "indirect" commerce in oil between itself and the

United States involved a series of commercial transactions: a sale by Iran of crude oil to a

customer in Western Europe, or some third country other than the United States; possibly

a series of intermediate transactions; and ultimately the sale of petroleum products to a

customer in the United States. This is not "commerce" between Iran and the United States,

but commerce between Iran and an intermediate purchaser; and "commerce" between an

intermediate seller and the United States.

The Court thus concludes, with regard to the attack of 19 October 1987 on the Reshadat

platforms, that there was at the time of those attacks no commerce between the territoriesof Iran and the United States in respect of oil produced by those platforms and the Resalat

platforms, inasmuch as the platforms were under repair and inoperative; and that the



attacks cannot therefore be said to have infringed the freedom of commerce in oil between

the territories of the High Contracting Parties protected by Article X, paragraph 1, of the

1955 Treaty, particularly taking into account the date of entry into force of the embargo

effected by Executive Order 12613. The Court notes further that, at the time of the attacks

of 18 April 1988 on the Salman and Nasr platforms, all commerce in crude oil between the

territories of Iran and the United States had been suspended by that Executive Order, so

that those attacks also cannot be said to have infringed the rights of Iran under Article X,


The Court is therefore unable to uphold the submissions of Iran, that in carrying out those

attacks the United States breached its obligations to Iran under Article X, paragraph 1, of

the 1955 Treaty. In view of this conclusion, the Iranian claim for reparation cannot be

upheld.

*

The Court furthermore concludes that, in view of this finding on the claim of Iran, it

becomes unnecessary to examine the argument of the United States (referred to above)

that Iran might be debarred from relief on its claim by reason of its own conduct.

United States Counter-Claim (paras. 101-124)

The Court recalls that the United States has filed a counter-claim against Iran and refers to

the corresponding final submissions presented by the United States in the Counter-

Memorial.

The Court further recalls that, by an Order of 10 March 1998 it found "that the counter-

claim presented by the United States in its Counter-Memorial is admissible as such and

forms part of the current proceedings."Iran's objections to the Court's jurisdiction and to the admissibility of the United States

counter-claim (paras. 103-116)

Iran maintains that the Court's Order of 10 March 1998 did not decide all of the preliminary

issues involved in the counter-claim presented by the United States; the Court only ruled

on the admissibility of the United States counter-claim in relation to Article 80 of the Rules

of Court, declaring it admissible "as such", whilst reserving the subsequent procedure for

further decision. Iran contends that the Court should not deal with the merits of the

counter-claim, presenting five objections.

The Court considers that it is open to Iran at this stage of the proceedings to raise

objections to the jurisdiction of the Court to entertain the counter-claim or to its

admissibility, other than those addressed by the Order of 10 March 1998. It points out that

this Order does not address any question relating to jurisdiction and admissibility not

directly linked to Article 80 of the Rules. The Court indicates that it will therefore proceed to

address the objections now presented by Iran.

The Court finds that it cannot uphold the first objection of Iran to the effect that the Court

cannot entertain the counter-claim of the United States because it was presented without

any prior negotiation, and thus does not relate to a dispute "not satisfactorily adjusted bydiplomacy" as contemplated by Article XXI, paragraph 2, of the 1955 Treaty. The Court

points out that it is established that a dispute has arisen between Iran and the United



States over the issues raised in the counter-claim; and that it is sufficient for the Court to

satisfy itself that the dispute was not satisfactorily adjusted by diplomacy before being

submitted to the Court.

The Court finds that the second objection of Iran, according to which the United States is in

effect submitting a claim on behalf of third States or of foreign entities and has no title to do

so, is devoid of any object and cannot be upheld The Court recalls that the first submission

presented by the United States in regard to its counter-claim simply requests the Court to

adjudge and declare that the alleged actions of Iran breached its obligations to the United

States, without mention of any third States.

In its third objection, Iran contends that the United States counter-claim extends beyond

Article X, paragraph 1, of the 1955 Treaty, the only text in respect of which the Court has

jurisdiction, and that the Court cannot therefore uphold any submissions falling outside the

terms of paragraph 1 of that Article. The Court notes that the United States, in presenting

its final submissions on the counter-claim, no longer relies, as it did at the outset, on

Article X of the 1955 Treaty as a whole, but on paragraph 1 of that Article only, and,

furthermore, recognizes the territorial limitation of Article X, paragraph 1, referring

specifically to the military actions that were allegedly "dangerous and detrimental to

commerce and navigation between the territories of the United States and the Islamic

Republic of Iran" (emphasis added) rather than, generally, to "military actions that were

dangerous and detrimental to maritime commerce". By limiting the scope of its counter-

claim in its final submissions, the United States has deprived Iran's third objection of any

object, and the Court finds that it cannot therefore uphold it.

In its fourth objection Iran maintains that "the Court has jurisdiction to rule only on counter-claims alleging a violation by Iran of freedom of commerce as protected under Article X (1),

and not on counter-claims alleging a violation of freedom of navigation as protected by the

same paragraph". The Court notes nevertheless, that Iran seems to have changed its

position and recognized that the counter-claim could be founded on a violation of freedom

of navigation. The Court further observes that it also concluded in 1998 that it had

jurisdiction to entertain the United States Counter-Claim in so far as the facts alleged may

have prejudiced the freedoms (in the plural) guaranteed by Article X, paragraph 1, of the

1955 Treaty, i.e., freedom of commerce and freedom of navigation. This objection of Iran

thus cannot be upheld by the Court.

Iran presents one final argument against the admissibility of the United States counter-

claim, which however it concedes relates only to part of the counter-claim. Iran contends

that the United States has broadened the subject-matter of its claim beyond the

submissions set out in its counter-claim by having, belatedly, added complaints relating to

freedom of navigation to its complaints relating to freedom of commerce, and by having

added new examples of breaches of freedom of maritime commerce in its Rejoinder in

addition to the incidents already referred to in the Counter-Claim presented with the

Counter-Memorial.The Court observes that the issue raised by Iran is whether the United States is presenting

a new claim. The Court is thus faced with identifying what is "a new claim" and what is



merely "additional evidence relating to the original claim". It is well established in the

Court's jurisprudence that the parties to a case cannot in the course of proceedings

"transform the dispute brought before the Court into a dispute that would be of a different

nature." The Court recalls that it has noted in its Order of 10 March 1998 in the present

case that the Counter-Claim alleged "attacks on shipping, the laying of mines, and other

military actions said to be dangerous and detrimental to maritime commerce'" (I.C.J.

Reports 1998, p. 204, para. 36). Subsequently to its Counter-Memorial and Counter-Claim

and to that Order of the Court, the United States provided detailed particulars of further

incidents substantiating, in its contention, its original claims. In the view of the Court, the

United States has not, by doing so, transformed the subject of the dispute originally

submitted to the Court, nor has it modified the substance of its counter-claim, which

remains the same. The Court therefore cannot uphold the objection of Iran.

Merits of the United States Counter-Claim (paras. 119-123)

Having disposed of all objections of Iran to its jurisdiction over the counter-claim, and to the

admissibility thereof, the Court considers the counter-claim on its merits. It points out that,

to succeed on its counter-claim, the United States must show that: (a) its freedom of

commerce or freedom of navigation between the territories of the High Contracting Parties

to the 1955 Treaty was impaired; and that (b) the acts which allegedly impaired one or both

of those freedoms are attributable to Iran.

The Court recalls that Article X, paragraph 1, of the 1955 Treaty does not protect, as

between the Parties, freedom of commerce or freedom of navigation in general. As already

noted above, the provision of that paragraph contains an important territorial limitation. In

order to enjoy the protection provided by that text, the commerce or the navigation is to bebetween the territories of the United States and Iran. The United States bears the burden

of proof that the vessels which were attacked were engaged in commerce or navigation

between the territories of the United States and Iran.

The Court then examines each of Iran's alleged attacks, in chronological order, from the

standpoint of this requirement of the 1955 Treaty and concludes that none of the vessels

described by the United States as being damaged by Iran's alleged attacks was engaged

in commerce or navigation "between the territories of the two High Contracting Parties".

Therefore, the Court concludes that there has been no breach of Article X, paragraph 1, of

the 1955 Treaty in any of the specific incidents involving these ships referred to in the

United States pleadings.

The Court takes note that the United States has also presented its claim in a generic

sense. It has asserted that as a result of the cumulation of attacks on US and other

vessels, laying mines and otherwise engaging in military actions in the Persian Gulf, Iran

made the Gulf unsafe, and thus breached its obligation with respect to freedom of

commerce and freedom of navigation which the United States should have enjoyed under

Article X, paragraph 1, of the 1955 Treaty.

The Court observes that, while it is a matter of public record that as a result of the Iran-Iraqwar navigation in the Persian Gulf involved much higher risks, that alone is not sufficient for

the Court to decide that Article X, paragraph 1, was breached by Iran. It is for the United



States to show that there was an actual impediment to commerce or navigation between

the territories of the two High Contracting Parties. However, the United States has not

demonstrated that the alleged acts of Iran actually infringed the freedom of commerce or of

navigation between the territories of the United States and Iran. The Court also notes that

the examination above of specific incidents shows that none of them individually involved

any interference with the commerce and navigation protected by the 1955 Treaty;

accordingly the generic claim of the United States cannot be upheld.

The Court has thus found that the counter-claim of the United States concerning breach by

Iran of its obligations to the United States under Article X, paragraph 1, of the 1955 Treaty,

whether based on the specific incidents listed, or as a generic claim, must be rejected;

there is therefore no need for it to consider, under this head, the contested issues of

attribution of those incidents to Iran. In view of the foregoing, the United States claim for

reparation cannot be upheld.

*

The full text of the operative paragraph (para. 125) reads as follows:

"For these reasons,

The court,

(1) By fourteen votes to two,

Finds that the actions of the United States of America against Iranian oil platforms on

19 October 1987 and 18 April 1988 cannot be justified as measures necessary to protect

the essential security interests of the United States of America under Article XX,

paragraph 1 (d), of the 1955 Treaty of Amity, Economic Relations and Consular Rightsbetween the United States of America and Iran, as interpreted in the light of international

law on the use of force; finds further that the Court cannot however uphold the submission

of the Islamic Republic of Iran that those actions constitute a breach of the obligations of

the United States of America under Article X, paragraph 1, of that Treaty, regarding

freedom of commerce between the territories of the parties, and that, accordingly, the

claim of the Islamic Republic of Iran for reparation also cannot be upheld;

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,

Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Buergenthal, Owada, Simma,

Tomka; Judge ad hoc Rigaux;

AGAINST: Judges Al-Khasawneh, Elaraby;

(2) By fifteen votes to one,

Finds that the counter-claim of the United States of America concerning the breach of the

obligations of the Islamic Republic of Iran under Article X, paragraph 1, of the above-

mentioned 1955 Treaty, regarding freedom of commerce and navigation between the

territories of the parties, cannot be upheld; and accordingly, that the counter-claim of the

United States of America for reparation also cannot be upheld.

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal,

Elaraby, Owada, Tomka; Judge ad hoc Rigaux;



AGAINST: Judge Simma.

___________

Annex to Summary 2003/2

Declaration of Judge Ranjeva

Subscribing to the conclusions set out in the Judgment, Judge Ranjeva raises the

distinction arising in respect of the same set of facts between the violation of freedom of

commerce between the two Parties and the non-violation of freedom of commerce

between those Parties' territories.

In his declaration Judge Ranjeva draws attention to the fact that the Judgment pierces the

veil of the dispute: the Court sought to give priority to thorough consideration of the point of

law to which the Parties ascribed the greatest importance: whether the use of force was

justified under Article XX, paragraph 1, of the 1955 Treaty or the principle of self-defence

under international law. The negative response given in the operative part itself reflects the

Court's decision to adopt an approach grounded on an analysis of the elements of the

claim: its cause (cur) and its subject(quid). It would have been appropriate under these

circumstances to look to Article 38, paragraph 2, of the Rules of Court and to refer directly

to the concept of the cause of the claim. Another approach, masking the cause of the

claim, would have affected the subject of the litigants' true intent and favoured wholly

artificial considerations or purely logical ones, given the strategy employed in presenting

the claims and arguments. In the present proceedings the Respondent's attitude helped to

forestall the theoretical debate concerning the tension between the consensual basis of the

Court's jurisdiction and the principle jura novit curia.

Declaration of Judge KoromaIn the declaration he appended to the Judgment, Judge Koroma stated that it was crucial

and correct, in his view, that the Court had determined that measures involving the use of

force and purported to have been taken under the Article of the 1955 Treaty relating to the

maintenance or restoration of international peace and security, or necessary to protect a

State party's essential security interests, had to be judged on the basis of the principle of

the prohibition under international law of the use of force, as qualified by the right of self-

defence. In other words, whether an action alleged to be justified under the Article was or

was not an unlawful measure had to be determined by reference to the criteria of the

United Nations Charter and general international law.

He agreed with the Court's decision, as reflected in the Judgment, that the actions carried

out against the oil installations were not lawful as measures necessary to protect the

essential security interests of the United States, since those actions constituted recourse to

armed force not qualifying, under the United Nations Charter and general international law,

as acts of self-defence, and thus did not fall within the category of measures contemplated

by the 1955 Treaty. Judge Koroma maintained that that finding constituted a reply to the

submissions of the Parties and, accordingly, the issue of non ultra petita did not arise.

He also subscribed to the Court's finding that the protection of freedom of commerce underthe 1955 Treaty applied to the oil installations and that the attacks, prima facie, impeded

Iran's freedom of commerce within the meaning of that expression in the text of the Treaty,



but did not violate the freedom of commerce. Judge Koroma considered this finding not

devoid of significance.

Separate opinion of Judge Higgins

Judge Higgins has voted in favour of the dispositif, because she agrees that the claim of

Iran that the United States has violated Article X, paragraph 1, of the Treaty of Amity

cannot be upheld.

However, she believes that this determination makes it unnecessary for the Court also to

address in its Judgment the question of whether the United States could justify its military

attacks on the oil platforms under Article XX, paragraph 1 (d), of the same Treaty. This is

because the Court itself has said, in its Judgment on Preliminary Objections in 1996, that

Article XX, paragraph 1 (d), is in the nature of a defence. In the absence of any finding of a

breach by the United States of Article X, paragraph 1, the issue of a possible defence does

not arise.

Judge Higgins observes that there are two particular reasons why there should not have

been a finding on Article XX, paragraph 1 (d), in thedispositif. The first is that the Court

usually treats a defence as part of its reasoning in deciding whether a Respondent has

acted contrary to an international legal obligation. It is its conclusion which normally

constitutes the dispositif, and not its reasoning as to any possible defence or justification.

The second reason is that, given the consensual basis of jurisdiction, the Court is limited in

the dispositif to making findings upon matters that the Applicant has requested for

determination. The final submissions of Iran do not include any request for a determination

on Article XX, paragraph 1 (d).

Even if it had been correct for the Court to deal with that clause, Judge Higgins believesthat it should then have interpreted the particular provisions in the light of general

international law as to their specific terms. In her view, the Court has not interpreted the

actual terms of Article XX, paragraph 1 (d), but has essentially replaced them, assessing

the United States military action by reference to the law on armed attack and self-defence.

Finally, in Judge Higgins's opinion, in the handling of the evidence that would fall for

consideration in any examination of Article XX, paragraph 1 (d), the Court has not

specified the standard of evidence to be met; nor dealt with the evidence in sufficient

detail; nor dealt with it in an even-handed manner.

Separate opinion of Judge Parra-Aranguren

Judge Parra-Aranguren declared that his vote for the operative part of the Judgment

should not be understood as an expression of agreement with each and every part of the

reasoning followed by the Court in reaching its conclusions. In particular he indicated his

disagreement with the first sentence of paragraph 125 (1) stating that the Court: "Finds

that the actions of the United States of America against Iranian oil platforms on




law on the use of force."



expressly interpreted Article XX, paragraph 1 (d), of the 1955 Treaty "as affording only a

defence on the merits", concluding that it "is confined to affording the Parties a possible

defence on the merits to be used should the occasion arise" (Oil Platforms (Islamic

Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J.

Reports 1996 (II), p. 811, para. 20).

Consequently, Judge Parra-Aranguren is convinced that there are no "particular

considerations militating in favour of an examination of the application of Article XX,

paragraph 1 (d), before turning to Article X, paragraph 1". On the contrary, there are strong

considerations in favour of not doing so. The second sentence of paragraph 125 (1) of the

Judgment dismisses the claim presented by Iran because the Court came to the

conclusion that the United States had not violated Article X, paragraph 1, of the

1955 Treaty. In the opinion of Judge Parra-Aranguren, that is the end of the story.

Therefore he concluded that the Court did not have jurisdiction to examine the defences

advanced by the United States on the basis of Article XX, paragraph 1 (d), to justify its

hypothetical violation of Article X, paragraph 1, of the 1955 Treaty.

Separate opinion of Judge Kooijmans

Judge Kooijmans has voted in favour of the dispositif since he agreed with its substance.

He is, however, of the view that the Court's finding that the actions of the United States

against the oil platforms cannot be justified as measures necessary to protect its essential

security interests is not part of the decision on the claim and therefore should not have

found a place in the dispositif. That creates the hazardous precedent of an obiter dictum in

the operative part of a judgment.

In his separate opinion Judge Kooijmans first gives a more detailed overview of the factualcontext than is presented in the Judgment.

He then deals with the substance of the dispute before the Court, which deals with the

question whether the United States violated its obligation under Article X, paragraph 1, of

the 1955 Treaty concerning freedom of commerce, and not whether it used force in breach

of the United Nations Charter and customary law.

He is of the view that Article XX, paragraph 1 (d), of the 1955 Treaty enabling the parties to

take measures necessary to protect their essential security interests, is not an exoneration

clause but a freestanding provision and that the Court therefore correctly concluded that it

was free to choose whether it would first deal with Article X, or with Article XX,

paragraph 1 (d). But once the Court had found that the United States could not invoke

Article XX, it had to decide the case on grounds material to Article X, paragraph 1, itself.

Its conclusion with regard to Article XX, paragraph 1 (d), became irrelevant for the

disposition on the claim and therefore should not have found a place in the operative part

of the Judgment.

Judge Kooijmans also dissociates himself from the way in which the Court puts the

measures, invoked by the United States as "necessary to protect its essential security

interests", directly to the test of the general rules of law on the use of force including theright to self-defence, thereby misinterpreting the scope of its jurisdiction.



Article XX, paragraph 1 (d), of the Treaty "as interpreted in the light of international law on

the use of force". He considers that this pronouncement has no place in the Judgment,

much less in the operative part thereof.

Judge Buergenthal believes that the Court's Judgment, as it relates to Article XX,

paragraph 1 (d), is seriously flawed for the following 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 process, which does not allow the Court

to deal with a subject - here Article XX, paragraph 1 (d) - in the dispositif 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 resolution clause - Article XXI, paragraph 2 - of the 1955 Treaty, that clause

being 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 interpretation of that Article in light of the international law on the use of

force exceeded its jurisdiction. Finally, Judge Buergenthal considers that the manner in

which the Court analyses the evidence bearing on its application of Article XX,

paragraph 1 (d), is seriously flawed.

Dissenting opinion of Judge Elaraby

Judge Elaraby voted against the first paragraph of the dispositif, essentially dissenting on

three points.

First, the Court had jurisdiction to rule upon the legality of the use of force. Particularly that

the Court held that the United States use of force cannot be considered as legitimate self-defence in conformity with the "criteria applicable to the question" which the Court

identified as "the provisions of the Charter of the United Nations and customary

international law". United States action amounted to armed reprisals and their illegality as

such should have been noted. The Court missed an opportunity to reaffirm and clarify the

law on the use of force in all its manifestations.

Second, the Court's refusal to uphold Iran's claim of a violation of Article X, paragraph 1,

was based on unsound premises in facts and in law. What is relevant is not whether the

targeted platforms were producing oil at the time of the attacks, but rather whether Iran as

a whole was producing oil and exporting it to the United States. The test is whether the

freedom of commerce between the territories of the two Parties had been prejudiced. Once

the embargo was imposed, indirect commerce was allowed and in fact continued. The

ordinary meaning of the Treaty in its context supports the argument that its purview covers

commerce in a broad sense. Also, Article X, paragraph 1, does not exclude such indirect

commerce. The ten days between the first attack and the imposition of the embargo would

have sufficed to declare that the freedom of commerce was prejudiced. Hence, the

obligation emanating from Article X, paragraph 1, was breached.

Third, the Court was right in examining Article XX, paragraph 1 (d), before Article X,paragraph 1. It had jurisdiction to enhance its contribution to the progressive development

of the law by ruling more exhaustively on the use of force.



Separate opinion of Judge Owada

Judge Owada concurs in the final conclusion of the Court that neither the claims of the

Applicant nor the counter-claim of the Respondent can be upheld, but he is not in a

position to agree to all the points in the dispositif nor with all the reasons leading to the

conclusions. For this reason Judge Owada attaches his separate opinion, focusing only on

some salient points.

First, on the question of the basis of the decision of the Court, Judge Owada takes the

view that the Court should have examined Article X, paragraph 1, prior to Article XX,

paragraph 1 (d). Article XX, paragraph 1 (d), constitutes a defence on the merits of the

claims of the Applicant on Article X, paragraph 1, and should for that reason be considered

only if and when the Court finds that there has been a breach of Article X, paragraph 1.

The Court cannot freely choose the ground upon which to pass judgment when its

jurisdiction is limited to the examination of Article X, paragraph 1.

Second, on the question of the scope of Article X, paragraph 1, Judge Owada is in general

agreement with the Judgment, but makes the point that the term "freedom of commerce"

as used in the 1955 Treaty refers to "unimpeded flow of mercantile transaction in goods

and services between the territories of the Contracting Parties" and cannot cover the

activities of the oil platforms. Apart from the factual ground on which the Judgment is

based, the Court for this reason cannot uphold the claim that the "freedom of commerce"

in Article X, paragraph 1, has been breached.

Third, on the question of the scope of Article XX, paragraph 1 (d), which in his view the

Court does not have to take up in view of its finding on Article X, paragraph 1,

Judge Owada is of the opinion that the interpretation and application of Article XX,paragraph 1 (d), and the question of the self-defence under international law in general are

not synonymous and that the latter as such is not the task before the Court. The

examination of the latter problem by the Court should be confined to what is necessary for

the interpretation and application of Article XX, paragraph 1 (d), in view of the limited

scope of the jurisdiction of the Court.

Finally, Judge Owada raises the question of asymmetry in the production of evidence in

this case, which leads to a difficult situation for the Court in verifying the facts involved.

While accepting the basic principle on evidence, actori incumbit onus probandi,

Judge Owada would have liked to see the Court engage in much more in-depth probing

into the problem of ascertaining the facts of the case, if necessary proprio motu.

Separate opinion of Judge Simma

Judge Simma starts his separate opinion by explaining why he voted in favour of the first

part of the dispositif of the Judgment even though he agrees with the Court's treatment of

only one of the two issues dealt with therein, namely that of the alleged security interests of

the United States measured against the international law on self-defence. As to the

remaining parts of the dispositif, Judge Simma can neither agree with the Court's decision

that the United States attacks on the oil platforms ultimately did not infringe upon Iran'sTreaty right to respect for its freedom of commerce with the United States, nor does Judge

Simma consider that the way in which the Court disposed of the so-called "generic"



counter-claim of the United States was correct. Rather, in Judge Simma's view this

counter-claim ought to have been upheld. Regarding the part of the dispositifdevoted to

this counter-claim, Judge Simma thus had no choice but to dissent. The reason why Judge

Simma did not also dissent from the first part of the dispositif (and prefers to call his

opinion a "separate" and not a "dissenting" one) even though he concurs with the Court's

decisions on only the first of the two issues decided therein, is to be seen in a

consideration of judicial policy: Judge Simma welcomes that the Court has taken the

opportunity, offered by United States reliance on Article XX of the 1955 Treaty, to state its

view on the legal limits on the use of force at the moment when these limits find

themselves under the greatest stress. Although Judge Simma is of the view that the Court

has fulfilled what is nothing but its duty in this regard with inappropriate restraint,

Judge Simma does not want to disassociate himself from what after all does result in a

confirmation, albeit too hesitant, of the jus cogens of the United Nations Charter.

Since matters relating to the United States use of force are at the heart of the case,

Judge Simma finds the Judgment's approach of dealing with Article XX before turning to

Article X of the 1955 Treaty acceptable. On the other hand, what the Court should have

had the courage to do was to restate, and thus to reconfirm, the fundamental principles of

the law of the United Nations as well as customary international law on the use of force in

a way conforming to the standard of vigour and clarity set by the Court already in the Corfu

Channel case of half a century ago. This, unfortunately, the Court has not done.

In Judge Simma's view the Court could have clarified what kind of defensive

countermeasures would have been available to the United States: in Judge Simma's view,

hostile military action not reaching the threshold of an armed attack within the meaning ofArticle 51 of the United Nations Charter, like that by Iran in the present case, may be

countered by proportionate and immediate defensive measures equally of a military

character. However, the United States actions against the oil platforms did not qualify as

such proportionate countermeasures.

In Judge Simma's view, the Court's treatment of Article X on freedom of commerce

between the territories of the Parties follows a step-by-step approach which he considers

correct up to a certain point but which then turns into wrong directions: first, the platforms

attacked in October 1987 could not lose their protection under Article X through being

temporarily inoperative because, according to Judge Simma, the freedom under the Treaty

embraces also the possibility of commerce in the future. Secondly, according to Judge

Simma, the indirect commerce in Iranian oil going on during the time of the United States

embargo is also to be regarded as protected by the Treaty.

Turning to the United States counter-claim, Judge Simma finds the way in which the Court

has dealt with it blatantly inadequate, particularly with regard to the so-called generic

counter-claim which, in Judge Simma's view, should have been upheld. Judge Simma then

sets out to develop the arguments, put forward somewhat unpersuasively by the United

States, in support of the generic counter-claim. The fact that in the present instance (unlikein the Nicaragua case), it was two States which created the situation adverse to neutral

shipping in the Gulf, is not determinant. According to Judge Simma, all that matters with



regard to the generic counter-claim is that Iran was responsible for a significant portion of

the actions impairing the freedom of commerce and navigation between the two countries;

it is not necessary to determine the particular extent to which Iran was responsible for

them. Neither could it be argued that all the impediments to free commerce and navigation

which neutral ships faced in the Gulf were caused by legitimate acts of war carried out by

the two belligerents, and that therefore neutral shipping entered the maritime areas

affected by the Gulf war at its own risk. In Judge Simma's view, Iran's actions constituted a

violation of Article X of the 1955 Treaty; an impediment on the freedom of commerce and

navigation caused by those actions is evidenced by the increase in labour, insurance, and

other costs resulting for the participants in commerce between the countries during the

relevant period.

Judge Simma then turns to refuting the argument that the acts alleged to have constituted

an impediment to the freedom of commerce and navigation under the Treaty cannot be

attributed to Iran with certainty and that therefore it is impossible to find Iran responsible for

those acts. Judge Simma demonstrates that a principle of joint-and-several responsibility

can be developed from domestic legal systems as a general principle of law by which the

dilemma in the present case could have been overcome.

Finally, Judge Simma argues that the so-called "indispensable-third-party" doctrine

consecutively accepted and rejected by the Court's earlier jurisprudence would not have

stood in the way of accepting the United States counter-claim as well-founded.

Separate opinion of Judge Rigaux

The operative part of the Judgment comprises two points: in the second it is concluded

that the counter-claim of the United States of America must be rejected; the first is dividedinto two parts, the second of which rejects the claim of the Islamic Republic of Iran for

reparation while in the first the American attacks on the oil platforms are held not to have

satisfied the requirements of the applicable provisions of the 1955 Treaty, as interpreted in

the light of international law on the use of force.

Judge Rigaux voted in favour of the two points in the operative part, with some

reservations as to the first. The two clauses constituting it would appear inconsistent: it is a

contradiction both to hold that use of armed force against the oil platforms was unlawful

and to reject the claim for reparation for the injury caused by the unlawful act. However, the

Court's affirmation of the principle prohibiting the use of armed force except in those

situations where contemplated by international law appeared to Judge Rigaux sufficiently

important that he felt obliged to vote in favour of it, notwithstanding the refusal to uphold

Iran's rightful claim.

The reasoning supporting the rejections of the two actions contains two elements common

to them, i.e., the interpretation given to the notion of "indirect" commerce and the idea that

"future" commerce falls outside the scope of freedom of commerce. Judge Rigaux finds

those two elements debatable.

ARMED ACTIVITIES CASE (DR CONGO V. UGANDA)



On 2 November 1992, the Islamic Republic of Iran (hereinafter called "Iran") instituted

proceedings against the United States of America (hereinafter called "the United States")

in respect of a dispute "aris[ing] out of the attack [on] and destruction of three offshore oil

production complexes, owned and operated for commercial purposes by the National

Iranian Oil Company, by several warships of the United States Navy on 19 October 1987

and 18 April 1988, respectively".

In its Application, Iran contended that these acts constituted a "fundamental breach" of

various provisions of the Treaty of Amity, Economic Relations and Consular Rights

between the United States and Iran, which was signed in Tehran on 15 August 1955 and

entered into force on 16 June 1957 (hereinafter called "the 1955 Treaty"), as well as of

international law. The Application invoked, as a basis for the Court's jurisdiction,

Article XXI, paragraph 2, of the 1955 Treaty.

Within the time-limit fixed for the filing of the Counter-Memorial, the United States raised a

preliminary objection to the jurisdiction of the Court pursuant to Article 79, paragraph 1, of

the Rules of Court of 14 April 1978. By a Judgment dated 12 December 1996 the Court

rejected the preliminary objection of the United States according to which the 1955 Treaty

did not provide any basis for the jurisdiction of the Court and found that it had jurisdiction,

on the basis of Article XXI, paragraph 2, of the 1955 Treaty, to entertain the claims made

by Iran under Article X, paragraph 1, of that Treaty.

The United States Counter-Memorial included a counter-claim concerning "Iran's actions in

the Gulf during 1987-88 which, among other things, involved mining and other attacks on

U.S.-flag or U.S.-owned vessels". By an Order of 10 March 1998 the Court held that this

counter-claim was admissible as such and formed part of the proceedings.Public sittings were held between 17 February and 7 March 2003, at which the Court

heard the oral arguments and replies on the claim of Iran and on the counter-claim of the

United States. At those oral proceedings, the following final submissions were presented

by the Parties:

On behalf of the Government of Iran,

at the hearing of 3 March 2003, on the claim of Iran:



1. That in attacking and destroying on 19 October 1987 and 18 April 1988 the oil platforms

referred to in Iran's Application, the United States breached its obligations to Iran under

Article X, paragraph 1, of the Treaty of Amity, and that the United States bears

responsibility for the attacks; and

2. That the United States is accordingly under an obligation to make full reparation to Iran

for the violation of its international legal obligations and the injury thus caused in a form

and amount to be determined by the Court at a subsequent stage of the proceedings, the

right being reserved to Iran to introduce and present to the Court in due course a precise

evaluation of the reparation owed by the United States; and3. Any other remedy the Court may deem appropriate";

at the hearing of 7 March 2003, on the counter-claim of the United States:





That the United States counter-claim be dismissed."

On behalf of the Government of the United States,

at the hearing of 5 March 2003, on the claim of Iran and the counter-claim of the United

States:

"The United States respectfully requests that the Court adjudge and declare:

(1) that the United States did not breach its obligations to the Islamic Republic of Iran

under Article X, paragraph 1, of the 1955 Treaty between the United States and Iran; and

(2) that the claims of the Islamic Republic of Iran are accordingly dismissed.

With respect to its counter-claim, the United States requests that the Court adjudge and

declare:

(1) Rejecting all submissions to the contrary, that, in attacking vessels in the Gulf with

mines and missiles and otherwise engaging in military actions that were dangerous and

detrimental to commerce and navigation between the territories of the United States and

the Islamic Republic of Iran, the Islamic Republic of Iran breached its obligations to the

United States under Article X, paragraph 1, of the 1955 Treaty; and

(2) That the Islamic Republic of Iran is accordingly under an obligation to make full

reparation to the United States for its breach of the 1955 Treaty in a form and amount to be

determined by the Court at a subsequent stage of the proceedings."

Basis of jurisdiction and factual background (paras. 21-26)

The Court begins by pointing out that its task in the present proceedings is to determine

whether or not there have been breaches of the 1955 Treaty, and if it finds that such is thecase, to draw the appropriate consequences according to the submissions of the Parties.

The Court is seised both of a claim by Iran alleging breaches by the United States, and of

a counter-claim by the United States alleging breaches by Iran. Its jurisdiction to entertain

both the claim and the counter-claim is asserted to be based upon Article XXI,


The Court recalls that, as regards the claim of Iran, the question of jurisdiction has been

the subject of its judgment of 12 December 1996. It notes that certain questions have

however been raised between the Parties as to the precise significance or scope of that

Judgment, which will be examined below.

As to the counter-claim, the Court also recalls that it decided by its Order of 10 March 1998

to admit the counter-claim, and indicated in that Order that the facts alleged and relied on

by the United States "are capable of falling within the scope of Article X, paragraph 1, of

the 1955 Treaty as interpreted by the Court", and accordingly that "the Court has

jurisdiction to entertain the United States counter-claim in so far as the facts alleged may

have prejudiced the freedoms guaranteed by Article X, paragraph 1" (I.C.J. Reports 1998,

p. 204, para. 36). It notes that in this respect also questions have been raised between the

Parties as to the significance and scope of that ruling on jurisdiction, and these will beexamined below.



The Court points out that it is however established, by the decisions cited, that both Iran's

claim and the counter-claim of the United States can be upheld only so far as a breach or

breaches of Article X, paragraph 1, of the 1955 Treaty may be shown, even though other

provisions of the Treaty may be relevant to the interpretation of that paragraph. Article X,

paragraph 1, of the 1955 Treaty reads as follows: "Between the territories of the two High

Contracting Parties there shall be freedom of commerce and navigation."

The Court then sets out the factual background to the case, as it emerges from the

pleadings of both Parties, observing that the broad lines of this background are not

disputed, being a matter of historical record. The actions giving rise to both the claim and

the counter-claim occurred in the context of the general events that took place in the

Persian Gulf - which is an international commercial route and line of communication of

major importance - between 1980 and 1988, in particular the armed conflict that opposed

Iran and Iraq. In 1984, Iraq commenced attacks against ships in the Persian Gulf, notably

tankers carrying Iranian oil. These were the first incidents of what later became known as

the "Tanker War": in the period between 1984 and 1988, a number of commercial vessels

and warships of various nationalities, including neutral vessels, were attacked by aircraft,

helicopters, missiles or warships, or struck mines in the waters of the Persian Gulf. Naval

forces of both belligerent parties were operating in the region, but Iran has denied

responsibility for any actions other than incidents involving vessels refusing a proper

request for stop and search. The United States attributes responsibility for certain incidents

to Iran, whereas Iran suggests that Iraq was responsible for them.

The Court takes note that two specific attacks on shipping are of particular relevance in

this case. On 16 October 1987, the Kuwaiti tankerSea Isle City, reflagged to the UnitedStates, was hit by a missile near Kuwait harbour. The United States attributed this attack to

Iran, and three days later, on 19 October 1987, it attacked two Iranian offshore oil

production installations in the Reshadat ["Rostam"] complex. On 14 April 1988, the warship

USS Samuel B. Roberts struck a mine in international waters near Bahrain while returning

from an escort mission; four days later the United States employed its naval forces to

attack and destroy simultaneously the Nasr ["Sirri"] and Salman ["Sassan"] complexes.

These attacks by United States forces on the Iranian oil platforms are claimed by Iran to

constitute breaches of the 1955 Treaty; and the attacks on the Sea Isle City and the

USS Samuel B. Roberts were invoked in support of the United States' claim to act in self-

defence. The counter-claim of the United States is however not limited to those attacks.

The United States request to dismiss Iran's claim because of Iran's allegedly unlawful

conduct (paras. 27-30)

The Court first considers a contention to which the United States appears to have

attributed a certain preliminary character. The United States asks the Court to dismiss

Iran's claim and refuse it the relief it seeks, because of Iran's allegedly unlawful conduct,

i.e., its violation of the 1955 Treaty and other rules of international law relating to the use of

force.The Court notes that in order to make the finding requested by the United States it would

have to examine Iranian and United States actions in the Persian Gulf during the relevant



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. Furthermore, as the United States itself recognizes in

its Rejoinder, "The self-defense issues presented in this case raise matters of the highest

importance to all members of the international community", and both Parties are agreed as

to the importance of the implications of the case in the field of the use of force, even

though they draw opposite conclusions from this observation. The Court therefore

considers that, to the extent that its jurisdiction under Article XXI, paragraph 2, of the 1955

Treaty authorizes it to examine and rule on such issues, it should do so.

The question of the relationship between self-defence and Article XX, paragraph 1 (d), of

the Treaty has been disputed between the Parties, in particular as regards the jurisdiction

of the Court. In the view of the Court, the matter is one of interpretation of the Treaty, and

in particular of Article XX, paragraph 1 (d). The question is whether the parties to the 1955

Treaty, when providing therein that it should "not preclude the application of measures . . .

necessary to protect [the] essential security interests" of either party, intended that such

should be the effect of the Treaty even where those measures involved a use of armed

force; and if so, whether they contemplated, or assumed, a limitation that such use would

have to comply with the conditions laid down by international law. The Court considers that

its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty to decide any question ofinterpretation 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.

The Court therefore examines first the application of Article XX, paragraph 1 (d), of the

1955 Treaty, which in the circumstances of this case, as explained above, involves the

principle of the prohibition in international law of the use of force, and the qualification to it

constituted by the right of self-defence. On the basis of that provision, a party to the Treaty

may be justified in taking certain measures which it considers to be "necessary" for the

protection of its essential security interests. In the present case, the question whether the

measures taken were "necessary" overlaps with the question of their validity as acts of

self-defence.

In this connection, the Court notes that it is not disputed between the Parties that neutral

shipping in the Persian Gulf was caused considerable inconvenience and loss, and grave

damage, during the Iran-Iraq war. It notes also that this was to a great extent due to the

presence of mines and minefields laid by both sides. The Court has no jurisdiction toenquire into the question of the extent to which Iran and Iraq complied with the

international legal rules of maritime warfare. It can however take note of these



circumstances, regarded by the United States as relevant to its decision to take action

against Iran which it considered necessary to protect its essential security interests.

Nevertheless, the legality of the action taken by the United States has to be judged by

reference to Article XX, paragraph 1 (d), of the 1955 Treaty, in the light of international law

on the use of force in self-defence.

The Court observes that the United States has never denied that its actions against the

Iranian platforms amounted to a use of armed force. The Court indicates that it will

examine whether each of these actions met the conditions of Article XX, paragraph 1 (d),

as interpreted by reference to the relevant rules of international law.

Attack of 19 October 1987 on Reshadat (paras. 46-64)

The Court recalls that the first installation attacked, on 19 October 1987, was the Reshadat

complex, which was also connected by submarine pipeline to another complex, named

Resalat. At the time of the United States attacks, these complexes were not producing oil

due to damage inflicted by prior Iraqi attacks. Iran has maintained that repair work on the

platforms was close to completion in October 1987. The United States has however

challenged this assertion. As a result of the attack, one platform was almost completely

destroyed and another was severely damaged and, according to Iran, production from the

Reshadat and Resalat complexes was interrupted for several years.

The Court first concentrates on the facts tending to show the validity or otherwise of the

claim to exercise the right of self-defence. In its communication to the Security Council at

the time of the attack, the United States based this claim on the existence of "a series of

unlawful armed attacks by Iranian forces against the United States, including laying mines

in international waters for the purpose of sinking or damaging United States flag ships, andfiring on United States aircraft without provocation"; it referred in particular to a missile

attack on the Sea Isle City as being the specific incident that led to the attack on the

Iranian platforms. Before the Court, it has based itself more specifically on the attack on

the Sea Isle City, but has continued to assert the relevance of the other attacks.

The Court points out that 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. 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 for which Iran was responsible; and that those attacks

were of such a nature as to be qualified as "armed attacks" within the meaning of that

expression in Article 51 of the United Nations Charter, and as understood in customary law

on the use of force. The United States must also show that its actions were necessary and

proportional to the armed attack made on it, and that the platforms were a legitimate

military target open to attack in the exercise of self-defence.

Having examined with great care the evidence and arguments presented on each side, the

Court finds that the evidence indicative of Iranian responsibility for the attack on the Sea

Isle City, is not sufficient to support the contentions of the United States. The conclusion towhich the Court has come on this aspect of the case is thus that the burden of proof of the



existence of an armed attack by Iran on the United States, in the form of the missile attack

on the Sea Isle City, has not been discharged.

In its notification to the Security Council, and before the Court, the United States has

however also asserted that the Sea Isle City incident was "the latest in a series of such

missile attacks against United States flag and other non-belligerent vessels in Kuwaiti

waters in pursuit of peaceful commerce".

The Court finds that even taken cumulatively, and reserving the question of Iranian

responsibility, these incidents do not seem to the Court to constitute an armed attack on

the United States.

Attacks of 18 April 1988 on Nasr and Salman and "Operation Praying Mantis" (paras. 65-

72)

The Court recalls that the second occasion on which Iranian oil installations were attacked

was on 18 April 1988, with the attacks on the Salman and Nasr complexes. Iran states that

the attacks caused severe damage to the production facilities of the platforms; that the

activities of the Salman complex were totally interrupted for four years, its regular

production being resumed only in September 1992, and reaching a normal level in 1993;

and that activities in the whole Nasr complex were interrupted and did not resume until

nearly four years later.

The nature of the attacks on the Salman and Nasr complexes, and their alleged

justification, was presented by the United States to the United Nations Security Council in a

letter from the United States Permanent Representative of 18 April 1988, which stated inter

alia that the United States had "exercised their inherent right of self-defence under

international law by taking defensive action in response to an attack by the IslamicRepublic of Iran against a United States naval vessel in international waters of the

Persian Gulf", namely the mining of the USS Samuel B. Roberts; according to the United

States, "This [was] but the latest in a series of offensive attacks and provocations Iranian

naval forces have taken against neutral shipping in the international waters of the Persian

Gulf."

The Court notes that the attacks on the Salman and Nasr platforms were not an isolated

operation, aimed simply at the oil installations, as had been the case with the attacks of

19 October 1987; they formed part of a much more extensive military action, designated

"Operation Praying Mantis", conducted by the United States against what it regarded as

"legitimate military targets"; armed force was used, and damage done to a number of

targets, including the destruction of two Iranian frigates and other Iranian naval vessels

and aircraft.

As in the case of the attack on the Sea Isle City, the first question is whether the United

States has discharged the burden of proof that the USSSamuel B. Roberts was the victim

of a mine laid by Iran. The Court notes that mines were being laid at the time by both

belligerents in the Iran-Iraq war, so that evidence of other minelaying operations by Iran is

not conclusive as to responsibility of Iran for this particular mine. The main evidence thatthe mine struck by the USS Samuel B. Roberts was laid by Iran was the discovery of

moored mines in the same area, bearing serial numbers matching other Iranian mines, in



The Court thus concludes from the foregoing that the actions carried out by United States

forces against Iranian oil installations on 19 October 1987 and 18 April 1988 cannot be

justified, under Article XX, paragraph 1 (d), of the 1955 Treaty, as being measures

necessary to protect the essential security interests of the United States, since those

actions constituted recourse to armed force not qualifying, under international law on the

question, as acts of self-defence, and thus did not fall within the category of measures

contemplated, upon its correct interpretation, by that provision of the Treaty.

Iran's claim under Article X, paragraph 1, of the 1955 Treaty (paras. 79-99)

Having satisfied itself that the United States may not rely, in the circumstances of the case,

on the defence to the claim of Iran afforded by Article XX, paragraph 1 (d), of the

1955 Treaty, the Court turns to that claim, made under Article X, paragraph 1, of that

Treaty, which provides that "Between the territories of the two High Contracting Parties

there shall be freedom of commerce and navigation."

In its Judgment of 12 December 1996 on the preliminary objection of the United States, the

Court had occasion, for the purposes of ascertaining and defining the scope of its

jurisdiction, to interpret a number of provisions of the 1955 Treaty, including Article X,

paragraph 1. It noted that the Applicant had not alleged that any military action had

affected its freedom of navigation, so that the only question to be decided was "whether

the actions of the United States complained of by Iran had the potential to affect freedom

of commerce'" as guaranteed by that provision (I.C.J. Reports 1996 (II), p. 817, para. 38).

After examining the contentions of the Parties as to the meaning of the word, the Court

concluded that "it would be a natural interpretation of the word commerce' in Article X,

paragraph 1, of the Treaty of 1955 that it includes commercial activities in general - notmerely the immediate act of purchase and sale, but also the ancillary activities integrally

related to commerce" (ibid., p. 819, para. 49).

In that decision, the Court also observed that it did not then have to enter into the question

whether Article X, paragraph 1, "is restricted to commerce between' the Parties" (I.C.J.

Reports 1996 (II), p. 817, para. 44). However it is now common ground between the

Parties that that provision is in terms limited to the protection of freedom of commerce

"between the territories of the two High Contracting Parties". The Court observes that it is

oil exports from Iran to the United States that are relevant to the case, not such exports in

general.

In the 1996 Judgment, the Court further emphasized that "Article X, paragraph 1, of the

Treaty of 1955 does not strictly speaking protect commerce' but freedom of commerce'",

and continued: "Unless such freedom is to be rendered illusory, the possibility must be

entertained that it could actually be impeded as a result of acts entailing the destruction of

goods destined to be exported, or capable of affecting their transport and storage with a

view to export" (ibid., p. 819, para. 50). The Court also noted that "Iran's oil production, a

vital part of that country's economy, constitutes an important component of its foreign

trade", and that "On the material now before the Court, it is . . . not able to determine if andto what extent the destruction of the Iranian oil platforms had an effect upon the export

trade in Iranian oil . . ." (ibid., p. 820, para. 51). The Court concludes by observing that if,



at the present stage of the proceedings, it were to find that Iran had established that such

was the case, the claim of Iran under Article X, paragraph 1, could be upheld.

Before turning to the facts and to the details of Iran's claim, the Court mentions that the

United States has not succeeded, to the satisfaction of the Court, in establishing that the

limited military presence on the platforms, and the evidence as to communications to and

from them, could be regarded as justifying treating the platforms as military installations

(see above). For the same reason, the Court is unable to regard them as outside the

protection afforded by Article X, paragraph 1, of the 1955 Treaty, as alleged by the United

States.

The Court in its 1996 Judgment contemplated the possibility that freedom of commerce

could be impeded not only by "the destruction of goods destined to be exported", but also

by acts "capable of affecting their transport and their storage with a view to export" (I.C.J.

Reports 1996 (II), p. 819, para. 50). In the view of the Court, the activities of the platforms

are to be regarded, in general, as commercial in nature; it does not, however, necessarily

follow that any interference with such activities involves an impact on the freedom of

commerce between the territories of Iran and the United States.

The Court considers that where a State destroys another State's means of production and

transport of goods destined for export, or means ancillary or pertaining to such production

or transport, there is in principle an interference with the freedom of international

commerce. In destroying the platforms, whose function, taken as a whole, was precisely to

produce and transport oil, the military actions made commerce in oil, at that time and from

that source, impossible, and to that extent prejudiced freedom of commerce. While the oil,

when it left the platform complexes, was not yet in a state to be safely exported, the factremains that it could be already at that stage destined for export, and the destruction of the

platform prevented further treatment necessary for export. The Court therefore finds that

the protection of freedom of commerce under Article X, paragraph 1, of the 1955 Treaty

applied to the platforms attacked by the United States, and the attacks thus impeded Iran's

freedom of commerce. However, the question remains whether there was in this case an

interference with freedom of commerce "between the territories of the High Contracting

Parties".

The United States in fact contends further that there was in any event no breach of

Article X, paragraph 1, inasmuch as, even assuming that the attacks caused some

interference with freedom of commerce, it did not interfere with freedom of commerce

"between the territories of the two High Contracting Parties". First, as regards the attack of

19 October 1987 on the Reshadat platforms, it observes that the platforms were under

repair as a result of an earlier attack on them by Iraq; consequently, they were not

engaged in, or contributing to, commerce between the territories of the Parties. Secondly,

as regards the attack of 18 April 1988 on the Salman and Nasr platforms, it draws attention

to United States Executive Order 12613, signed by President Reagan on 29 October 1987,

which prohibited, with immediate effect, the import into the United States of most goods(including oil) and services of Iranian origin. As a consequence of the embargo imposed by



this Order, there was, it is suggested, no commerce between the territories of the Parties

that could be affected, and consequently no breach of the Treaty protecting it.

Iran has asserted, and the United States has not denied, that there was a market for

Iranian crude oil directly imported into the United States up to the issuance of Executive

Order 12613 of 29 October 1987. Thus Iranian oil exports did up to that time constitute the

subject of "commerce between the territories of the High Contracting Parties" within the

meaning of Article X, paragraph 1, of the 1955 Treaty.

The Court observes that at the time of the attack of 19 October 1987 no oil whatsoever

was being produced or processed by the Reshadat and Resalat platforms, since these had

been put out of commission by earlier Iraqi attacks. While it is true that the attacks caused

a major setback to the process of bringing the platforms back into production, there was at

the moment of the attacks on these platforms no ongoing commerce in oil produced or

processed by them.

The Court further observes that the embargo imposed by Executive Order 12613 was

already in force when the attacks on the Salman and Nasr platforms were carried out; and

that, it has not been shown that the Reshadat and Resalat platforms would, had it not been

for the attack of 19 October 1987, have resumed production before the embargo was

imposed. The Court must therefore consider the significance of that Executive Order for

the interpretation and application of Article X, paragraph 1, of the 1955 Treaty.

The Court sees no reason to question the view sustained by Iran that, over the period

during which the United States embargo was in effect, petroleum products were reaching

the United States, in considerable quantities, that were derived in part from Iranian crude

oil. It points out, however, that what the Court has to determine is not whether somethingthat could be designated "Iranian" oil entered the United States, in some form, during the

currency of the embargo; it is whether there was "commerce" in oil between the territories

of Iran and the United States during that time, within the meaning given to that term in the

1955 Treaty.

In this respect, what seems to the Court to be determinative is the nature of the successive

commercial transactions relating to the oil, rather than the successive technical processes

that it underwent. What Iran regards as "indirect" commerce in oil between itself and the

United States involved a series of commercial transactions: a sale by Iran of crude oil to a

customer in Western Europe, or some third country other than the United States; possibly

a series of intermediate transactions; and ultimately the sale of petroleum products to a

customer in the United States. This is not "commerce" between Iran and the United States,

but commerce between Iran and an intermediate purchaser; and "commerce" between an

intermediate seller and the United States.

The Court thus concludes, with regard to the attack of 19 October 1987 on the Reshadat

platforms, that there was at the time of those attacks no commerce between the territories

of Iran and the United States in respect of oil produced by those platforms and the Resalat

platforms, inasmuch as the platforms were under repair and inoperative; and that theattacks cannot therefore be said to have infringed the freedom of commerce in oil between

the territories of the High Contracting Parties protected by Article X, paragraph 1, of the



1955 Treaty, particularly taking into account the date of entry into force of the embargo

effected by Executive Order 12613. The Court notes further that, at the time of the attacks

of 18 April 1988 on the Salman and Nasr platforms, all commerce in crude oil between the

territories of Iran and the United States had been suspended by that Executive Order, so

that those attacks also cannot be said to have infringed the rights of Iran under Article X,


The Court is therefore unable to uphold the submissions of Iran, that in carrying out those

attacks the United States breached its obligations to Iran under Article X, paragraph 1, of

the 1955 Treaty. In view of this conclusion, the Iranian claim for reparation cannot be

upheld.

*

The Court furthermore concludes that, in view of this finding on the claim of Iran, it

becomes unnecessary to examine the argument of the United States (referred to above)

that Iran might be debarred from relief on its claim by reason of its own conduct.

United States Counter-Claim (paras. 101-124)

The Court recalls that the United States has filed a counter-claim against Iran and refers to

the corresponding final submissions presented by the United States in the Counter-

Memorial.

The Court further recalls that, by an Order of 10 March 1998 it found "that the counter-

claim presented by the United States in its Counter-Memorial is admissible as such and

forms part of the current proceedings."

Iran's objections to the Court's jurisdiction and to the admissibility of the United States

counter-claim (paras. 103-116)Iran maintains that the Court's Order of 10 March 1998 did not decide all of the preliminary

issues involved in the counter-claim presented by the United States; the Court only ruled

on the admissibility of the United States counter-claim in relation to Article 80 of the Rules

of Court, declaring it admissible "as such", whilst reserving the subsequent procedure for

further decision. Iran contends that the Court should not deal with the merits of the

counter-claim, presenting five objections.

The Court considers that it is open to Iran at this stage of the proceedings to raise

objections to the jurisdiction of the Court to entertain the counter-claim or to its

admissibility, other than those addressed by the Order of 10 March 1998. It points out that

this Order does not address any question relating to jurisdiction and admissibility not

directly linked to Article 80 of the Rules. The Court indicates that it will therefore proceed to

address the objections now presented by Iran.

The Court finds that it cannot uphold the first objection of Iran to the effect that the Court

cannot entertain the counter-claim of the United States because it was presented without

any prior negotiation, and thus does not relate to a dispute "not satisfactorily adjusted by

diplomacy" as contemplated by Article XXI, paragraph 2, of the 1955 Treaty. The Court

points out that it is established that a dispute has arisen between Iran and the UnitedStates over the issues raised in the counter-claim; and that it is sufficient for the Court to



satisfy itself that the dispute was not satisfactorily adjusted by diplomacy before being

submitted to the Court.

The Court finds that the second objection of Iran, according to which the United States is in

effect submitting a claim on behalf of third States or of foreign entities and has no title to do

so, is devoid of any object and cannot be upheld The Court recalls that the first submission

presented by the United States in regard to its counter-claim simply requests the Court to

adjudge and declare that the alleged actions of Iran breached its obligations to the United

States, without mention of any third States.

In its third objection, Iran contends that the United States counter-claim extends beyond

Article X, paragraph 1, of the 1955 Treaty, the only text in respect of which the Court has

jurisdiction, and that the Court cannot therefore uphold any submissions falling outside the

terms of paragraph 1 of that Article. The Court notes that the United States, in presenting

its final submissions on the counter-claim, no longer relies, as it did at the outset, on

Article X of the 1955 Treaty as a whole, but on paragraph 1 of that Article only, and,

furthermore, recognizes the territorial limitation of Article X, paragraph 1, referring

specifically to the military actions that were allegedly "dangerous and detrimental to

commerce and navigation between the territories of the United States and the Islamic

Republic of Iran" (emphasis added) rather than, generally, to "military actions that were

dangerous and detrimental to maritime commerce". By limiting the scope of its counter-

claim in its final submissions, the United States has deprived Iran's third objection of any

object, and the Court finds that it cannot therefore uphold it.

In its fourth objection Iran maintains that "the Court has jurisdiction to rule only on counter-

claims alleging a violation by Iran of freedom of commerce as protected under Article X (1),and not on counter-claims alleging a violation of freedom of navigation as protected by the

same paragraph". The Court notes nevertheless, that Iran seems to have changed its

position and recognized that the counter-claim could be founded on a violation of freedom

of navigation. The Court further observes that it also concluded in 1998 that it had

jurisdiction to entertain the United States Counter-Claim in so far as the facts alleged may

have prejudiced the freedoms (in the plural) guaranteed by Article X, paragraph 1, of the

1955 Treaty, i.e., freedom of commerce and freedom of navigation. This objection of Iran

thus cannot be upheld by the Court.

Iran presents one final argument against the admissibility of the United States counter-

claim, which however it concedes relates only to part of the counter-claim. Iran contends

that the United States has broadened the subject-matter of its claim beyond the

submissions set out in its counter-claim by having, belatedly, added complaints relating to

freedom of navigation to its complaints relating to freedom of commerce, and by having

added new examples of breaches of freedom of maritime commerce in its Rejoinder in

addition to the incidents already referred to in the Counter-Claim presented with the

Counter-Memorial.

The Court observes that the issue raised by Iran is whether the United States is presentinga new claim. The Court is thus faced with identifying what is "a new claim" and what is

merely "additional evidence relating to the original claim". It is well established in the



Court's jurisprudence that the parties to a case cannot in the course of proceedings

"transform the dispute brought before the Court into a dispute that would be of a different

nature." The Court recalls that it has noted in its Order of 10 March 1998 in the present

case that the Counter-Claim alleged "attacks on shipping, the laying of mines, and other

military actions said to be dangerous and detrimental to maritime commerce'" (I.C.J.

Reports 1998, p. 204, para. 36). Subsequently to its Counter-Memorial and Counter-Claim

and to that Order of the Court, the United States provided detailed particulars of further

incidents substantiating, in its contention, its original claims. In the view of the Court, the

United States has not, by doing so, transformed the subject of the dispute originally

submitted to the Court, nor has it modified the substance of its counter-claim, which

remains the same. The Court therefore cannot uphold the objection of Iran.

Merits of the United States Counter-Claim (paras. 119-123)

Having disposed of all objections of Iran to its jurisdiction over the counter-claim, and to the

admissibility thereof, the Court considers the counter-claim on its merits. It points out that,

to succeed on its counter-claim, the United States must show that: (a) its freedom of

commerce or freedom of navigation between the territories of the High Contracting Parties

to the 1955 Treaty was impaired; and that (b) the acts which allegedly impaired one or both

of those freedoms are attributable to Iran.

The Court recalls that Article X, paragraph 1, of the 1955 Treaty does not protect, as

between the Parties, freedom of commerce or freedom of navigation in general. As already

noted above, the provision of that paragraph contains an important territorial limitation. In

order to enjoy the protection provided by that text, the commerce or the navigation is to be

between the territories of the United States and Iran. The United States bears the burdenof proof that the vessels which were attacked were engaged in commerce or navigation

between the territories of the United States and Iran.

The Court then examines each of Iran's alleged attacks, in chronological order, from the

standpoint of this requirement of the 1955 Treaty and concludes that none of the vessels

described by the United States as being damaged by Iran's alleged attacks was engaged

in commerce or navigation "between the territories of the two High Contracting Parties".

Therefore, the Court concludes that there has been no breach of Article X, paragraph 1, of

the 1955 Treaty in any of the specific incidents involving these ships referred to in the

United States pleadings.

The Court takes note that the United States has also presented its claim in a generic

sense. It has asserted that as a result of the cumulation of attacks on US and other

vessels, laying mines and otherwise engaging in military actions in the Persian Gulf, Iran

made the Gulf unsafe, and thus breached its obligation with respect to freedom of

commerce and freedom of navigation which the United States should have enjoyed under

Article X, paragraph 1, of the 1955 Treaty.

The Court observes that, while it is a matter of public record that as a result of the Iran-Iraq

war navigation in the Persian Gulf involved much higher risks, that alone is not sufficient forthe Court to decide that Article X, paragraph 1, was breached by Iran. It is for the United

States to show that there was an actual impediment to commerce or navigation between



the territories of the two High Contracting Parties. However, the United States has not

demonstrated that the alleged acts of Iran actually infringed the freedom of commerce or of

navigation between the territories of the United States and Iran. The Court also notes that

the examination above of specific incidents shows that none of them individually involved

any interference with the commerce and navigation protected by the 1955 Treaty;

accordingly the generic claim of the United States cannot be upheld.

The Court has thus found that the counter-claim of the United States concerning breach by

Iran of its obligations to the United States under Article X, paragraph 1, of the 1955 Treaty,

whether based on the specific incidents listed, or as a generic claim, must be rejected;

there is therefore no need for it to consider, under this head, the contested issues of

attribution of those incidents to Iran. In view of the foregoing, the United States claim for

reparation cannot be upheld.

*

The full text of the operative paragraph (para. 125) reads as follows:

"For these reasons,

The court,

(1) By fourteen votes to two,

Finds that the actions of the United States of America against Iranian oil platforms on



paragraph 1 (d), of the 1955 Treaty of Amity, Economic Relations and Consular Rights

between the United States of America and Iran, as interpreted in the light of internationallaw on the use of force; finds further that the Court cannot however uphold the submission

of the Islamic Republic of Iran that those actions constitute a breach of the obligations of

the United States of America under Article X, paragraph 1, of that Treaty, regarding

freedom of commerce between the territories of the parties, and that, accordingly, the

claim of the Islamic Republic of Iran for reparation also cannot be upheld;


Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Buergenthal, Owada, Simma,

Tomka; Judge ad hoc Rigaux;

AGAINST: Judges Al-Khasawneh, Elaraby;

(2) By fifteen votes to one,

Finds that the counter-claim of the United States of America concerning the breach of the

obligations of the Islamic Republic of Iran under Article X, paragraph 1, of the above-

mentioned 1955 Treaty, regarding freedom of commerce and navigation between the

territories of the parties, cannot be upheld; and accordingly, that the counter-claim of the

United States of America for reparation also cannot be upheld.


Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal,Elaraby, Owada, Tomka; Judge ad hoc Rigaux;

AGAINST: Judge Simma.



___________

Annex to Summary 2003/2

Declaration of Judge Ranjeva

Subscribing to the conclusions set out in the Judgment, Judge Ranjeva raises the

distinction arising in respect of the same set of facts between the violation of freedom of

commerce between the two Parties and the non-violation of freedom of commerce

between those Parties' territories.

In his declaration Judge Ranjeva draws attention to the fact that the Judgment pierces the

veil of the dispute: the Court sought to give priority to thorough consideration of the point of

law to which the Parties ascribed the greatest importance: whether the use of force was

justified under Article XX, paragraph 1, of the 1955 Treaty or the principle of self-defence

under international law. The negative response given in the operative part itself reflects the

Court's decision to adopt an approach grounded on an analysis of the elements of the

claim: its cause (cur) and its subject(quid). It would have been appropriate under these

circumstances to look to Article 38, paragraph 2, of the Rules of Court and to refer directly

to the concept of the cause of the claim. Another approach, masking the cause of the

claim, would have affected the subject of the litigants' true intent and favoured wholly

artificial considerations or purely logical ones, given the strategy employed in presenting

the claims and arguments. In the present proceedings the Respondent's attitude helped to

forestall the theoretical debate concerning the tension between the consensual basis of the

Court's jurisdiction and the principle jura novit curia.

Declaration of Judge Koroma

In the declaration he appended to the Judgment, Judge Koroma stated that it was crucialand correct, in his view, that the Court had determined that measures involving the use of

force and purported to have been taken under the Article of the 1955 Treaty relating to the

maintenance or restoration of international peace and security, or necessary to protect a

State party's essential security interests, had to be judged on the basis of the principle of

the prohibition under international law of the use of force, as qualified by the right of self-

defence. In other words, whether an action alleged to be justified under the Article was or

was not an unlawful measure had to be determined by reference to the criteria of the

United Nations Charter and general international law.

He agreed with the Court's decision, as reflected in the Judgment, that the actions carried

out against the oil installations were not lawful as measures necessary to protect the

essential security interests of the United States, since those actions constituted recourse to

armed force not qualifying, under the United Nations Charter and general international law,

as acts of self-defence, and thus did not fall within the category of measures contemplated

by the 1955 Treaty. Judge Koroma maintained that that finding constituted a reply to the

submissions of the Parties and, accordingly, the issue of non ultra petita did not arise.

He also subscribed to the Court's finding that the protection of freedom of commerce under

the 1955 Treaty applied to the oil installations and that the attacks, prima facie, impededIran's freedom of commerce within the meaning of that expression in the text of the Treaty,



but did not violate the freedom of commerce. Judge Koroma considered this finding not

devoid of significance.

Separate opinion of Judge Higgins

Judge Higgins has voted in favour of the dispositif, because she agrees that the claim of

Iran that the United States has violated Article X, paragraph 1, of the Treaty of Amity

cannot be upheld.

However, she believes that this determination makes it unnecessary for the Court also to

address in its Judgment the question of whether the United States could justify its military

attacks on the oil platforms under Article XX, paragraph 1 (d), of the same Treaty. This is

because the Court itself has said, in its Judgment on Preliminary Objections in 1996, that

Article XX, paragraph 1 (d), is in the nature of a defence. In the absence of any finding of a

breach by the United States of Article X, paragraph 1, the issue of a possible defence does

not arise.

Judge Higgins observes that there are two particular reasons why there should not have

been a finding on Article XX, paragraph 1 (d), in thedispositif. The first is that the Court

usually treats a defence as part of its reasoning in deciding whether a Respondent has

acted contrary to an international legal obligation. It is its conclusion which normally

constitutes the dispositif, and not its reasoning as to any possible defence or justification.

The second reason is that, given the consensual basis of jurisdiction, the Court is limited in

the dispositif to making findings upon matters that the Applicant has requested for

determination. The final submissions of Iran do not include any request for a determination

on Article XX, paragraph 1 (d).

Even if it had been correct for the Court to deal with that clause, Judge Higgins believesthat it should then have interpreted the particular provisions in the light of general

international law as to their specific terms. In her view, the Court has not interpreted the

actual terms of Article XX, paragraph 1 (d), but has essentially replaced them, assessing

the United States military action by reference to the law on armed attack and self-defence.

Finally, in Judge Higgins's opinion, in the handling of the evidence that would fall for

consideration in any examination of Article XX, paragraph 1 (d), the Court has not

specified the standard of evidence to be met; nor dealt with the evidence in sufficient

detail; nor dealt with it in an even-handed manner.

Separate opinion of Judge Parra-Aranguren

Judge Parra-Aranguren declared that his vote for the operative part of the Judgment

should not be understood as an expression of agreement with each and every part of the

reasoning followed by the Court in reaching its conclusions. In particular he indicated his

disagreement with the first sentence of paragraph 125 (1) stating that the Court: "Finds

that the actions of the United States of America against Iranian oil platforms on




law on the use of force."



The reasons for his disagreement are the following:

The Court decided in its 12 December 1996 Judgment 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" (Oil Platforms (Islamic

Republic of Iran v.United States of America), Preliminary Objection, Judgment, I.C.J.

Reports 1996 (II), p. 821, para. 55 (2)).

In its first and main submission Iran requests the Court to reject all contrary claims and

submissions and to adjudge and declare "That in attacking and destroying on

19 October 1987 and 18 April 1988 the oil platforms referred to in Iran's Application, the

United States breached its obligations to Iran under Article X, paragraph 1, of the Treaty of

Amity, and that the United States bears responsibility for the attacks."

Thus Judge Parra-Aranguren considered that the subject-matter of the dispute submitted

by the Islamic Republic of Iran (hereinafter Iran) to the Court was whether the military

actions of the United States of America (hereinafter the United States) breached its

obligations to Iran under Article X, paragraph 1, of the Treaty of Amity, Economic Relations

and Consular Rights signed in Teheran on 15 August 1955 (hereinafter the 1955 Treaty), in

force between the parties. Therefore the task of the Court was to decide the claim

presented by Iran, i.e., to examine and determine whether the United States violated its

obligations under Article X, paragraph 1, of the 1955 Treaty. In his opinion it is only if the

Court came to the conclusion that the United States breached its obligations under

Article X, paragraph 1, of the 1955 Treaty that it would have jurisdiction to enter into the

consideration of the defence advanced by the United States to justify its military actions

against Iran, in particular whether they were justified under Article XX, paragraph 1 (d), ofthe 1955 Treaty as necessary to protect its "essential security interests".

In the Court's view there are particular considerations militating in favour of an examination

of the application of Article XX, paragraph 1 (d), before turning to Article X, paragraph 1.

The first particular consideration militating in favour of reversing the order of examination of

the Articles of the 1955 Treaty, as explained in paragraph 37 of the Judgment, is that: "It is

clear that the original dispute between the Parties related to the legality of the actions of

the United States, in the light of international law on the use of force"; "At the time of those

actions, neither Party made any mention of the 1955 Treaty", the United States contending

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".

As the second particular consideration, paragraph 38 of the Judgment indicates that, in its

Rejoinder, the United States itself recognizes that "The self-defense issues presented in

this case raise matters of the highest importance to all members of the international

community"; and that Iran also stresses the great importance of those issues.

In the opinion of Judge Parra-Aranguren there can be no doubt that matters relating to the

use of force and to self-defence are of the highest importance to all members of theinternational community. He also stated that, while being perfectly well aware at that time

of the two particular considerations indicated above, the Court in its 1996 Judgment



expressly interpreted Article XX, paragraph 1 (d), of the 1955 Treaty "as affording only a

defence on the merits", concluding that it "is confined to affording the Parties a possible

defence on the merits to be used should the occasion arise" (Oil Platforms (Islamic

Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J.

Reports 1996 (II), p. 811, para. 20).

Consequently, Judge Parra-Aranguren is convinced that there are no "particular

considerations militating in favour of an examination of the application of Article XX,

paragraph 1 (d), before turning to Article X, paragraph 1". On the contrary, there are strong

considerations in favour of not doing so. The second sentence of paragraph 125 (1) of the

Judgment dismisses the claim presented by Iran because the Court came to the

conclusion that the United States had not violated Article X, paragraph 1, of the

1955 Treaty. In the opinion of Judge Parra-Aranguren, that is the end of the story.

Therefore he concluded that the Court did not have jurisdiction to examine the defences

advanced by the United States on the basis of Article XX, paragraph 1 (d), to justify its

hypothetical violation of Article X, paragraph 1, of the 1955 Treaty.

Separate opinion of Judge Kooijmans

Judge Kooijmans has voted in favour of the dispositif since he agreed with its substance.

He is, however, of the view that the Court's finding that the actions of the United States

against the oil platforms cannot be justified as measures necessary to protect its essential

security interests is not part of the decision on the claim and therefore should not have

found a place in the dispositif. That creates the hazardous precedent of an obiter dictum in

the operative part of a judgment.

In his separate opinion Judge Kooijmans first gives a more detailed overview of the factualcontext than is presented in the Judgment.

He then deals with the substance of the dispute before the Court, which deals with the

question whether the United States violated its obligation under Article X, paragraph 1, of

the 1955 Treaty concerning freedom of commerce, and not whether it used force in breach

of the United Nations Charter and customary law.

He is of the view that Article XX, paragraph 1 (d), of the 1955 Treaty enabling the parties to

take measures necessary to protect their essential security interests, is not an exoneration

clause but a freestanding provision and that the Court therefore correctly concluded that it

was free to choose whether it would first deal with Article X, or with Article XX,

paragraph 1 (d). But once the Court had found that the United States could not invoke

Article XX, it had to decide the case on grounds material to Article X, paragraph 1, itself.

Its conclusion with regard to Article XX, paragraph 1 (d), became irrelevant for the

disposition on the claim and therefore should not have found a place in the operative part

of the Judgment.

Judge Kooijmans also dissociates himself from the way in which the Court puts the

measures, invoked by the United States as "necessary to protect its essential security

interests", directly to the test of the general rules of law on the use of force including theright to self-defence, thereby misinterpreting the scope of its jurisdiction.



In the last part of his opinion, Judge Kooijmans indicates what in his opinion would have

been the proper approach to deal with the legal aspects of Article XX, paragraph 1 (d). In

this respect he follows the distinction made by the Court in its 1986 Judgment in the

Nicaragua case between a test of reasonableness with regard to the assessment of the

threat to the security risks and a legality test with regard to the necessity of the measures

taken. Applying this method and using the rules of general international law on the use of

force as a means to interpret the meaning of "necessary", Judge Kooijmans concludes that

the actions against the oil platforms do not constitute measures which can be deemed

necessary to protect the essential security interests of the United States.

Dissenting opinion of Judge Al-Khasawneh

Judge Al-Khasawneh felt that the formal structure of the dispositif amalgamating as it does

two distinct findings in one paragraph was unorthodox and unfortunate. It also left

Judge Al-Khasawneh with a difficult choice of accepting the paragraph as a whole or

leaving it. He felt compelled to dissent because he disagreed with the finding that the

United States was not in violation of its obligations under Article X, paragraph 1, of the

1955 Treaty on the freedom of commerce. That finding was arrived at by unpersuasive

reasoning that draws an artificial distinction between protected commerce (direct

commerce) and unprotected commerce (indirect commerce). He pointed out that

international trade law thresholds were ill-suited as a yardstick for treaty-protected

commerce, moreover the Judgment was unduly restrictive of the definition of freedom of

commerce which included not only actual but also potential commerce. Judge Al-

Khasawneh felt also that the approach could not be supported on the basis of textual

analysis and was at variance with earlier jurisprudence.Regarding the United States counter-claim which was rejected by the Court, Judge Al-

Khasawneh felt this was a consequence of the Court's narrow interpretation of protected

commerce and felt it would be better if the Court had upheld claim and counter-claim. The

main difficulty with the United States claim was however the problem of attribution to Iran.

Judge Al-Khasawneh felt that the Court should have been clearer in its use of language

when it came to rejecting United States claims that their actions against the oil platforms

were justified by Article XX, paragraph 1 (d), of the 1955 Treaty as necessary measures to

protect United States essential security interests. The use of force made it inevitable to

discuss these criterion in the language of necessity and proportionality which form part of

the concept of the non-use of force.

Separate opinion of Judge Buergenthal

Judge Buergenthal agrees with the Court's Judgment to the extent that it holds that the

United States of America did not breach Article X, paragraph 1, of the 1955 Treaty

between it and Iran. He also agrees with the Court's decision rejecting the counter-claim

interposed by the United States against Iran. That decision of the Court is justified, in his

view, for the very reasons, mutatis mutandis, that led the Court to find that the United

States did not breach the obligations it owed Iran under Article X, paragraph 1, of the1955 Treaty. But Judge Buergenthal dissents from the Court's conclusion that the actions

of the United States, in attacking certain Iranian oil platforms, cannot be justified under



Article XX, paragraph 1 (d), of the Treaty "as interpreted in the light of international law on

the use of force". He considers that this pronouncement has no place in the Judgment,

much less in the operative part thereof.

Judge Buergenthal believes that the Court's Judgment, as it relates to Article XX,

paragraph 1 (d), is seriously flawed for the following 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 process, which does not allow the Court

to deal with a subject - here Article XX, paragraph 1 (d) - in the dispositif 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 resolution clause - Article XXI, paragraph 2 - of the 1955 Treaty, that clause

being 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 interpretation of that Article in light of the international law on the use of

force exceeded its jurisdiction. Finally, Judge Buergenthal considers that the manner in

which the Court analyses the evidence bearing on its application of Article XX,

paragraph 1 (d), is seriously flawed.

Dissenting opinion of Judge Elaraby

Judge Elaraby voted against the first paragraph of the dispositif, essentially dissenting on

three points.

First, the Court had jurisdiction to rule upon the legality of the use of force. Particularly that

the Court held that the United States use of force cannot be considered as legitimate self-defence in conformity with the "criteria applicable to the question" which the Court

identified as "the provisions of the Charter of the United Nations and customary

international law". United States action amounted to armed reprisals and their illegality as

such should have been noted. The Court missed an opportunity to reaffirm and clarify the

law on the use of force in all its manifestations.

Second, the Court's refusal to uphold Iran's claim of a violation of Article X, paragraph 1,

was based on unsound premises in facts and in law. What is relevant is not whether the

targeted platforms were producing oil at the time of the attacks, but rather whether Iran as

a whole was producing oil and exporting it to the United States. The test is whether the

freedom of commerce between the territories of the two Parties had been prejudiced. Once

the embargo was imposed, indirect commerce was allowed and in fact continued. The

ordinary meaning of the Treaty in its context supports the argument that its purview covers

commerce in a broad sense. Also, Article X, paragraph 1, does not exclude such indirect

commerce. The ten days between the first attack and the imposition of the embargo would

have sufficed to declare that the freedom of commerce was prejudiced. Hence, the

obligation emanating from Article X, paragraph 1, was breached.

Third, the Court was right in examining Article XX, paragraph 1 (d), before Article X,paragraph 1. It had jurisdiction to enhance its contribution to the progressive development

of the law by ruling more exhaustively on the use of force.



Separate opinion of Judge Owada

Judge Owada concurs in the final conclusion of the Court that neither the claims of the

Applicant nor the counter-claim of the Respondent can be upheld, but he is not in a

position to agree to all the points in the dispositif nor with all the reasons leading to the

conclusions. For this reason Judge Owada attaches his separate opinion, focusing only on

some salient points.

First, on the question of the basis of the decision of the Court, Judge Owada takes the

view that the Court should have examined Article X, paragraph 1, prior to Article XX,

paragraph 1 (d). Article XX, paragraph 1 (d), constitutes a defence on the merits of the

claims of the Applicant on Article X, paragraph 1, and should for that reason be considered

only if and when the Court finds that there has been a breach of Article X, paragraph 1.

The Court cannot freely choose the ground upon which to pass judgment when its

jurisdiction is limited to the examination of Article X, paragraph 1.

Second, on the question of the scope of Article X, paragraph 1, Judge Owada is in general

agreement with the Judgment, but makes the point that the term "freedom of commerce"

as used in the 1955 Treaty refers to "unimpeded flow of mercantile transaction in goods

and services between the territories of the Contracting Parties" and cannot cover the

activities of the oil platforms. Apart from the factual ground on which the Judgment is

based, the Court for this reason cannot uphold the claim that the "freedom of commerce"

in Article X, paragraph 1, has been breached.

Third, on the question of the scope of Article XX, paragraph 1 (d), which in his view the

Court does not have to take up in view of its finding on Article X, paragraph 1,

Judge Owada is of the opinion that the interpretation and application of Article XX,paragraph 1 (d), and the question of the self-defence under international law in general are

not synonymous and that the latter as such is not the task before the Court. The

examination of the latter problem by the Court should be confined to what is necessary for

the interpretation and application of Article XX, paragraph 1 (d), in view of the limited

scope of the jurisdiction of the Court.

Finally, Judge Owada raises the question of asymmetry in the production of evidence in

this case, which leads to a difficult situation for the Court in verifying the facts involved.

While accepting the basic principle on evidence, actori incumbit onus probandi,

Judge Owada would have liked to see the Court engage in much more in-depth probing

into the problem of ascertaining the facts of the case, if necessary proprio motu.

Separate opinion of Judge Simma

Judge Simma starts his separate opinion by explaining why he voted in favour of the first

part of the dispositif of the Judgment even though he agrees with the Court's treatment of

only one of the two issues dealt with therein, namely that of the alleged security interests of

the United States measured against the international law on self-defence. As to the

remaining parts of the dispositif, Judge Simma can neither agree with the Court's decision

that the United States attacks on the oil platforms ultimately did not infringe upon Iran'sTreaty right to respect for its freedom of commerce with the United States, nor does Judge

Simma consider that the way in which the Court disposed of the so-called "generic"



counter-claim of the United States was correct. Rather, in Judge Simma's view this

counter-claim ought to have been upheld. Regarding the part of the dispositifdevoted to

this counter-claim, Judge Simma thus had no choice but to dissent. The reason why Judge

Simma did not also dissent from the first part of the dispositif (and prefers to call his

opinion a "separate" and not a "dissenting" one) even though he concurs with the Court's

decisions on only the first of the two issues decided therein, is to be seen in a

consideration of judicial policy: Judge Simma welcomes that the Court has taken the

opportunity, offered by United States reliance on Article XX of the 1955 Treaty, to state its

view on the legal limits on the use of force at the moment when these limits find

themselves under the greatest stress. Although Judge Simma is of the view that the Court

has fulfilled what is nothing but its duty in this regard with inappropriate restraint,

Judge Simma does not want to disassociate himself from what after all does result in a

confirmation, albeit too hesitant, of the jus cogens of the United Nations Charter.

Since matters relating to the United States use of force are at the heart of the case,

Judge Simma finds the Judgment's approach of dealing with Article XX before turning to

Article X of the 1955 Treaty acceptable. On the other hand, what the Court should have

had the courage to do was to restate, and thus to reconfirm, the fundamental principles of

the law of the United Nations as well as customary international law on the use of force in

a way conforming to the standard of vigour and clarity set by the Court already in the Corfu

Channel case of half a century ago. This, unfortunately, the Court has not done.

In Judge Simma's view the Court could have clarified what kind of defensive

countermeasures would have been available to the United States: in Judge Simma's view,

hostile military action not reaching the threshold of an armed attack within the meaning ofArticle 51 of the United Nations Charter, like that by Iran in the present case, may be

countered by proportionate and immediate defensive measures equally of a military

character. However, the United States actions against the oil platforms did not qualify as

such proportionate countermeasures.

In Judge Simma's view, the Court's treatment of Article X on freedom of commerce

between the territories of the Parties follows a step-by-step approach which he considers

correct up to a certain point but which then turns into wrong directions: first, the platforms

attacked in October 1987 could not lose their protection under Article X through being

temporarily inoperative because, according to Judge Simma, the freedom under the Treaty

embraces also the possibility of commerce in the future. Secondly, according to Judge

Simma, the indirect commerce in Iranian oil going on during the time of the United States

embargo is also to be regarded as protected by the Treaty.

Turning to the United States counter-claim, Judge Simma finds the way in which the Court

has dealt with it blatantly inadequate, particularly with regard to the so-called generic

counter-claim which, in Judge Simma's view, should have been upheld. Judge Simma then

sets out to develop the arguments, put forward somewhat unpersuasively by the United

States, in support of the generic counter-claim. The fact that in the present instance (unlikein the Nicaragua case), it was two States which created the situation adverse to neutral

shipping in the Gulf, is not determinant. According to Judge Simma, all that matters with



regard to the generic counter-claim is that Iran was responsible for a significant portion of

the actions impairing the freedom of commerce and navigation between the two countries;

it is not necessary to determine the particular extent to which Iran was responsible for

them. Neither could it be argued that all the impediments to free commerce and navigation

which neutral ships faced in the Gulf were caused by legitimate acts of war carried out by

the two belligerents, and that therefore neutral shipping entered the maritime areas

affected by the Gulf war at its own risk. In Judge Simma's view, Iran's actions constituted a

violation of Article X of the 1955 Treaty; an impediment on the freedom of commerce and

navigation caused by those actions is evidenced by the increase in labour, insurance, and

other costs resulting for the participants in commerce between the countries during the

relevant period.

Judge Simma then turns to refuting the argument that the acts alleged to have constituted

an impediment to the freedom of commerce and navigation under the Treaty cannot be

attributed to Iran with certainty and that therefore it is impossible to find Iran responsible for

those acts. Judge Simma demonstrates that a principle of joint-and-several responsibility

can be developed from domestic legal systems as a general principle of law by which the

dilemma in the present case could have been overcome.

Finally, Judge Simma argues that the so-called "indispensable-third-party" doctrine

consecutively accepted and rejected by the Court's earlier jurisprudence would not have

stood in the way of accepting the United States counter-claim as well-founded.

Separate opinion of Judge Rigaux

The operative part of the Judgment comprises two points: in the second it is concluded

that the counter-claim of the United States of America must be rejected; the first is dividedinto two parts, the second of which rejects the claim of the Islamic Republic of Iran for

reparation while in the first the American attacks on the oil platforms are held not to have

satisfied the requirements of the applicable provisions of the 1955 Treaty, as interpreted in

the light of international law on the use of force.

Judge Rigaux voted in favour of the two points in the operative part, with some

reservations as to the first. The two clauses constituting it would appear inconsistent: it is a

contradiction both to hold that use of armed force against the oil platforms was unlawful

and to reject the claim for reparation for the injury caused by the unlawful act. However, the

Court's affirmation of the principle prohibiting the use of armed force except in those

situations where contemplated by international law appeared to Judge Rigaux sufficiently

important that he felt obliged to vote in favour of it, notwithstanding the refusal to uphold

Iran's rightful claim.

The reasoning supporting the rejections of the two actions contains two elements common

to them, i.e., the interpretation given to the notion of "indirect" commerce and the idea that

"future" commerce falls outside the scope of freedom of commerce. Judge Rigaux finds

those two elements debatable.

PARTIAL AWARD IUS AD BELLUM: ETHIOPIA’S CLAIMS 1-8, ERITREA ETHIOPIA

CLAIMS COMMISSION



for serious allegations;[19]a balanced approach towards the use of various forms of

evidence;[20]significant guidance on handling of allegations of rape;[21]and a pragmatic

and proactive attitude towards resolving factual disputes.

The Commissionâ s Methodology

Having determined the substantive responsibility of the two sides for these actions, the

Commission then proceeded with the task of determining the amounts of compensation to

be paid as a result. It issued further guidance, ordered further briefing and conducted

further hearings on the quantum of damage and compensation to be awarded. On August

17, 2009, the Commission issued its final awards, which ordered the payment of

compensation by each side to the other for the violations of law previously found in the

partial awards.

Over the course of the proceedings, various proposals were made to provide relief through

means other than monetary compensation for specific unlawful acts. For example, the

Commission had proposed at the outset a mass claims process under which the parties

might file claims for fixed amounts for different categories of individual claimants;[22]

Ethiopia proposed that, instead of giving damage awards, the Commission should create a

mechanism â to increase the flow of relief and development funds from international

donors to alleviate the consequences of the war in both countriesâ ;[23] and Eritrea

proposed that, instead of seeking damage awards for rape, each party set aside an

amount for womenâ s health care and support services.[24]However, none of these

alternatives were adopted, and the Commission was left with the very difficult task of

deciding on appropriate specific monetary awards for the many violations.

The Commission recognized from the outset that it faced a difficult and unusual situation: itwas â mindful of the harsh fact that these countries are among the poorest on earthâ and

that the parties both sought amounts â that were huge, both absolutely and in relation to

the economic capacity of the country against which they were directed.â [25] Further,

having been obligated by the 2000 Agreement to complete its work in a relatively short

period, the Commission adopted expedited procedures for briefing and considering claims

which it recognized might produce â less informed and preciseâ assessments of damage.

[26] It pointedly noted that its own resources and capabilities were limited.[27] Recognizing

that the parties also had time constraints and limited capabilities in producing evidence,

the Commission would not require â evidence regarding thousands of individual events,

evidence that the Parties could not assemble and present, and that the Commission could

not address, without unacceptable cost and delay.â [28] The Commission said that it saw

its task â not as being able to determine liability for each individual incident of illegality

suggested by the evidence,â but rather to determining liability for illegal acts â that were

frequent or pervasive and consequently affected significant numbers of victims.â [29]

This sense of limitations and the need for pragmatic approaches is evident throughout the

Commissionâ s work on damages. As for the standard of proof required, the Commission

had, in the liability phase, required â clear and convincing proofâ of liability.[30] Eritreaarguedthat the same standard should apply in the damages phase as well. The

Commission disagreed, judging that, in light of the â enormous practical problemsâ faced

https://www.asil.org/insights/volume/13/issue/13/eritrea-ethiopia-claims-commission-damage-awards#_edn1





























-- The Commission declined to awarddamages for disruption to the lives and financial

prospects of students because of the destruction of schools, but was more amenable to

awarding compensation for the presumed injury to civilians denied medical care because

of damage to hospital facilities.[47]

-- The Commission awarded damages for damage to an ancient stone obelisk that went

beyond the actual costs of restoration and included an amount to reflect its â unique

cultural significance.â [48]

-- The Commission awarded damagesforthe seizure of diplomatic property, but declined

to give monetary relief wrongful searches of diplomatic personnel where there was no

material damage, judging that a declaration of wrongfulness was sufficient.[49]

Jus Ad Bellum Claims

In the liabilityphase, the Commission found Eritrea and Ethiopia each liable for violations

of the jus in bello â violations of the rules of warfare, such as violations of the rights of

civilians and prisoners of war, and (in a few cases) improper targeting and excessive

civilian damage in the conduct of military attacks. It also found Eritrea liable for violation of

the jus ad bellumâ the unlawful resort to force â in its initial invasion of Ethiopia.

Shortly after its partial awards in the liability phase, the Commission had issued guidance

on the scope of Eritreaâ s jus ad bellum liability to pay damages and the standard for

assessing that liability. Basically, the Commission indicated that it would not hold Eritrea

responsible for the entirety of the losses caused by the war that followed its unlawful

invasion, but rather would award damages only with respect to those losses for which

Eritreaâ s initial invasion were the â proximate causeâ .[50] Nonetheless, in the damages

phase, Ethiopia sought very large amounts for damage caused during the whole rangeand duration of hostilities, arguing that these were foreseeable consequences of Eritreaâ s

initial invasion.[51]

In response, the Commission reiterated its view that a stateâ s responsibility for jus ad

bellum violations does not extend to all the losses suffered in the conflict that started as a

result of those violations. It then determined which aspects of the fighting and losses at

various times on the different fronts of the Eritrean-Ethiopian conflict were foreseeable

results of the Eritrean invasion and therefore compensable.[52] In some cases,

compensation was awarded under jus ad bellum with respect to operations or elements

that were found not to have violated jus in bello, such as the use of land mines, artillery

damage, and attacks on airports.[53] In other cases, compensation was denied onthe

grounds that there was not â a sufficiently clear and direct causal connectionâ with the

initial Eritrean invasion.[54]

The End Result

In total, the Commission awarded about $161 million to the Government of Eritrea and

about $2 million to individual Eritreans.[55] It awarded about $174 million to the

Government of Ethiopia.[56] In other words, Ethiopia would net roughly $10 million. The

Eritrean Government stated that it accepted the award â without any equivocationâ , whilethe Ethiopian Government complained that the award was â a very small amount given the

























gravity of the crime of aggression committed by Eritrea as determined by the commission

itself.â [57]

At this point, it is not clear what the practical results of the Commissionâ s final awards will

be. Unlike some other recent international claims processes (such as the Iran-U.S. Claims

Tribunal and the UN Compensation Commission), there is no dedicated source of funding

that will automatically pay awards, and satisfaction will depend on the willingness and

ability of governments with very limited resources to pay. If the awards are not promptly

paid, the two governments might negotiate some mutually-acceptable offset or

compromise, or each might seek to enforce its own award by attachment or suit in

jurisdictions where the other has assets. Even if the awards are promptly paid, they are

predominantly state-to-state claims that are not directed at specific recipients; the

payments would be received by the two governments, which technically would have

discretion as to whether to keep the funds, provide them to affected individuals, or use

them for alternative forms of assistance or relief to the affected population groups. (In this

respect, the process is also unlike those of the Iran-U.S. Claims Tribunal and the UN

Compensation Commission, where specific awards were made for specific recipients.)[58]

In any event, the net amount of $10 million owingto Ethiopia is not large compared to the

overall losses suffered in the war.

Leaving aside the question of payment, hopefully the most important consequence of the

process will be that the two parties will accept the results of the claims adjudication â

along with the results of the border delimitation and demarcation â and consider that this

unfortunate chapter in their mutual relations is closed. In a sense, the most important

contribution of the creation of the two commissions was that it enabled the two sides toend their armed conflict, and it would be regrettable if any disagreement about the results

reached by the two commissions were to contribute to a resumption of antagonistic

relations.

But whatever the practical consequences, the final awards are likely to be an important

source of jurisprudence and practical guidance for future international claims processes.

Not all of the specific amounts awarded were explained in detail, reflecting the fact that the

Commission found it necessary to make rough and subjective estimates of losses because

of the lack of definitive evidence, the chaotic conditions of the conflict, and constraints of

time and resources. Nevertheless, the final awards included many significant findings, as

described above, which could have an important influence on other disputes about armed

conflict situations.

THE ENTEBBE INCIDENT

http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2178&context=jil

THE LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS CASE









necessity and proportionality and the law applicable in armed conflict apply, including such

further considerations as the very nature of nuclear weapons and the profound risks

associated with their use.

The ICJ also considered the question whether a signalled intention to use force if certain

events occur qualifies as an unlawful "threat" under Article 2(4) of the UN Charter.

According to the Court, the notions of "threat" or "use" of force under Article 2(4) work in

tandem in that the illegal use of force in a given case will likewise make the threat to use

such force unlawful. The Court pointed out that the mere possession of nuclear weapons

would not constitute an unlawful "threat" to use force contrary to Article 2(4), unless the

particular use of force envisaged would be directed against the territorial integrity or

political independence of a state or would be inconsistent with the purposes of the United

Nations or, in the event that it were intended as a means of defense, such envisaged use

of force would violate the principles of necessity and proportionality.

The Court next examined the law applicable in situations of armed conflict by addressing

two questions: (1) are there specific rules in international law regulating the legality or

illegality of recourse to nuclear weapons per se, and (2) what are the implications of the

principles and rules of humanitarian law applicable in armed conflict and the law of

neutrality?

The ICJ noted that international customary and treaty law do not contain any specific

prescription authorizing the threat or use of nuclear weapons or any other weapon ingeneral or in certain circumstances, in particular those of the exercise of legitimate self-

defense. Nor, however, is there any principle or rule of international law that would make

the legality of the threat or use of nuclear weapons or of any other weapons dependent on

a specific authorization. State practice shows that the illegality of the use of certain

weapons as such does not result from an absence of authorization but is rather formulated

in terms of prohibition.

The Court examined whether any such prohibition of recourse to nuclear weapons can be

found in treaty law. With regard to certain specific treaties dealing with the acquisition,

manufacture, possession, deployment and testing of nuclear weapons, the Court noted

that these treaties "point to an increasing concern in the international community" with

regard to nuclear weapons, and concluded that they "could therefore be seen as

foreshadowing a future general prohibition of the use of such weapons, but they do not

constitute such a prohibition by themselves." As to those treaties that address the issue of

recourse to nuclear weapons, the Court observed that they "testify to a growing awareness

of the need to liberate the community of States and the international public from the

dangers resulting from the existence of nuclear weapons," but that these treaties also donot amount to a comprehensive and universal conventional prohibition on the threat or use

of nuclear weapons as such.



The Court then examined customary international law. First, it determined that the non-use

of nuclear weapons does not amount to a customary prohibition, because the world

community is profoundly divided on the issue. Second, the Court examined whether

certain General Assembly resolutions that deal with nuclear weapons signify the existence

of a rule of customary international law prohibiting recourse to nuclear weapons. In the

Court's view, although these resolutions are "a clear sign of deep concern regarding the

problem of nuclear weapons" and "reveal the desire of a very large section of the

international community to take, by a specific and express prohibition of the use of nuclear

weapons, a significant step forward along the road to complete nuclear disarmament," they

fall short of a customary rule specifically prohibiting the use of nuclear weapons as such.

The ICJ next considered whether recourse to nuclear weapons must be considered as

illegal in the light of the principles and rules of international humanitarian law applicable in

armed conflict and of the law of neutrality. The Court stated that the cardinal principles of

international humanitarian law prescribing the conduct of military operations are: (1) the

protection of the civilian population and civilian objects and the prohibition of the use of

weapons incapable of distinguishing between combatants and non-combatants, and (2)

the prohibition on causing unnecessary suffering to combatants by using certain weapons.

According to the Court, the fundamental rules of humanitarian law applicable in armed

conflict must be observed by all states whether or not they have ratified the conventions

that contain them, because they constitute intransgressible principles of international

customary law. The ICJ agreed with the vast majority of states as well as writers that therecan be no doubt as to the applicability of the principles and rules of humanitarian law in

armed conflict to a possible threat or use of nuclear weapons, despite the fact that these

principles and rules had evolved prior to the invention of nuclear weapons. It also found

that the customary principle of neutrality is applicable, subject to the relevant provisions of

the UN Charter, to all international armed conflict, whatever type of weapons might be

used (although the principle of neutrality is not well defined, and the ICJ left its content

undefined here, it is generally regarded as requiring at least that no attack be made on a

state that has declared itself a neutral and is conducting itself accordingly).

Despite the undisputed applicability of the principles and rules of humanitarian law and of

the law of neutrality to nuclear weapons, the ICJ found that the conclusions to be drawn

from this applicability were controversial. The Court admitted that, in view of the unique

characteristics of nuclear weapons, their use "in fact seems scarcely reconcilable" with the

strict requirements dictated by the law applicable in armed conflict. The judges being

evenly divided, ICJ President Mohammed Bedjaoui used his casting vote to hold that the

threat or use of nuclear weapons would generally be contrary to the rules of international

law applicable in armed conflict. At the same time, the ICJ held that it did not have asufficient basis for a definitive conclusion as to whether the use of nuclear weapons would



or would not be at variance with the principles and rules of law applicable in armed conflict

in an extreme circumstance of self-defense, in which a state's very survival is at stake.

Finally, the Court examined the obligation to negotiate in good faith a complete nuclear

disarmament, recognized in Article VI of the Treaty on the Non-Proliferation of Nuclear

Weapons of 1968. The ICJ judges held unanimously that the obligation enshrined in Article

VI involves "an obligation to achieve a precise result-nuclear disarmament in all its

aspects-by adopting a particular course of conduct, namely, the pursuit of negotiations on

the matter in good faith." The Court noted that this twofold obligation to pursue and

conclude negotiations in accordance with the basic principle of good faith formally

concerns the 182 states parties to the Treaty on the Non-Proliferation of Nuclear Weapons,

constituting the vast majority of the international community.

Legality of the Use by a State of Nuclear Weapons in Armed Conflict

On July 8, 1996, the ICJ ruled also that it was unable to comply with a request received on

September 1993 from the World Health Organization (WHO) to give an advisory opinion

on the following question: "In view of the health and environmental effects, would the use

of nuclear weapons by a State in war or other armed conflict be a breach of its obligations

under international law including the WHO Constitution?" The Court ruled, 11-3, that

although the WHO is duly authorized under the UN Charter to request advisory opinions

from the ICJ and the opinion requested concerned a legal question, the request submitted

by the WHO did not relate to a question arising within the scope of the activities of thatorganization as required by Article 96(2) of the UN Charter.

The Court pointed out that its jurisdiction to provide an advisory opinion in response to a

request by a specialized agency requires that: (1) the specialized agency requesting the

opinion must be duly authorized, under the UN Charter, to request advisory opinions from

the ICJ, (2) the opinion requested must relate to a "legal question" within the meaning of

the ICJ Statute and the UN Charter, and (3) the opinion requested must relate to a

question that arises within the scope of the activities of the specialized agency requesting

the opinion.

Regarding the third condition, the Court emphasized the importance of the relevant rules,

and in particular the constituent instrument, of the WHO in determining the scope of its

activities against the background of the question it posed. In interpreting the constituent

instrument of an international organization, the character of which is conventional and at

the same time institutional (being a treaty establishing an international organization), the

Court observed that the following elements deserve special attention: (i) the nature of the

international organization, (ii) the objectives assigned to the organization by its founders,(iii) the imperatives associated with the effective performance of the functions of the

organization, and (iv) the organization's own practice.



The ICJ observed that none of the 22 functions listed in the WHO Constitution expressly

refers to the legality of any activity hazardous to health, or depends upon the legality of the

situations in which that organization must act. Article 2 states that the WHO discharges its

functions "to achieve its objective," which Article 1 defines as "the attainment by all

peoples of the highest possible level of health." According to the Court, the functions listed

in Article 2 authorize the WHO to deal with the effects on health of the use of nuclear

weapons, or any other hazardous activity, and to take preventive measures that are aimed

at protecting the health of populations in the event of such weapons being used or such

activities engaged in.

Having found the request to relate not to the effects of the use of nuclear weapons on

health, but rather the legality of the use of such weapons in view of their health and

environmental effects, the Court concluded that there was insufficient connection between

the request and the functions of the WHO to support the Court's jurisdiction. According to

the ICJ: "the legality or illegality of the use of nuclear weapons in no way determines the

specific measures, regarding health or otherwise (studies, plans, procedures, etc.), which

could be necessary in order to prevent or cure some of their effects."

The Court acknowledged that international organizations can exercise subsidiary or

"implied" powers not expressly provided for in the basic instruments that govern their

activities. However, it held that the competence to address the legality of the use of nuclear

weapons could not be deemed a necessary implication of the WHO Constitution in thelight of the purposes member states had assigned to it. To hold otherwise would be

tantamount to disregarding the principle of speciality according to which international

organizations operate in limited fields.

The ICJ explained that the logic of the UN Charter system demonstrates that the United

Nations was invested with powers of general scope and that specialized agencies such as

the WHO were invested with sectorial powers. The responsibilities of the WHO are

necessarily restricted to the sphere of public health, and cannot encroach on the

responsibilities of other parts of the UN system. More specifically, questions concerning

the use of force, the regulation of armaments, and disarmament are within the competence

of the United Nations and outside that of the specialized agencies.

Finally, the Court pointed out that none of the WHO's reports and resolutions was in the

nature of a practice of the WHO concerning the legality of the threat or use of nuclear

weapons. It held that in general the WHO is not empowered to seek an opinion on the

interpretation of its Constitution in relation to matters outside the scope of its functions.

******These advisory opinions of the World Court are of considerable significance to the

development of the law of nuclear weapons and international organizations. Although the



Court concluded that it was unable to hold definitively whether the threat or use of nuclear

weapons would be lawful or unlawful in an extreme circumstance of self-defense in which

the very survival of a state would be at stake (thereby leaving the door to legality open)

and it could not give the opinion requested by the WHO, the legal reasoning leading to

these conclusions reflects the Court's authoritative views on important issues of

international law. Although the opinions are non-binding, in preparing them the Court

follows the same rules and procedures that govern its binding judgments delivered in

contentious cases submitted to it by sovereign states.

------------


US V. YUNIS

US v. Yunis - Arab men who hijacked a Jordanian aircraft which had several US national

passengers were charged before a US court = valid.

-------------

1

Appellant Fawaz Yunis challenges his convictions on conspiracy, aircraft piracy, andhostage-taking charges stemming from the hijacking of a Jordanian passenger aircraft in

Beirut, Lebanon. He appeals from orders of the district court denying his pretrial motions

relating to jurisdiction, illegal arrest, alleged violations of the Posse Comitatus Act, and the

government's withholding of classified documents during discovery. Yunis also challenges

the district court's jury instructions as erroneous and prejudicial.

2

Although this appeal raises novel issues of domestic and international law, we reject Yunis'

objections and affirm the convictions.

I. BACKGROUND

3

On June 11, 1985, appellant and four other men boarded Royal Jordanian Airlines Flight

402 ("Flight 402") shortly before its scheduled departure from Beirut, Lebanon. They wore

civilian clothes and carried military assault rifles, ammunition bandoleers, and hand

grenades. Appellant took control of the cockpit and forced the pilot to take off immediately.

The remaining hijackers tied up Jordanian air marshals assigned to the flight and held thecivilian passengers, including two American citizens, captive in their seats. The hijackers

explained to the crew and passengers that they wanted the plane to fly to Tunis, where a



conference of the Arab League was under way. The hijackers further explained that they

wanted a meeting with delegates to the conference and that their ultimate goal was

removal of all Palestinians from Lebanon.

4

After a refueling stop in Cyprus, the airplane headed for Tunis but turned away when

authorities blocked the airport runway. Following a refueling stop at Palermo, Sicily,

another attempt to land in Tunis, and a second stop in Cyprus, the plane returned to Beirut,

where more hijackers came aboard. These reinforcements included an official of

Lebanon's Amal Militia, the group at whose direction Yunis claims he acted. The plane

then took off for Syria, but was turned away and went back to Beirut. There, the hijackers

released the passengers, held a press conference reiterating their demand that

Palestinians leave Lebanon, blew up the plane, and fled from the airport.

5

An American investigation identified Yunis as the probable leader of the hijackers and

prompted U.S. civilian and military agencies, led by the Federal Bureau of Investigation

(FBI), to plan Yunis' arrest. After obtaining an arrest warrant, the FBI put "Operation

Goldenrod" into effect in September 1987. Undercover FBI agents lured Yunis onto a yacht

in the eastern Mediterranean Sea with promises of a drug deal, and arrested him once the

vessel entered international waters. The agents transferred Yunis to a United States Navy

munitions ship and interrogated him for several days as the vessel steamed toward a

second rendezvous, this time with a Navy aircraft carrier. Yunis was flown to Andrews AirForce Base from the aircraft carrier, and taken from there to Washington, D.C. In

Washington, Yunis was arraigned on an original indictment charging him with conspiracy,

hostage taking, and aircraft damage. A grand jury subsequently returned a superseding

indictment adding additional aircraft damage counts and a charge of air piracy.

6

Yunis filed several pretrial motions, among them a motion to suppress statements he made

while aboard the munitions ship. In United States v. Yunis (Yunis I),859 F.2d

953(D.C.Cir.1988), this court reversed a district court order suppressing the statements,

and authorized their introduction at trial. We revisited the case on a second interlocutory

appeal relating to discovery of classified information, reversing the district court's

disclosure order. United States v. Yunis (Yunis II),867 F.2d 617 (D.C.Cir.1989).

7

Yunis admitted participation in the hijacking at trial but denied parts of the government's

account and offered the affirmative defense of obedience to military orders, asserting that

he acted on instructions given by his superiors in Lebanon's Amal Militia. The juryconvicted Yunis of conspiracy, 18 U.S.C. Sec. 371 (1988), hostage taking, 18 U.S.C. Sec.

1203 (1988), and air piracy, 49 U.S.C. App. Sec. 1472(n) (1988). However, it acquitted him

http://openjurist.org/859/f2d/953








(A) the offender or the person seized or detained is a national of the United States;

14

(B) the offender is found in the United States; or

15

(C) the governmental organization sought to be compelled is the Government of the United

States.

16

18 U.S.C. Sec. 1203. Yunis claims that this statute cannot apply to an individual who is

brought to the United States by force, since those convicted under it must be "found in the

United States." But this ignores the law's plain language. Subsections (A), (B), and (C) of

section 1203(b)(1) offer independent bases for jurisdiction where "the offense occurred

outside the United States." Since two of the passengers on Flight 402 were U.S. citizens,

section 1203(b)(1)(A), authorizing assertion of U.S. jurisdiction where "the offender or the

person seized or detained is a national of the United States," is satisfied. The statute's

jurisdictional requirement has been met regardless of whether or not Yunis was "found"

within the United States under section 1203(b)(1)(B).

17

Appellant's argument that we should read the Hostage Taking Act differently to avoidtension with international law falls flat. Yunis points to no treaty obligations of the United

States that give us pause. Indeed, Congress intended through the Hostage Taking Act to

execute the International Convention Against the Taking of Hostages, which authorizes any

signatory state to exercise jurisdiction over persons who take its nationals hostage "if that

State considers it appropriate." International Convention Against the Taking of Hostages,

opened for signature Dec. 18, 1979, art. 5, para. 1, 34 U.N. GAOR Supp. (No. 39), 18

I.L.M. 1456, 1458. See H.R. CONF. REP. No. 1159, 98th Cong., 2d Sess. 418 (1984),

reprinted in 1984 U.S.CODE CONG. & ADMIN.NEWS 3182, 3710, 3714.

18

Nor is jurisdiction precluded by norms of customary international law. The district court

concluded that two jurisdictional theories of international law, the "universal principle" and

the "passive personal principle," supported assertion of U.S. jurisdiction to prosecute Yunis

on hijacking and hostage-taking charges. See Yunis, 681 F.Supp. at 899-903. Under the

universal principle, states may prescribe and prosecute "certain offenses recognized by the

community of nations as of universal concern, such as piracy, slave trade, attacks on or

hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism," evenabsent any special connection between the state and the offense. See RESTATEMENT

(THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES Secs. 404, 423



(1987) [hereinafter RESTATEMENT]. Under the passive personal principle, a state may

punish non-nationals for crimes committed against its nationals outside of its territory, at

least where the state has a particularly strong interest in the crime. See id. at Sec. 402

comment g; United States v. Benitez,741 F.2d 1312, 1316 (11th Cir.1984) (passive

personal principle invoked to approve prosecution of Colombian citizen convicted of

shooting U.S. drug agents in Colombia), cert. denied, 471 U.S. 1137, 105 S.Ct. 2679, 86

L.Ed.2d 698 (1985).

19

Relying primarily on the RESTATEMENT, Yunis argues that hostage taking has not been

recognized as a universal crime and that the passive personal principle authorizes

assertion of jurisdiction over alleged hostage takers only where the victims were seized

because they were nationals of the prosecuting state. Whatever merit appellant's claims

may have as a matter of international law, they cannot prevail before this court. Yunis

seeks to portray international law as a self-executing code that trumps domestic law

whenever the two conflict. That effort misconceives the role of judges as appliers of

international law and as participants in the federal system. Our duty is to enforce the

Constitution, laws, and treaties of the United States, not to conform the law of the land to

norms of customary international law. See U.S. CONST. art. VI. As we said in Committee

of U.S. Citizens Living in Nicaragua v. Reagan,859 F.2d 929 (D.C.Cir.1988): "Statutes

inconsistent with principles of customary international law may well lead to international

law violations. But within the domestic legal realm, that inconsistent statute simply modifies

or supersedes customary international law to the extent of the inconsistency." Id. at 938.See also Federal Trade Comm'n v. Compagnie de Saint-Gobain-Pont-a-Mousson,636

F.2d 1300, 1323 (D.C.Cir.1980) (U.S. courts "obligated to give effect to an unambiguous

exercise by Congress of its jurisdiction to prescribe even if such an exercise would exceed

the limitations imposed by international law").

20

To be sure, courts should hesitate to give penal statutes extraterritorial effect absent a

clear congressional directive. See Foley Bros. v. Filardo,336 U.S. 281, 285, 69 S.Ct. 575,

577, 93 L.Ed. 680 (1949); United States v. Bowman,260 U.S. 94, 98, 43 S.Ct. 39, 41, 67

L.Ed. 149 (1922). Similarly, courts will not blind themselves to potential violations of

international law where legislative intent is ambiguous. See Murray v. The Schooner

Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804) ("[A]n act of congress

ought never to be construed to violate the law of nations, if any other possible construction

remains...."). But the statute in question reflects an unmistakable congressional intent,

consistent with treaty obligations of the United States, to authorize prosecution of those

who take Americans hostage abroad no matter where the offense occurs or where the

offender is found. Our inquiry can go no further.2. Antihijacking Act

21





http://openjurist.org/336/us/281











The Antihijacking Act provides for criminal punishment of persons who hijack aircraft

operating wholly outside the "special aircraft jurisdiction" of the United States, provided that

the hijacker is later "found in the United States." 49 U.S.C. App. Sec. 1472(n). Flight 402, a

Jordanian aircraft operating outside of the United States, was not within this nation's

special aircraft jurisdiction. See 49 U.S.C. App. Sec. 1301. Yunis urges this court to

interpret the statutory requirement that persons prosecuted for air piracy must be "found" in

the United States as precluding prosecution of alleged hijackers who are brought here to

stand trial. But the issue before us is more fact-specific, since Yunis was indicted for air

piracy while awaiting trial on hostage-taking and other charges; we must determine

whether, once arrested and brought to this country on those other charges, Yunis was

subject to prosecution under the Antihijacking Act as well.

22

The Antihijacking Act of 1974 was enacted to fulfill this nation's responsibilities under the

Convention for the Suppression of Unlawful Seizure of Aircraft (the "Hague Convention"),

which requires signatory nations to extradite or punish hijackers "present in" their territory.

Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, art. 4, para.

2, Dec. 16, 1970, 22 U.S.T. 1643, 1645, T.I.A.S. No. 7192. See H. REP. No. 885, 93d

Cong., 2d Sess. 10 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 3975, 3978;

S. REP. No. 13, 93d Cong., 1st Sess. 1, 3 (1973). This suggests that Congress intended

the statutory term "found in the United States" to parallel the Hague Convention's "present

in [a contracting state's] territory," a phrase which does not indicate the voluntarinesslimitation urged by Yunis. Moreover, Congress interpreted the Hague Convention as

requiring the United States to extradite or prosecute "offenders in its custody," evidencing

no concern as to how alleged hijackers came within U.S. territory. S. REP. No. 13, 93d

Cong., 1st Sess. at 3; see H. REP. No. 885, 93d Cong., 2d Sess. at 10, 1974 U.S.Code

Cong. & Admin.News 3978 (Hague Convention designed to close "gap" in Tokyo

Convention, which did not require states to prosecute or extradite hijackers "in [their]

custody"). From this legislative history we conclude that Yunis was properly indicted under

section 1472(n) once in the United States and under arrest on other charges.

23

The district court correctly found that international law does not restrict this statutory

jurisdiction to try Yunis on charges of air piracy. See Yunis, 681 F.Supp. at 899-903.

Aircraft hijacking may well be one of the few crimes so clearly condemned under the law of

nations that states may assert universal jurisdiction to bring offenders to justice, even when

the state has no territorial connection to the hijacking and its citizens are not involved. See

id. at 900-01; United States v. Georgescu, 723 F.Supp. 912, 919 (E.D.N.Y.1989);

RESTATEMENT Sec. 404 & reporters' note 1, Sec. 423; Randall, Universal Jurisdictionunder International Law, 66 TEX.L.REV. 785, 815-34 (1988). But in any event we are

satisfied that the Antihijacking Act authorizes assertion of federal jurisdiction to try Yunis



regardless of hijacking's status vel non as a universal crime. Thus, we affirm the district

court on this issue.

3. Legality of Seizure

24

Yunis further argues that even if the district court had jurisdiction to try him, it should have

declined to exercise that jurisdiction in light of the government's allegedly outrageous

conduct in bringing him to the United States. This claim was rejected by the district court

before trial. See United States v. Yunis, 681 F.Supp. 909, 918-21 (D.D.C.1988), rev'd on

other grounds,859 F.2d 953 (Yunis I ).

25

Principally, Yunis relies on United States v. Toscanino,500 F.2d 267 (2d Cir.1974), in which

the court held that due process requires courts to divest themselves of personal

jurisdiction acquired through "the government's deliberate, unnecessary and unreasonable

invasion of the accused's constitutional rights." Id. at 275. Toscanino establishes, at best,

only a very limited exception to the general rule (known as the "Ker-

1991030650;8022;1952117212;RP;;;

26

Even assuming, arguendo, that a district court could correctly dismiss a case otherwise

properly before it for the reasons given in Toscanino, we find no merit in Yunis' claim. In

Yunis I, we reviewed the facts of Operation Goldenrod in some detail, including thedeception used to arrest Yunis, his injuries and hardships while in custody, and the delay

between his arrest and arraignment in the United States. The court sought to determine

whether or not these circumstances voided Yunis' waiver of Fifth and Sixth Amendment

rights; we concluded that while the government's conduct was neither "picture perfect" nor

"a model for law enforcement behavior," the "discomfort and surprise" to which appellant

was subjected did not render his waiver invalid. Yunis I, 859 F.2d at 969. Similarly, we now

find nothing in the record suggesting the sort of intentional, outrageous government

conduct necessary to sustain appellant's jurisdictional argument. Cf. Sami v. United States,

617 F.2d 755, 774 (D.C.Cir.1979) (finding "no shocking behavior characterized by

abduction or brutality which would support an actionable constitutional claim").

B. Posse Comitatus Act

27

Next, Yunis appeals from the district court's denial of his motion to dismiss on the basis of

the government's alleged violation of the Posse Comitatus Act, 18 U.S.C. Sec. 1385

(1988), which establishes criminal penalties for willful use of "any part of the Army or the

Air Force" in law enforcement, unless expressly authorized by law. See United States v.Yunis, 681 F.Supp. 891 (D.D.C.1988). Despite the Posse Comitatus Act's express









limitation to the Army and Air Force, appellant seeks dismissal of the indictment on the

grounds that the Navy played a direct role in Operation Goldenrod.

28

We cannot agree that Congress' words admit of any ambiguity. By its terms, 18 U.S.C.

Sec. 1385 places no restrictions on naval participation in law enforcement operations; an

earlier version of the measure would have expressly extended the bill to the Navy, but the

final legislation was attached to an Army appropriations bill and its language was

accordingly limited to that service. See H.R. REP. No. 71, Part II, 97th Cong., 1st Sess. 4

(1981), reprinted in 1981 U.S.Code Cong. & Admin.News 1781, 1786 [hereinafter H.R.

REP. No. 71]; Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13

AM.CRIM.L.REV. 703, 709-10 (1976). Reference to the Air Force was added in 1956,

consistent with reassignment of Army aviation responsibilities to that new branch of the

military. See H.R. REP. No. 71 at 4, 1981 U.S.Code Cong. & Admin.News 1786. Nothing in

this history suggests that we should defy the express language of the Posse Comitatus Act

by extending it to the Navy, and we decline to do so. Accord United States v. Roberts,779

F.2d 565, 567 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84 (1986);

see H.R. REP. No. 71 at 4, U.S.Code Cong. & Admin.News 1786 (Navy "not legally bound"

by Posse Comitatus Act).

29

Furthermore, some courts have taken the view that the Posse Comitatus Act imposes no

restriction on use of American armed forces abroad, noting that Congress intended topreclude military intervention in domestic civil affairs. See Chandler v. United States, 171

F.2d 921, 936 (1st Cir.1948), cert. denied, 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081

(1949); D'Aquino v. United States,192 F.2d 338, 351 (9th Cir.1951), cert. denied, 343 U.S.

935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952). And even if these difficulties could be overcome,

a remedial problem would remain, as dismissal of all charges against Yunis might well be

an inappropriate remedy if violations of the Posse Comitatus Act were found. See United

States v. Cotten,471 F.2d 744, 749 (9th Cir.) (rejecting dismissal as remedy for alleged

violation of Posse Comitatus Act on Ker-Frisbie grounds), cert. denied, 411 U.S. 936, 93

S.Ct. 1913, 36 L.Ed.2d 396 (1973); see also United States v. Hartley,796 F.2d 112, 115

(5th Cir.1986) (noting courts' hesitation to adopt exclusionary rule for violations of Posse

Comitatus Act); United States v. Roberts, 779 F.2d at 568 (refusing to adopt exclusionary

rule).

30

Nor is Yunis helped by 10 U.S.C. Sec. 375 (1988), which requires the Secretary of

Defense to issue regulations prohibiting "direct participation" by military personnel in a

civilian "search, seizure, arrest, or other similar activity" unless expressly authorized bylaw. Reliance on this provision faces the same remedial hurdle as direct reliance on the

Posse Comitatus Act: Under the Ker-Frisbie doctrine, outright dismissal of the charges













against Yunis would not be an appropriate remedy for legal violations relating to his arrest.

See United States v. Crews, 445 U.S. at 474, 100 S.Ct. at 1251. Nor would a violation of

the regulations at issue amount to a constitutional violation, making application of an

exclusionary rule or similar prophylactic measures inappropriate. See United States v.

Caceres,440 U.S. 741, 754-55, 99 S.Ct. 1465, 1472-73, 59 L.Ed.2d 733 (1979).

31

In any event, we agree with the district court that no governmental illegality occurred.

Regulations issued under 10 U.S.C. Sec. 375 require Navy compliance with the restrictions

of the Posse Comitatus Act, but interpret that Act as allowing "indirect assistance" to

civilian authorities that does not "subject civilians to the exercise of military power that is

regulatory, proscriptive, or compulsory in nature." 32 C.F.R. Sec. 213.10(a)(7) (1987). The

regulations are consistent with judicial interpretations of the Posse Comitatus Act; in fact,

they incorporate one of three tests employed to identify violations. See Yunis, 681 F.Supp.

at 892 (setting out three tests); United States v. McArthur, 419 F.Supp. 186, 194

(D.N.D.1975) ("[T]he feared use which is prohibited by the posse comitatus statute is that

which is regulatory, proscriptive or compulsory in nature ...."), aff'd sub nom. United States

v. Casper,541 F.2d 1275 (8th Cir.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52

L.Ed.2d 362 (1977).

32

The district court found that Navy personnel played only a "passive" role in housing,

transporting, and caring for Yunis while he was in the custody of the FBI, and that "[n]oneof the Navy's activities constituted the exercise of regulatory, proscriptive, or compulsory

military power." Yunis, 681 F.Supp. at 895-96. Nor did the Navy's participation in Operation

Goldenrod violate either of the other judicial tests for violations of the Posse Comitatus Act:

The Navy's role did not amount to "direct active involvement in the execution of the laws,"

and it did not "pervade the activities of civilian authorities." Id. at 895. We see no error in

this assessment of the record, and accordingly conclude that no violation of military

regulations occurred.

C. Discovery Claim

33

Yunis appeals from the district court's denial of his motion to dismiss on the basis that pre-

trial discovery provisions of the Classified Information Procedures Act (CIPA), 18 U.S.C.

App. (1988), infringe upon procedural protections guaranteed him by the Fifth and Sixth

Amendments. See Pretrial Memorandum Order No. 13, Yunis, Crim. No. 87-0377 (D.D.C.

Feb. 15, 1989), reproduced in Appellant's Appendix at Tab 14. In light of our holding in

Yunis II that CIPA "creates no new rights of or limits on discovery" of classified material,

but only requires courts to consider secrecy concerns when applying general discoveryrules, we find no merit in this claim. Yunis II, 867 F.2d at 621-22; accord United States v.

Anderson,872 F.2d 1508, 1514 (11th Cir.) ("[N]o new substantive law was created by the










enactment of CIPA."), cert. denied, --- U.S. ----, 110 S.Ct. 566, 107 L.Ed.2d 560 (1989); cf.

United States v. Pringle,751 F.2d 419, 427-28 (1st Cir.1984) (rejecting due process

challenge to protection of classified information against discovery).

34

Yunis also objects to the district court's refusal to order the government to produce records

of conversations between Flight 402 and the Beirut control tower. After ex parte, in camera

review of classified materials relevant to Yunis' various discovery requests, the trial court

ordered disclosure of numerous documents, including "[a]ll audio or video tapes and/or

transcripts of conversations between defendant and all airport authorities covering the

period of the alleged hijacking...." Order, Yunis, Crim. No. 87-0377 (D.D.C. July 18, 1988),

reproduced in Appellant's Appendix at Tab 7. Upon the government's motion for

reconsideration, however, the court narrowed this disclosure order by excluding materials,

including tapes and transcripts of conversations with airport authorities, that "do not help

the defendant's cause." Pretrial Memorandum Order No. 6, Yunis, Crim. No. 87-0377,

1988 WL 16302 (Sept. 27, 1988), reproduced in Appellant's Appendix at Tab 9. Yunis

subsequently renewed his request for conversations between Yunis and the Beirut tower,

claiming that these transcripts were "vital to understand what outside influence or 'orders'

were being transmitted to the hijackers by person(s) not on the plane." See Defendant's

Reply to Government's Opposition to Defendant's Sixth Motion to Compel Discovery at 5

(filed Feb. 22, 1989), reproduced in Appellant's Appendix at Tab 13. Relying on its earlier

rulings, the district court denied the request. Pretrial Memorandum Order No. 16, Yunis,

Crim. No. 87-0377 (Feb. 27, 1989), reproduced in Appellant's Appendix at Tab 15. Yunisnow appeals from that denial.

35

To prevail on a discovery request for classified information, a defendant must make a

threshold showing that the requested material is relevant to his case. Yunis II, 867 F.2d at

623. If this "low hurdle" is successfully jumped, the court must determine whether or not

the government has asserted a "colorable" claim to privilege. If the government has

asserted such a claim, the defendant must show that the information would be helpful to

his defense. Id. We never have had occasion to adopt a rule to guide trial courts when all

these showings are made, and we do not do so here; other circuits, however, have

endorsed a balancing approach. See United States v. Sarkissian,841 F.2d 959, 965 (9th

Cir.1988); United States v. Smith,780 F.2d 1102, 1110 (4th Cir.1985).

36

Having ourselves reviewed in camera the government's classified submissions to the

district court, we find very little in them that is both responsive to the discovery request at

issue and relevant in any way to Yunis' trial. We certainly agree with the court below thatthey reveal no information within the scope of Yunis' discovery request that would have

helped him at trial. Moreover, Yunis II establishes that the government has at least a









colorable interest in avoiding release of information that might reveal "the time, place, and

nature of the government's ability to intercept the conversations at all." Yunis II, 867 F.2d at

623. Under these circumstances, the district court properly declined to order the

government to release classified information responsive to Yunis' discovery request.

D. Jury Instructions

37

Lastly, Yunis challenges the district court's instructions to the jury insofar as they relate to

intent requirements of the federal hostage taking, hijacking, and conspiracy statutes and to

appellant's affirmative defense of obedience to military orders. In so doing, appellant does

not come before an "impregnable citadel[ ] of technicality." United States v. Hasting,461

U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983) (quoting R. TRAYNOR, THE

RIDDLE OF HARMLESS ERROR 14 (1970) (citation omitted)). Trial courts, not the courts

of appeals, are the principal bulwarks against injustice in our judicial system, and their

resolution of the myriad questions that arise in the course of a criminal trial must be

afforded deference. As the Supreme Court has "stressed on more than one occasion, the

Constitution entitles a criminal defendant to a fair trial, not a perfect one." Delaware v. Van

Arsdall,475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986) (citations

omitted). In particular, appellate judges ought not substitute their prejudices regarding jury

instructions or their notions of apt phraseology for the experience of trial judges in such

matters; our more limited responsibility is to ensure that the law is correctly stated for jurors

to apply. Where the indispensable prerequisites for a fair trial have been afforded, we will

not overturn a conviction just because an awkward word was used in instructing the jury, oreven because we would have sustained a defense objection that was overruled. Instead,

we look at the entire record of the proceedings below and ignore errors that do not

undermine confidence in the conviction when viewed in light of all that took place. See

Rose v. Clark,478 U.S. 570, 576-79, 106 S.Ct. 3101, 3105-07, 92 L.Ed.2d 460 (1986);

Hasting, 461 U.S. at 507-09, 103 S.Ct. at 1979-81; Chapman v. California,386 U.S. 18,

21-24, 87 S.Ct. 824, 826-28, 17 L.Ed.2d 705 (1967); Kotteakos v. United States,328 U.S.

750, 762-65, 66 S.Ct. 1239, 1246-48, 90 L.Ed. 1557 (1946). With these precepts in mind,

we now turn to appellant's specific allegations of error in the instructions given by the trial

judge.

1. Intent Requirements

38

Yunis claims that the Antihijacking Act, 49 U.S.C.App. Sec. 1472(n), and the Hostage

Taking Act, 18 U.S.C. Sec. 1203, make specific intent an element of the offenses they

establish, and that the district court erred in failing to adopt jury instructions offered by the

defense that would have made this clear. In appellant's view, the trial judge's instruction

that Yunis could be convicted on these counts only if he acted "intentionally, deliberatelyand knowingly" was inadequate. Transcript of Jury Instructions, March 10, 1989, at 17-18,

20 [hereinafter "Instructions"].

















39

49 U.S.C. App. Sec. 1472(n) suggests no specific intent requirement on its face,

criminalizing any "unlawful" hijacking of an aircraft. Nor do judicial interpretations of related

statutes support appellant's position. In fact, courts have interpreted a companion provision

criminalizing domestic hijacking, 49 U.S.C. App. Sec. 1472(i), as requiring only general

criminal intent, even though (unlike section 1472(n)) it specifies that hijackers must act with

"wrongful intent." See United States v. Castaneda-Reyes,703 F.2d 522, 525 (11th Cir.),

cert. denied, 464 U.S. 856, 104 S.Ct. 174, 78 L.Ed.2d 157 (1983); United States v. Busic,

592 F.2d 13, 21 (2d Cir.1978); United States v. Bohle,445 F.2d 54, 60 (7th Cir.1971). In

light of these decisions, and absent any encouragement from Congress, we decline Yunis'

invitation to graft a specific intent requirement onto the Antihijacking Act.

40

Yunis' claim that the Hostage Taking Act requires specific intent also fails. The statutory

language suggests no intent requirement other than that the offender must act with the

purpose of influencing some third person or government through the hostage taking, a

point on which the jury received proper instructions. See Instructions at 17 (quoting 18

U.S.C. Sec. 1203(a)). Nor are we aware of any legislative history suggesting that Congress

meant to impose a specific intent requirement. Thus, we conclude that the trial judge's

instructions on this count of the indictment accorded with law.

41

We find no merit in Yunis' objection (not raised at trial) that the district court failed to

instruct the jury that specific intent is a necessary element of the crime of conspiracy. True,

"the specific intent required for the crime of conspiracy is in fact the intent to advance or

further the unlawful object of the conspiracy." United States v. Haldeman,559 F.2d 31, 112

(D.C.Cir.1976) (footnote omitted), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d

250 (1977). But the jury received instructions that the government "must show beyond a

reasonable doubt that the conspiracy was knowingly formed and that the defendant willfully

participated in the unlawful plan with the intent to advance or further some object or

purpose of the conspiracy." Instructions at 10. We discern no defect in this instruction.

42

Yunis further contends that, whatever level of criminal intent was required for these

offenses, the district court failed to sufficiently articulate the government's burden of

proving that intent. Because this alternative claim was not raised at trial, Yunis must show

"plain error." FED.R.CRIM.P. 52. The instructions, however, made it abundantly clear that

the government had the burden of proving the requisite intent beyond a reasonable doubt.

See Instructions at 10 (conspiracy charge), 17-18 (hostage taking), 27 (generalinstructions on willfulness and burden of proof). There was no error.

2. Obedience to Military Orders











not developed any test for determining whether or not defendants who invoke the

obedience defense actually belong to bona fide military organizations. But the government

responds that courts have not developed such a test simply because the issue has not

arisen in U.S. courts; heretofore, the defense has been raised only by members of the

United States armed forces. In the government's view, the district court properly adapted

its instructions on the obedience defense when faced with novel factual circumstances.

48

We agree that the district court did not commit legal error when it looked beyond domestic

precedents to give jurors guidance in evaluating the Amal Militia's military credentials.

Moreover, we find that the test of a bona fide military organization adopted by the district

court reflects inter national practice, providing assurance that Yunis did not suffer from

parochial projection of American norms onto the issue of whether he should be treated as

a soldier for purposes of the obedience defense.

49

Specifically, the district court's uniform instruction finds sufficient support in international

agreements that bear on the question. See Geneva Convention Relative to the Treatment

of Prisoners of War, opened for signature Aug. 12, 1949, art. 4(A)(2), 6 U.S.T. 3317, 3320,

T.I.A.S. No. 3364 [hereinafter Geneva Convention]; Hague Convention No. IV Respecting

the Law and Customs of War on Land, Oct. 18, 1907, annex Sec. I, ch. I, art. 1, 36 Stat.

2277, 2295-96, T.S. No. 539 [hereinafter Hague Convention No. IV]. The Geneva

Convention, signed by 167 nations including the United States and Lebanon, establishes"having a fixed and distinctive signal recognizable at a distance" as one of four necessary

conditions that qualify the members of a militia for treatment as prisoners of war. See 6

U.S.T. at 3320. The Hague Convention No. IV, to which the United States and forty-two

other nations are parties, uses having "a fixed distinctive emblem recognizable at a

distance" as a test for whether militiamen and members of volunteer corps have the rights

and responsibilities of national armies. See 36 Stat. at 2295-96. At oral argument, counsel

for appellant disavowed reliance on the district court's substitution of "uniform" for "signal"

or "emblem," and we agree that this free interpretation of the treaty language did not

prejudice the defense.

50

Yunis' second objection to the district court's "military organization" test relates to the

instruction, tracking language found in article 4 of the Geneva Convention and chapter I of

the annex to the Hague Convention No. IV, that militias must "conduct [their] operations in

accordance with the laws and customs of war" to qualify as military organizations.

Instructions at 34. Appellant alleges that this instruction must be considered in tandem with

the trial judge's statement to the jury that the hijacking of Flight 402 violated internationallaw. Together, he says, these instructions directed the jury to conclude that the defense of



The Court, by an examination of the scope of Article 3, paragraph 2, of the Treaty of

Lausanne, has thus arrived at the conclusion that that clause is designed to provide for a

definitive settlement af the frontier. It will now proceed more closely ta consider. with

reference to the explanatory phrase appended to the first of the questions put, whai the

nature of this decision may be. If the word "arbitration" is talcen in a wide sense,

characterized simply by the binding force of the pronouncement made by a third Party to

whom the interested Parties have had recourse, it may well be said that the decision in

question is an "arbitral award". This term, on the other hand, would hardly be the right one,

if the intention were to convey a cornmon and more limited conception of arbitration,

namely, that which has £or its object the settle-' ment of differences between States by

jadges of their own choice - and 0% the basis of resfiect for law (Hague Convention for the

pacific settlement of international disputes, dated October 18th, 1907, Article 37). It

appears, in fact, that accarding to the arguments put fonvard on both sides before the

Council, the settlement of the dispute in question depends, at al1 events for the most part,

on considerations not of a legal character ; moreover, it is impossible, properly speaking, to

regard the Council, acting in its capacity of an organ of the League of Nations, as will. be

hereinafter described, as a tribunal of arbitrators. For this reason, the Court feels that it

should not attach any importance either to certain consequences which legal doctrine

endeavours to deduce from the idea of arbitration, or to certain rules of procedure adopted

by courts or arbitration themselves, though both have been cited by the British

Go~ernment. It will rather seek the answer to the question before it in considerations which

seem peculiarly appropriate to the present case.

INTERHANDEL CASE



---------------

31. INTERHANDEL CASE (PRELIMINARY OBJECTIONS) Judgment of 21 March 1959

The Interhandel Case, between Switzc:rland and the United States of America, was

submitted to the Court by an Application of the Swiss Government on Ocbober 2nd, 1957,

relating to a dispute which had arisen with regard to the claim by Switzerland to the

restitution by the United States of America of the assets of the Interhandel Company. The

Application invoked Article 36, paragraph 2, of the Statute of the Court and the acceptance

of the compulsory jurisdiction of the Court by the United States and ty Switzerland. For its

part, the Government of the United Sitates submitted preliminary objections to the

jurisdiction of the Court. The Court, upholding one of these objections, found the Swiss

Application inadmissible. In its Judgment, the Court sets out the facts and circumstances

out of which the dispute arose. In 1942, the Government of the United States, under theTrading with the Enemy Act, vested almost rlll of the shares of the General Aniline and Film

Corporation (GAR, a company incorporated in the United States, on the ground that those







shares in reality belonged to the I.G. Falrben Company of Frankfurt or that the GAF was in

one way 'or another controlled by that enemy company. It is not disputed that until 1940

I.G. Farben controlled the GAF through the I.G. Chemie Company of Basle. However,

acconling to the contention of the Swiss Government, the links between the German

company and the Swiss company were finally severed in 1940. The Swiss company

adopted the name of Socit?tt? internationale pour participations industrielles el'

commerciales S.A. (Interhandel) and the largest item in its; assets was its participation in

the GAR In 1945, under a prosvisional agreement between Switzerland, the United States,

France and the United Kingdom, property in Switzerland bel.onging to Germans in

Germany was blocked. The Swiss Compensation Office was entrusted with the task of

uncovering such prop erty. In the course of those investigations, the question of the

character of Interhandel was raised, but the Oiffice, considering it to have been proved that

this company had severed its ties with the German company, did not regard it as

necessary to undertake the blocking of its assets in Switzerland. For its part, the

Government of the United States, considering that Interhandel was still controlled by I.G.

Farben, continued to seek evidence of such control. In these circ~imstances, the Swiss

Federal Authcdties ordered the Swiss Compensation Office provisionally .to block the

assets of Interhandel. On May 25th, 1!946, an agreement was concluded in Washington

between the Allies and Switzerland. Switzerland undertook to pursue its investigations and

to liquidate German property in Switzerland. The Compensation Office was empowered to

do this, in collaboration with a Joint Commission composed of' representatives of each of

the four Governments. In the event of disagreement between the Joint Commission and

the Compensation Office, or if the party in interest so desired, the matter might besubmitted to a Swiss Authority of Review.. On the other hand, the Government of the

United States was to unblock Swiss assets in the United States (Articb IV). Finally, in case

differences of opinion arose with regard to the application or interpretation of the Accord

which could not be settled in any other way, recourse was to be had to arbitration. After the

conclusi~on of the Washington Accord, discussions with regard to Interhandel were

continued without reaching any conclusion. By its decision of January 5th. 1948, the Swiss

Authority of Review annulled the blocking of the Company's assets in Switzerland. In a

Note of May 4th of the same year to the Department of State, the Swiss Legation in

Washington invoked this decision and the Washington Accord to request the United States

to restore to Interhandel the property which had been vested in the United States. On July

26th, the Department of State rejected this request, contending that the decision of the

Swiss Authority of Review did not affect the assets vested in the United States. On October

21st, Interhandel, relying upon the provisions of the 'Itading with the Ene:my Act, instituted

proceedings in the United States courts. Up to 1957, these proceedings made little

progress on the merits. A Swiss Note of August 9th. 1956, formulated proposals for the

settlement of the dispute either by means of arbitration or conciliation as provided for in the

Treaty between Switz~aland and the United States of 193 1, or by means of arbitration asprovided for in the Washington Accord. These proposals were rejected by the Government

of the United States in a Note of January 1 lth, 1957. Furthermore, in a Memorandum



appended to the Note, it was said that Interhandel had finally failed in its suit in the United

States courts. It was then that the Swiss Government addressed to the Cor;ut its

Application instituting the proceedings. The Court finds that the subject of the claim is

expressed essentially in two prolmsitions: the Court is asked to adjudge Continued on next

page Summaries of Judgments, Advisory Opinions and Orders of the International Court

of Justice Not an official document and declare, as a principal submission, that the

Government reason that such seizure and retention are, according to interof the United

States is under an obligation to restore the national law, matters within the jurisdiction of

the United assets of Interhandel and, as iln alternative submission, that States. With regard

to the principal Submission, the Swiss the United States is under an oibligation to submit

tlhe dispute Government invokes Article IV of the Washington Accord, to arbitration or to a

conciliatilon prucedure. concerning which the Government of the United States conThe

Court then proceeds to consider fie Reliminary tends that it is of no relevance whatsoever.

The Parties are in Objections of the United State!!$. disagreement with regard to the

meaning of the terms of this The seeks a declaration that the court is article. It is sufficient

for the Court to note that Article IV without jurisdiction on the I!round that the dispute may

be of relevance for the solution of the dispute and that its before August 26*, 1946, the:

date on which the acceptance interpretation relates to international law. On the other hand,

of the compulsory jurisdictioln of the Court by the United the Government of the United

States submits that according States came into force. The dl!claration of tht: United States

to international law the seizure and retention of enemy proprelates to legal disputes

"herenfter arising" the G~~~~- . erty in time of war are matters within the domestic

jurisdicmerit of the United states mailltains that the clispute submit- tion of the UnitedStates. But the whole question is whether ted to the Court goes back at ]east to the middle

d the year the of Interhandel are enemy Or property and 1945. An examination dixuments

reveals that it was in this is a matter which must be decided in the light of the printhe N~~

swiss ~~~~~i~~ in Washington datedl M~~ 4th. ciples and rules of international law. In its

alternative Sub- 1948, that a request for the return to Interhandlel of the assets mission,

the s~''' Government invokes Washington vested in the united states was formulated by

switzerland Accord and the Treaty of Arbitration and Conciliation of for the first time. the

negative reply was given on ~~l~ 193 1. The interpretation and application of these

provisions 26th. 1948, the dispute can be ,,laced at that date and the ~i~~ involve

questions of international law. Part (b) of the Fourth Objection must be rejected so far as

the principal Submission Objection must therefore be rejected. of Switzerland is

concerned. In the alternative Submission, Part (a) of this Objection seeks a finding from

the Court the point in dispute is the obligation of the Government of the that it is without

jurisdiction for the reason that the sale or disUnited States to submit to arbitration or

con~cilia~tion. This position of the shares vested have been determined by the part of the

dispute can only have arisen subsequently to that United States, pursuant to paragraph (b)

of the conditions relating to the restitution of Inlsrhandel's assets in the United attached toits acceptance of the compulsory jurisdiction of States, since the procedure proposed by

S~vitzerland was the Court, to be a matter essentially within its domestic jurisconceived as



a means of settli~rrg the first dispute. In fact, the diction. It appears to the Court that part

(a) of the Fourth Swiss Government put for~ar~cl this proposal for the first time Objection

only applies to the claim of the Swiss Government in its Note of August 9th, 1956, and the

Government of the regarding the restitution of the vested assets and, having United States

rejected it by its Note of January 1 lth, 1957. regard to the decision of the Court in respect

of the Third The First Preliminary Objection cannot therefore be upheld Objection, it is

without object at the preseint stage of the with regard to the alternative Submission of

Switzerland. proceedings. According to the Second Preliminary Objection, the dis- The

Third Preliminary Objection seeks a finding that there pute, even if it is subsequent tl3 the

Declaration of the United is no jurisdiction in the Cow for the reason that Interhandel

States, arosebeforeJu1~ 28th 1948, thedateof theentry into has not exhausted the local

remedies available to it in the force of the Swiss Declaration. The United I'itates Declara-

United $;tates courts. Although framed as an objection to the tion contains a clause limiting

.the Court's jurisdiction to dis- jurisdiction of the Court, this Objection must be regarded as

pUkS "hereafter iUiSing", while no Such qudjlfying clause is directed against the

admissibility of the Application. Indeed, contained in the Swiss DeclZUk3tion. But the

reciprocity prin- it would become devoid of object if the requirement of the ciple would

require that as ktw~n the United States and prior exhaustion of local remedies were

fulfilled. The Court Switzerland the Court's jurisdiction should be: limited to dis- has

indicated in what conditions the Swiss Government conPueS arising after July 28th 11948.

The Cou:fl remarks that sidered itself entitled to institute proceedings by its Applica-

reciprocity in the case of Ikclmations acceptilng the compul- tion of October 2nd, 1957.

However, the Supreme Court of SoV jurisdiction of the Court enables a Party to invoke ares- the United States has, since then, readmitted Interhandel into ervation which it has not

expre:ssed in its own 1)eclmtion but the suit and remanded the case to the District Court

(deci- which the other Party has expressed in its D~:claration. For sionsof October 14th.

1957, and June 16th. 1958). Interhanexample, Switzerland might, if in the position of

Respon- del can avail itself again of the remedies available under the dent, invoke the

American rr:servation against the United fiding with the Enemy Act and its suit is still1

pending. The States by virtue of reciprocity!, if the United Slates attempted Swiss

Government does not challenge the rule concerning to refer to the Court a dispute which

had arisen before August the exhaustion of local remedies but contends that the present

26th. 1946. There the effect of reciprocity e:nds. It cannot case is one in which an

exception is authorized by the rule justify a State, in this instance: the United Sbltes, in

relying itself. In the first place, the measure taken against Interhanupon a restriction which

the other Party, Switzerland, has not del was taken, not by a subordinate authority but by

the Gov- included in its own Declaration. The Second Objection must ernment of the

United States, However, the Court must therefore be rejected So far a!; the principal

Subnnission of attach decisive importance to the fact that the laws of the Switzerland is

concerned. Silolce it has kn found that the United States make available to interestedpersons adequate dispute concerning the obligiition of the Ullited States to remedies for

the defence of their rights against the Executive. agree to arbitration or conciliiltion did not



arise until 1957, On the other hand, in proceedings based upon the pading this objection

must also be rejected SO far as the a~lternative with the Enemy Act, the United States

courts are, it is conSubmission is concerned. tended, ]not in a position to adjudicate in

accordance with the The Court then considers the Fourth Prelitrinury Objec- rules of

international law. But the decisions of the United tion and, in the first place, M: (b) of that

Objection, in which States courts bear witness to the fact that United States courts the

Government of the United. States submits that there is no are competent to apply

international law in their decisions jurisdiction in the Court to hear or determine my issues

con- when nr:cessary. Finally, as the character of the principal cerning the seizure and

retention of the vested shams, for the Submission of Switzerland is that of a claim for the

imple- 47 mentation of the decision given on January .Sth, 1948, by the Swiss Authority of

Review, which decisior~ the Swiss Govemment regards as an international judiciad

decision, there are, it is contended, no local remedies to exhaust, for the injury has been

caused directly to the State. The Court confines itself to observing that this argument does

not deprive the dispute which has been referred to it of the character of a dispute in which

the Swiss Government appears as having adopted the cause of its national for the purpose

of securing the restitution of the vested assets and that ,this is one of the very cases which

give rise to the application of the rule of the exhaustion of local remedies. For all these

reasons, the Court upholds the Third Preliminary Objection so far as the principal

Submission of Switzerland is concerned. The Court considers, moreover, that any

distinction so far as the rule of the exhaustion of local remedies is concerned between the

vatious claims or between the various tribunals is unfounded. It accordingly upholds the

Third Preliminary Objection also as regards the alternative Submission. Consequently, theCourt rejects the First Preliminary Objection (by ten votes to five) and also the Second

(unanimously) and part (b) of the Fourth (by 14 votes to one). The Court finds that it is not

necessary to adjudicate on part (a) of the Fourth Preliminary Objection (by ten votes to

five) and it upholds the Third (:by nine votes to six) and holds that the Aplplication is

inadmissible. Judges Basdevant and Kojevnikov and Judge ad hoc Cany have appended

decl!arations to the Judgment. Judges Hackworth, Cordova, VVellington Koo and Sir Percy

Spender have appended statements of their separate opinions whilst Vice-President

ZafnullaKahn states that he agrees with Judge Hackworth. President Klaestad and Judges

Winiarski, Armand-Ugon, Sir Hersch Lauterpiacht and Spiropoulos have appended to the

Judgment statements of their dissenting opinions while Judge ad hoc Cany states in his

declaration that he agrees with President Klaestad.

NORWEGIAN LOANS CASE (FRANCE V. NORWAY)

Facts

This matter involved a dispute between France and Norway over various loans issued

between 1885 and 1909 by the Kingdom of Norway and Norwegian banks. The loans inquestion were issued on French and other foreign markets. The dispute was focused

around whether the bonds contained a gold clause. France contended that the borrower's



obligation could only be discharged by payment in gold value. Norway rejected this

contention and suspended the convertibility of the notes in gold in 1914. In 1923 a law was

enacted in Norway providing that "where a debtor has lawfully agreed to pay gold a

pecuniary debt in kroner and where the creditor refuses to accept payment in bank of

Norway notes on the basis of their nominal gold value, the debtor may request the

postponement of payment for such period as a bank is exempted from its obligation to

redeem its notes in accordance with their nominal value". The French claimed this

Norwegian law could not defeat claims of French and other foreign bondholders. Norway

contended that the bondholders' claims fell within the jurisdiction of the Norwegian courts

and Norwegian law. Thirty years of diplomatic activity between the two countries failed to

resolve the issue. The French government therefore then brought the matter before the

Court seeking a determination that that the repayment obligations could only be

discharged by payment of the gold value of the bonds. Norway responded to France's

application by filing Preliminary Objections setting forth jurisdictional defenses which the

court joined to the merits.

Issues

1. Whether the loan contracts were governed by Norwegian law or international law in

accord with paragraph 2 of Article 36.

2. Whether the reservation made by France in its Declaration, by virtue of the reciprocity

clause under Article 36, paragraph 3, barred the claims made by France.

Judgment

The Court chose to first consider Norway's preliminary objection relating to the reciprocity

issue. The declaration filed by France accepting the court's jurisdiction contained the

following statement "this declaration does not apply to differences relating to matters which

are essentially within the national jurisdiction as understood by the government of the

French Republic". Norway argued that principles of reciprocity contained within Article 36,

paragraph 3, as applied to the French Reservation and its own Reservation compelled the

dispute to be resolved within the domestic jurisdiction of Norway. In analyzing this

jurisdictional challenge the court noted "... that the jurisdiction of the court in the present

case depended upon the Declarations made by the parties on condition of reciprocity; and

that since two unilateral declarations were involved such jurisdiction was conferred upon

the court only to the extent to which the declarations coincided in conferring it.

Consequently, the common will of the parties, which was the basis of the court's

jurisdiction, existed within the narrower limits indicated by the French reservation." France

unsuccessfully argued that a treaty signed by the two countries, the Second Hague

Convention of 1907, provided that the payment of any contractual debt between countries

was a matter of international law. The court found that the treaty was not pertinent to theinstant dispute in that it related to arbitration procedures. Accordingly, the Court found in

favor of Norway ruling that the Reservations filed by the parties were dispositive on the



jurisdiction jointly conferred on the Court by the parties and therefore upheld the second

Preliminary Objection put forth by Norway. Judges Guerrero, Basdevant and Read.

-------------

Proceedings in the case of certain Norwegian loans, between France and Norway, had

been instituted by an Application of the French Government which requested the Court to

adjudge that certain loans issued on the French market and on other foreign markets by

the Kingdom of Norway, the Mortgage Bank of the Kingdom of Norway and the

Smallholding and Workers' Housing Bank, stipulated in gold the amount of the borrower's

obligation and that the borrower could only discharge the substance of his debt by the

payment of the gold value of the coupons and of the redeemed bonds. The Application

expressly referred to Article 36(2) of the Statute of the Court and to the Declarations of

Acceptance of the compulsory jurisdiction made by France and by Norway. For its part, the

Norwegian Government raised certain Preliminary Objections which, at the request of the

French Government which the Norwegian Government did not oppose, the Court joined to

the merits.

In its Judgment the Court upheld one of the grounds relied upon by Norway, which the

Court considered more direct and conclusive: the Objection to the effect that Norway was

entitled, by virtue of the condition of reciprocity, to invoke the reservation relating to

national jurisdiction contained in the French Declaration, and that this reservation excluded

from the jurisdiction of the court the dispute which has been referred to it by the Application

of the French Government. Considering that it was not necessary to examine the otherNorwegian Objections or the other submissions of the Parties, the Court found by twelve

votes to three that it was without jurisdiction to adjudicate upon the dispute.

Judge Moreno Quintana declared that he considered that the Court was without jurisdiction

for a reason different from that given in the Judgment. Vice President Badawi and Judge

Sir Hersch Lauterpacht appended to the Judgment of the Court statements of their

individual opinions. Judges Guerrero, Basdevant and Read appended to the Judgment of

the Court statements of their dissenting opinions.

*

* *

In its Judgment the Court recalled the facts. The loans in question were floated between

1885 and 1909; the French Government contended that the bonds contained a gold clause

which varied in form from bond to bond, but which that Government regarded as sufficient

in the case of each bond, this being disputed by the Norwegian Government. The

convertibility into gold of notes of the Bank of Norway having been suspended on various

dates since 1914, a Norwegian law of December 15th, 1923, provided that "where a debtor

has lawfully agreed to pay in gold a pecuniary debt in kroner and where the creditor

refuses to accept payment in Bank of Norway notes on the basis of their nominal goldvalue, the debtor may request a postponement of payment for such period as the Bank is

exempted from its obligation to redeem its notes in accordance with their nominal value".



that in this connection the two States could not therefore speak of domestic jurisdiction.

But the aim of the treaty referred to, the Second Hague Convention of 1907 respecting the

limitation of the employment of force for the recovery of contract debts, was not to

introduce compulsory arbitration; the only obligation imposed by the Convention was that

an intervening power should not have recourse to force before it had tried arbitration. The

Court could, therefore, find no reason why the fact that the two Parties were signatories to

the Second Hague Convention should deprive Norway of the right to invoke the reservation

in the French Declaration. The French Government also referred to the Franco Norwegian

Arbitration Convention of 1904 and to the General Act of Geneva of September 26th, 1928.

Neither of these references, however, could be regarded as sufficient to justify the view

that the Application of the French Government was based upon the Convention or the

General Act: the Court would not be justified in seeking a basis for its jurisdiction different

from that which the French Government itself set out in its Application and by reference to

which the case had been presented by both Parties to the Court.

The Court noted that from one point of view it might be said that the ground of the first

Objection which was based on the reservation in the French Declaration was solely

subsidiary in character. But in the opinion of the Court, the second ground could not be

regarded as subsidiary in the sense that Norway would invoke the French reservation only

in the event of the first ground of this Objection being held to be legally unfounded. The

Court's competence was challenged on both grounds and the Court was free to base its

decision on the ground which in its judgment was more direct and conclusive. Not only did

the Norwegian Government invoke the French reservation, but it maintained the second

ground of its first Objection throughout. Abandonment could not be presumed or inferred; ithad to be declared expressly.

The Court did not consider that it should examine whether the French reservation was

consistent with the undertaking of a legal obligation and was compatible with Article 36,

paragraph 6, of the Statute. The validity of the reservation had not been questioned by the

Parties. It was clear that France fully maintained its Declaration including the reservation,

and that Norway relied upon the reservation. In consequence, the Court had before it a

provision which both Parties to the dispute regarded as constituting an expression of their

common will relating to the competence of the Court. The Court gave effect to the

reservation as it stood and as the Parties recognised it.

For these reasons, the Court found that it was without jurisdiction to adjudicate upon the

dispute which had been brought before it by the Application of the French Government.

NICARAGUA CASE (JURISDICTION AND ADMISSIBILITY)

http://www.icj-cij.org/docket/files/70/6487.pdf (SUMMARY)http://www.icj-cij.org/docket/files/70/6485.pdf







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non-use of force = CILself-defence (an inherent right) is an exception to the rule on non-use of forceHowever, whether the response to an attack is lawful depends on the observance of thecriteria of the necessit and the proportionalit of the !easures taken in self-defence"#hether self-defence be individual or collective, it can onl be exercised in response to an$ar!ed attack"% In the view of the Court, this is to be understood as !eaning not !erelaction b regular ar!ed forces across an international border, but also the sending b a&tate of ar!ed bands on to the territor of another &tate, if such an operation, because ofits scale and effects, would have been classified as an ar!ed attack had it been carriedout b regular ar!ed forces"'he Court does not believe that the concept of $ar!ed attack% includes assistance torebels in the for! of the provision of weapons or logistical or other support" urther!ore,the Court finds that in custo!ar international law, whether of a general kind or thatparticular to the inter- !erican legal sste!, there is no rule per!itting the exercise of

collective self-defence in the absence of a re*uest b the &tate which is a victi! of thealleged attack, this being additional to the re*uire!ent that the &tate in *uestion shouldhave declared itself to have been attacked"

-------------

acts+'he & !ade an ptional Clause .eclaration with a reservation thatthis declaration shall re!ain in force for a period of five ears and thereafter until theexpiration of six !onths after notice !a be given to ter!inate this declaration#hen it beca!e clear that its dispute with /icaragua would be placed before the IC0, the

& notified the / &ec 1en thatthe aforesaid declaration shall not appl to disputes with an Central !erican &tate orarising out of or related to events in Central !erica, an of which disputes shall be settledin such !anner as the parties to the! !a agree"It appears that /icaragua !ade an earlier declaration under the &tatute of the 2CI0 to theeffect that it was accepting the sa!e obligation (obligation under the ptional Clause =consenting to the ptional Clause of the &)Held+IC0 has 3urisdiction over the case despite the notification !ade b the &"'he Court points out that the !ost i!portant *uestion relating to the effect of the 4567notification is whether the nited &tates was free to disregard the six !onths8 notice

clause which, freel and b its own choice, it has appended to its declaration, in spite ofthe obligation it has entered into vis-a-vis other &tates which have !ade such adeclaration"

'he Court said that since the /icaraguan declaration had no ti!e li!it, /icaragua and &9 b its ptional Clause 9 have sub!itted to IC0 0urisdiction"/icaragua can invoke the six !onths8 notice against it, not on the basis of reciprocit, butbecause it is an undertaking which is an integral part of the instru!ent that contains it" 'he4567 notification cannot therefore override the obligation of the nited &tates to sub!it tothe 3urisdiction of the Court vis-a- vis /icaragua"

EAST TIMOR CASE (PORTUGAL V. AUSTRALIA)

acts+



2ortugal filed a case against ustralia concerning certain activities with respect to :ast'i!or"2ortugal clai!s that ustralia failed to observe the obligation to respect the duties andpowers of 2ortugal as the ad!inistering 2ower of :ast 'i!or and the right of the people of:ast 'i!or to self- deter!ination and the related rights" ustralia raised *uestions concerning the 3urisdiction of the Court and the ad!issibilit of

the pplication 'he Court then gives a short description of the histor of the involve!ent of 2ortugal and Indonesia in the 'erritor of :ast 'i!or and of a nu!ber of &ecurit Counciland 1eneral sse!bl resolutions concerning the *uestion of :ast 'i!or" It furtherdescribes the negotiations between ustralia and Indonesia leading to the 'reat of 44.ece!ber 4565, which created a $;one of Cooperation """ in an area between theIndonesian 2rovince of :ast 'i!or and /orthern ustralia"%<it see!s that Indonesia is connected in this case but is not a part to the caseHeld+Having carefull considered the argu!ent advanced b 2ortugal which seeks to separate ustralia8s behaviour fro! that of the Indonesia, the Court concludes that ustralia8sbehavior cannot be assessed without first entering into the *uestion wh it is that

Indonesia could not lawfull have concluded the 4565 'reat, while 2ortugal allegedlcould have done so> the ver sub3ect-!atter of the Court8s decision would necessaril be adeter!ination whether, having regard to the circu!stances in which Indonesia entered andre!ained in :ast 'i!or, it could or could not have ac*uired the power

to enter into treaties on behalf of :ast 'i!or relating to the resources of its continentalshelf" 'he Court could not !ake such a deter!ination in the absence of the consent ofIndonesia"

LEGRAND CASE (GERMANY V. US)

Citation" I"C"0" ?@@4 I"C"0" 7AA"

Brief act &u!!ar" suit against the nited &tates (.) was filed b 1er!an (2) in theInternational Court of 0ustice, clai!ing the "&" law enforce!ent agent failed to advicealiens upon their arrests of their rights under the ienna Convention"

&nopsis of Dule of Law" state that breaches its obligations to another under the iennaConvention on Consular Delations b failing to infor! an arrested alien of the right to

consular notification and to provide 3udicial review of the alien8s conviction and sentencealso violate individual rights held b the alien under international law"

acts" 'he ienna Convention on Consular Delations, rticle EA(4)(b), provides that astate tring an alien in a death sentence case !ust infor! the alien of his rights to have hisconsular authorities infor!ed of the arrest" suit which clai!ed the nited &tates lawenforce!ent personnel f ailed to advice aliens upon their arrest of their rights was filed b2aragua (2), 1er!an (2) and Fexico (2) at the international Court of 0ustice" 'heplaintiffs also clai!ed that as a re!ed for violation of the ienna Convention, state courtsshould review and reconsider the death sentences to deter!ine if the lack of consularaccess pre3udiced the aliens" 'he 1er!an8s (2) case involved La1rand and his brother

who were executed before the !atter ca!e to the I"C"0" the Court found that the "&" (.)had breached its obligations to 1er!an (2) under the ienna Convention b not giving



notice about La1rand and his brother of right to consular notification, and b failing toprovide 3udicial review of the conviction and sentence"

Issue" .oes a state which breaches its obligations to another under the ienna Conventionon Consular Delations b failing to infor! an arrested alien of the right to consularnotification and to provide 3udicial review of the alien8s conviction and sentence also violate

individual rights held b the alien under international lawG

Held" es" state that breaches its obligations to another under the ienna Convention onConsular Delations b failing to infor! an arrested alien of the right to consular notificationand to provide 3udicial review of the alien8s conviction and sentence also violate individualrights held b the alien under international law" 'he !eaning adduced to the phrase$authorities shall infor! the person concerned without dela of his rights under thissubparagraph% of rticle EA suggests that the rights to be infor!ed of their rights under theConvention is an individual right of ever national of a state that is part to the Convention"

.iscussion" 'he riona 1overnor 0ane .ee Hull insisted that the executions of the

Le1rand brothers would be carried out despite the diplo!atic efforts !ade b the 1er!an !bassador and 1er!an Fe!bers of 2arlia!ent and the reco!!endation of the riona8s cle!enc board" n ebruar ?7, 4555, Jarl La1rand was executed b lethalin3ection and #alter La1rand was executed Farch E, 4555 b gas cha!ber" Co!pare thiscase to a ruling b the I"C"0" involving Fexican nationals, vena and other Fexican/ationals (Fexico v" nited &tates), ?@@7 I"C"0" 4? and the "&" &upre!e Court8s refusalto give effect to the I"C"0"8s vena decision in Fedelin v" 'exas 4?6 &" Ct" 4E7A (?@@6)

THE LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS CASE

On July 8, 1996, the International Court of Justice (ICJ), popularly known as the World

Court, delivered two advisory opinions on separate requests received from the World

Health Organization and the General Assembly of the United Nations, respectively, relating

to the legality of nuclear weapons under international law. The principal judicial organ of

the United Nations, whose Statute forms an integral part of the UN Charter, consists of 15

judges representing the different regions and principal legal systems of the world. In

addition to the Court's function of delivering judgments in contentions cases submitted to it

by states, it may issue non-binding advisory opinions at the request of certain UN organs

and agencies.

Legality of the Threat or Use of Nuclear Weapons

On December 20, 1994, the UN General Assembly requested the ICJ to give an advisory

opinion on the question: "Is the threat or use of nuclear weapons in any circumstance

permitted under international law?"

At the outset, the ICJ confirmed the Assembly's broad competence to make such a

request, deriving from the UN Charter and the Assembly's longstanding activities regarding

disarmament and nuclear weapons. The Court also found that the request related to a



legal question within the meaning of the ICJ Statute and the UN Charter and that there

were no compelling reasons to refuse the request, even though the question put to it did

not relate to a specific dispute and was couched in abstract terms.

In determining the legality or illegality of the threat or external use of nuclear weapons, the

ICJ decided that the most directly relevant applicable law governing the Assembly's

question consisted of (1) the provisions of the UN Charter relating to the threat or use of

force, (2) the principles and rules of international humanitarian law that form part of the law

applicable in armed conflict and the law of neutrality, and (3) any relevant specific treaties

on nuclear weapons. In applying this law, the Court considered it imperative to take into

account certain unique characteristics of nuclear weapons, in particular their destructive

capacity that can cause untold human suffering for generations to come.

The Court first considered the provisions of the UN Charter relating to the threat or use of

force. Although Article 2(4) (generally prohibiting the threat or use of force), Article 51

(recognizing every state's inherent right of individual or collective self-defense if an armed

attack occurs) and Article 42 (authorizing the Security Council to take military enforcement

measures) do not refer to specific weapons, the Court held that they apply to any use of

force, regardless of the type of weapon employed. The Court noted that the UN Charter

neither expressly prohibits, nor permits, the use of any specific weapon (including nuclear

weapons) and that a weapon that is already unlawful per se by treaty or custom does not

become lawful by reason of its being used for a legitimate purpose under the Charter.

Whatever the means of force used in self-defense, the dual customary condition ofnecessity and proportionality and the law applicable in armed conflict apply, including such

further considerations as the very nature of nuclear weapons and the profound risks

associated with their use.

The ICJ also considered the question whether a signalled intention to use force if certain

events occur qualifies as an unlawful "threat" under Article 2(4) of the UN Charter.

According to the Court, the notions of "threat" or "use" of force under Article 2(4) work in

tandem in that the illegal use of force in a given case will likewise make the threat to use

such force unlawful. The Court pointed out that the mere possession of nuclear weapons

would not constitute an unlawful "threat" to use force contrary to Article 2(4), unless the

particular use of force envisaged would be directed against the territorial integrity or

political independence of a state or would be inconsistent with the purposes of the United

Nations or, in the event that it were intended as a means of defense, such envisaged use

of force would violate the principles of necessity and proportionality.

The Court next examined the law applicable in situations of armed conflict by addressing

two questions: (1) are there specific rules in international law regulating the legality orillegality of recourse to nuclear weapons per se, and (2) what are the implications of the



principles and rules of humanitarian law applicable in armed conflict and the law of

neutrality?

The ICJ noted that international customary and treaty law do not contain any specific

prescription authorizing the threat or use of nuclear weapons or any other weapon in

general or in certain circumstances, in particular those of the exercise of legitimate self-

defense. Nor, however, is there any principle or rule of international law that would make

the legality of the threat or use of nuclear weapons or of any other weapons dependent on

a specific authorization. State practice shows that the illegality of the use of certain

weapons as such does not result from an absence of authorization but is rather formulated

in terms of prohibition.

The Court examined whether any such prohibition of recourse to nuclear weapons can be

found in treaty law. With regard to certain specific treaties dealing with the acquisition,

manufacture, possession, deployment and testing of nuclear weapons, the Court noted

that these treaties "point to an increasing concern in the international community" with

regard to nuclear weapons, and concluded that they "could therefore be seen as

foreshadowing a future general prohibition of the use of such weapons, but they do not

constitute such a prohibition by themselves." As to those treaties that address the issue of

recourse to nuclear weapons, the Court observed that they "testify to a growing awareness

of the need to liberate the community of States and the international public from the

dangers resulting from the existence of nuclear weapons," but that these treaties also do

not amount to a comprehensive and universal conventional prohibition on the threat or useof nuclear weapons as such.

The Court then examined customary international law. First, it determined that the non-use

of nuclear weapons does not amount to a customary prohibition, because the world

community is profoundly divided on the issue. Second, the Court examined whether

certain General Assembly resolutions that deal with nuclear weapons signify the existence

of a rule of customary international law prohibiting recourse to nuclear weapons. In the

Court's view, although these resolutions are "a clear sign of deep concern regarding the

problem of nuclear weapons" and "reveal the desire of a very large section of the

international community to take, by a specific and express prohibition of the use of nuclear

weapons, a significant step forward along the road to complete nuclear disarmament," they

fall short of a customary rule specifically prohibiting the use of nuclear weapons as such.

The ICJ next considered whether recourse to nuclear weapons must be considered as

illegal in the light of the principles and rules of international humanitarian law applicable in

armed conflict and of the law of neutrality. The Court stated that the cardinal principles of

international humanitarian law prescribing the conduct of military operations are: (1) theprotection of the civilian population and civilian objects and the prohibition of the use of

weapons incapable of distinguishing between combatants and non-combatants, and (2)



the prohibition on causing unnecessary suffering to combatants by using certain weapons.

According to the Court, the fundamental rules of humanitarian law applicable in armed

conflict must be observed by all states whether or not they have ratified the conventions

that contain them, because they constitute intransgressible principles of international

customary law. The ICJ agreed with the vast majority of states as well as writers that there

can be no doubt as to the applicability of the principles and rules of humanitarian law in

armed conflict to a possible threat or use of nuclear weapons, despite the fact that these

principles and rules had evolved prior to the invention of nuclear weapons. It also found

that the customary principle of neutrality is applicable, subject to the relevant provisions of

the UN Charter, to all international armed conflict, whatever type of weapons might be

used (although the principle of neutrality is not well defined, and the ICJ left its content

undefined here, it is generally regarded as requiring at least that no attack be made on a

state that has declared itself a neutral and is conducting itself accordingly).

Despite the undisputed applicability of the principles and rules of humanitarian law and of

the law of neutrality to nuclear weapons, the ICJ found that the conclusions to be drawn

from this applicability were controversial. The Court admitted that, in view of the unique

characteristics of nuclear weapons, their use "in fact seems scarcely reconcilable" with the

strict requirements dictated by the law applicable in armed conflict. The judges being

evenly divided, ICJ President Mohammed Bedjaoui used his casting vote to hold that the

threat or use of nuclear weapons would generally be contrary to the rules of international

law applicable in armed conflict. At the same time, the ICJ held that it did not have a

sufficient basis for a definitive conclusion as to whether the use of nuclear weapons wouldor would not be at variance with the principles and rules of law applicable in armed conflict

in an extreme circumstance of self-defense, in which a state's very survival is at stake.

Finally, the Court examined the obligation to negotiate in good faith a complete nuclear

disarmament, recognized in Article VI of the Treaty on the Non-Proliferation of Nuclear

Weapons of 1968. The ICJ judges held unanimously that the obligation enshrined in Article

VI involves "an obligation to achieve a precise result-nuclear disarmament in all its

aspects-by adopting a particular course of conduct, namely, the pursuit of negotiations on

the matter in good faith." The Court noted that this twofold obligation to pursue and

conclude negotiations in accordance with the basic principle of good faith formally

concerns the 182 states parties to the Treaty on the Non-Proliferation of Nuclear Weapons,

constituting the vast majority of the international community.

Legality of the Use by a State of Nuclear Weapons in Armed Conflict

On July 8, 1996, the ICJ ruled also that it was unable to comply with a request received on

September 1993 from the World Health Organization (WHO) to give an advisory opinionon the following question: "In view of the health and environmental effects, would the use

of nuclear weapons by a State in war or other armed conflict be a breach of its obligations



under international law including the WHO Constitution?" The Court ruled, 11-3, that

although the WHO is duly authorized under the UN Charter to request advisory opinions

from the ICJ and the opinion requested concerned a legal question, the request submitted

by the WHO did not relate to a question arising within the scope of the activities of that

organization as required by Article 96(2) of the UN Charter.

The Court pointed out that its jurisdiction to provide an advisory opinion in response to a

request by a specialized agency requires that: (1) the specialized agency requesting the

opinion must be duly authorized, under the UN Charter, to request advisory opinions from

the ICJ, (2) the opinion requested must relate to a "legal question" within the meaning of

the ICJ Statute and the UN Charter, and (3) the opinion requested must relate to a

question that arises within the scope of the activities of the specialized agency requesting

the opinion.

Regarding the third condition, the Court emphasized the importance of the relevant rules,

and in particular the constituent instrument, of the WHO in determining the scope of its

activities against the background of the question it posed. In interpreting the constituent

instrument of an international organization, the character of which is conventional and at

the same time institutional (being a treaty establishing an international organization), the

Court observed that the following elements deserve special attention: (i) the nature of the

international organization, (ii) the objectives assigned to the organization by its founders,

(iii) the imperatives associated with the effective performance of the functions of the

organization, and (iv) the organization's own practice.

The ICJ observed that none of the 22 functions listed in the WHO Constitution expressly

refers to the legality of any activity hazardous to health, or depends upon the legality of the

situations in which that organization must act. Article 2 states that the WHO discharges its

functions "to achieve its objective," which Article 1 defines as "the attainment by all

peoples of the highest possible level of health." According to the Court, the functions listed

in Article 2 authorize the WHO to deal with the effects on health of the use of nuclear

weapons, or any other hazardous activity, and to take preventive measures that are aimed

at protecting the health of populations in the event of such weapons being used or such

activities engaged in.

Having found the request to relate not to the effects of the use of nuclear weapons on

health, but rather the legality of the use of such weapons in view of their health and

environmental effects, the Court concluded that there was insufficient connection between

the request and the functions of the WHO to support the Court's jurisdiction. According to

the ICJ: "the legality or illegality of the use of nuclear weapons in no way determines the

specific measures, regarding health or otherwise (studies, plans, procedures, etc.), whichcould be necessary in order to prevent or cure some of their effects."



The Court acknowledged that international organizations can exercise subsidiary or

"implied" powers not expressly provided for in the basic instruments that govern their

activities. However, it held that the competence to address the legality of the use of nuclear

weapons could not be deemed a necessary implication of the WHO Constitution in the

light of the purposes member states had assigned to it. To hold otherwise would be

tantamount to disregarding the principle of speciality according to which international

organizations operate in limited fields.

The ICJ explained that the logic of the UN Charter system demonstrates that the United

Nations was invested with powers of general scope and that specialized agencies such as

the WHO were invested with sectorial powers. The responsibilities of the WHO are

necessarily restricted to the sphere of public health, and cannot encroach on the

responsibilities of other parts of the UN system. More specifically, questions concerning

the use of force, the regulation of armaments, and disarmament are within the competence

of the United Nations and outside that of the specialized agencies.

Finally, the Court pointed out that none of the WHO's reports and resolutions was in the

nature of a practice of the WHO concerning the legality of the threat or use of nuclear

weapons. It held that in general the WHO is not empowered to seek an opinion on the

interpretation of its Constitution in relation to matters outside the scope of its functions.

******

These advisory opinions of the World Court are of considerable significance to the

development of the law of nuclear weapons and international organizations. Although theCourt concluded that it was unable to hold definitively whether the threat or use of nuclear

weapons would be lawful or unlawful in an extreme circumstance of self-defense in which

the very survival of a state would be at stake (thereby leaving the door to legality open)

and it could not give the opinion requested by the WHO, the legal reasoning leading to

these conclusions reflects the Court's authoritative views on important issues of

international law. Although the opinions are non-binding, in preparing them the Court

follows the same rules and procedures that govern its binding judgments delivered in

contentious cases submitted to it by sovereign states.

CASE CONCERNING QUESTIONS OF INTERPRETATION AND APPLICATION OF THE

MONTREAL CONVENTION ARISING OUR OF THE AERIAL INCIDENT AT

LOCKERBIE (PROVISIONAL MEASURES) (LIBYA V. UK)

FACTS

-An airplane exploded over Scotland, killing many American citizens.

-The US and the UK traced the bomb back to two Libyans.-The Libyan government refused to extradite the Libyans for trial.



-Libya argued that under the Convention for the Suppression of Unlawful Acts against Civil

Aviation (the Montreal Convention) (974 U.N.T.S. 177 (1971)), Libya could either extradite

or prosecute the suspects themselves.

-Libya chose to prosecute the suspects themselves.

-The United States and the UK accused the Libyans of "Forum Shopping" and took the

case to the United Nations Security Council (UNSC).

-UNSC issued two resolutions (UNSC Resolutions 731/748). These urged Libya to hand

over the bombing suspects.

-UNSC also embargoes arms sales to Libya, told member states to close offices of the

Libyan Airlines.

-Coercive powers are detailed in Chapter VII of the United Nations Charter.

ANALYSIS

How did the UNSC justify the resolutions?

-Article 39 allows the UNSC to take enforcement actions to restore international peace.

You could argue that international terrorism is a breach of the peace.

-But how could you say that Libya's exercising their rights under a multilateral treaty is a

threat to the peace?

-Libya went to the International Court of Justice to protest the UNSC resolutions.

-Libya claimed that it was fully within its rights under the Montreal Convention to try the

suspects in Libya and not have to turn them over.

-The I.C.J. found that the UNSC resolutions were permissible, and the Libya must hand

over the suspects.-Basically, the I.C.J. found that UNSC resolutions trumped everything else, even

multilateral treaties.

-Article 103 of the United Nations Charter says, "In the event of a conflict between the

obligations of the Members of the United Nations under the present Charter and their

obligations under any other international agreement, their obligations under the present

Charter shall prevail."

-Article 25 says that member States must follow UNSC resolutions.

HOLDING

-The I.C.J. does not perform Judicial Review of UNSC decisions. They are binding and not

reviewable.

-If UNSC decisions were reviewable, it would not give the same sense of finality that is

required for them to be acted upon. - See more at:

http://www.lawschoolcasebriefs.net/2012/10/case-concerning-questions-

of.html#sthash.K82rgtfd.dpuf

---------------



1 The Lockerbie Cases before the International Court of Justice1 On 10 September 2003,

after more than ten years of proceedings before the International Court of Justice (ICJ), the

disputes between Libya and both the United Kingdom and the United States concerning

the extradition of two Libyan citizens were removed from the Court’s List following the

Parties’ withdrawal from the proceedings. On 3 March 1992, Libya filed in the Registry of

the ICJ two separate Applications instituting proceedings against the US and the UK

Governments, in respect of a dispute over the interpretation of the Convention for the

Suppression of Unlawful Acts against the Safety of Civil Aviation signed in Montreal on 23

September 1971. This filing followed the explosion of a bomb in the Pan Am Flight 103

over the town of Lockerbie, Scotland, on 21 December 1988, which killed all 259

passengers and crew, as well as eleven residents of the town of Lockerbie. The Lord

Advocate of Scotland and a Grand Jury of the US respectively accused two Libyan

citizens, Abdelbaset Ali Mohmed Al Megrahi and Ali Amin Khalifa Fhimah, of this bombing.

Consequently, the UK and US Governments requested Libya to extradite the accused so

that they could be prosecuted in Scotland or in the US. The United Nations Security

Council adopted three resolutions (Resolutions 731, 748 in 1992 and Resolution 883 in

1993), ordering Libya to “give a full and efficient answer” to the demands made by UK and

the US “in order to contribute to the clearance of international terrorism”. Before the ICJ,

Libya claimed that it had not signed any extradition treaty with the UK and the US, and

that, subsequently and in conformity with the 1971 Montreal Convention (Articles 5 and 7),

which requires a State to establish its own jurisdiction over alleged offenders present in its

territory an the event of their non-extradition, only Libyan authorities had jurisdiction to try

their own citizens. February 1998: The International Court of Justice has jurisdiction Whenbringing its claim in front of the ICJ, Libya pointed out that the alleged acts constituted an

offence with the meaning of Article 1 of the Montreal Convention. Thus, it asserted that the

ICJ had jurisdiction to hear disputes between Libya and the respondent States concerning

the interpretation or application of the provisions of the Convention. 1 The cases are

officially called ‘Questions of Interpretation & Application of the 1971 Montreal Convention

(Aerial Incident at Lockerbie) (Libya v. UK)’ and ‘Questions of Interpretation & Application

of the 1971 Montreal Convention (Aerial Incident at Lockerbie) (Libya v. USA)’. 2 Following

Libya’s Applications, the US and the UK filed certain preliminary objections to the

jurisdiction of the Court and to the admissibility of the claims. On 27 February 1998, the

ICJ, the main judicial body of the United Nations, dismissed the Respondents’ objections.

It declared that it had jurisdiction on the basis of Article 14, paragraph 1 of the Montreal

Convention, to hear the disputes between Libya and the respondent States concerning the

interpretation of the Convention in relation to the incident that occurred in Lockerbie. It

further declared the claims admissible. Continuation of the proceedings There are two

stages in the proceedings before the ICJ, one in writing, the second in oral. During the

writing stage, exhibits are exchanged. At the end of this phase, public hearings take place

where the Parties present the remaining points that oppose them. The Court renders a judgment on the merits once the oral proceedings are completed. The US and the UK filed

a Brief in response in the beginning of 2009. In June 2009, the Court authorized Libya to



submit a Reply, and the UK and the US to file Rejoinders. Cases removed from the Court’s

List at the joint request of the Parties While the pleadings were filed by the Parties within

the time-limits laid down by the Court, the two cases brought before ICJ were removed

from the Court’s List on 10 September 2003, at the joint request of the Parties. By two

letters of 9 September 2003, the Governments of Libya and the United Kingdom on the

one hand, and of Libya and the United States of America on the other, notified the Court

that they had "agreed to discontinue with prejudice the proceedings". Following those

notifications, on 10 September 2003 the President of the Court, Judge Shi, made an Order

in each case placing on record the discontinuance of the proceedings with prejudice, by

agreement of the Parties, and directing the removal of the case from the Court’s List. In the

meantime, Libya had agreed that the two accused, Abdelbaset Ali Mohmed Al Megrahi

and Ali Amin Khalifa Fhimah, be tried by five Scottish Judges sitting in a neutral Court, in

the Netherlands. Abdelbaset Ali Mohmed Al Megrahi was found guilty on 31 January 2001.

He was convicted of 270 counts of murder for his part in the bombing of Pan Am Flight 103

and sentenced to life imprisonment. His co-accused, Al Amin Khalifa Fhimah was found

not guilty and released. Al Megrahi is serving his sentence in Greenock Prison, near

Glasgow, where he continues to profess his innocence. The appeal judgment should be

delivered by a fiveJudge panel in 2008 although no date has been set yet. Whether a

definitive judgment will be delivered in the case before the twentieth anniversary of the

Lockerbie bombing on 21 December 2008 remains to be seen.

AERIAL INCIDENT OF 27 JULY 1955 (US V. BULGARIA)

Facts:

US acceded to the optional clause, thereby accepting the compulsory jurisdiction of the

ICJ. During the ratification process for that accession, however, US Senator Connally

made a reservation including “disputes with regard to matters which are essentially within

the domestic jurisdiction of the US as determined by the US.”

An Israel airliner was driven off course by strong winds in very bad weather. The plane

innocently crossed over into Bulgarian air space. While trying to return to its authorized

course, the plane was shot down by Bulgarian military fighter planes. All fifty-one

passengers and seven crew members aboard were killed, including six American

nationals.

Israel filed a case before the ICJ which ruled that

it did not have jurisdiction on the grounds that Bulgaria’s acceptance of the optional clause

in the Statute of the Permanent Court of International Justice (the PCIJ, precursor to the

ICJ) did not carry over its acceptance of the optional clause for the ICJ when Bulgaria

joined the UN in 1955, since Bulgaria was not an original party to the UN Charter and

Statute of the ICJ

Despite this, US still pressed its claim and also filed before the ICJ against Bulgaria.Bulgaria invoked the Connally Amendment (reservation)

Held:



Admissibility. This arbitration concerns the role of “historic rights” and the source of

maritime entitlements in the South China Sea, the status of certain maritime features in the

South China Sea and the maritime entitlements they are capable of generating, and the

lawfulness of certain actions by China in the South China Sea that are alleged by the

Philippines to violate the Convention.

In light of limitations on the matters that can be submitted to compulsory dispute settlement

under the Convention, the Philippines has emphasized that it is not requesting the Tribunal

to decide the question of sovereignty over maritime features in the South China Sea that

are claimed by both the Philippines and China. Nor has the Philippines requested the

Tribunal to delimit any maritime boundary between the two States. China has repeatedly

stated that “it will neither accept nor participate in the arbitration unilaterally initiated by the

Philippines.” China has, however, made clear its view—in particular through the publication

in December 2014 of a “Position Paper of the Government of the People’s Republic of

China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the

Republic of the Philippines” (“China’s Position Paper”)—that the Tribunal lacks jurisdiction

to consider the Philippines’ Submissions.

Under the Convention, an arbitral tribunal must satisfy itself that it has jurisdiction to decide

a matter presented to it, even if a party chooses not to participate in the proceedings or to

make a formal objection. Accordingly, the Tribunal decided in April 2015 that it would treat

China’s Position Paper as effectively constituting a plea concerning the Tribunal’s

jurisdiction and convened a Hearing on Jurisdiction and Admissibility that took place in The

Hague on 7, 8 and 13 July 2015.

The Tribunal’s Award of today’s date is unanimous and concerns only whether the Tribunalhas jurisdiction to consider the Philippines’ claims and whether such claims are admissible.

The Award does not decide any aspect of the merits of the Parties’ dispute. In its Award,

the Tribunal has held that both the Philippines and China are parties to the Convention and

bound by its provisions on the settlement of disputes. The Tribunal has also held that

China’s decision not to participate in these proceedings does not deprive the Tribunal of

jurisdiction and that the Philippines’ decision to commence arbitration unilaterally was not

an abuse of the Convention’s dispute settlement procedures. Reviewing the claims

submitted by the Philippines, the Tribunal has rejected the argument set out in China’s

Position Paper that the Parties’ dispute is actually about sovereignty over the islands in the

South China Sea and therefore beyond the Tribunal’s jurisdiction. The Tribunal has also

rejected the argument set out in China’s Position Paper that the Parties’ dispute is actually

about the delimitation of a maritime boundary between them and therefore excluded from

the Tribunal’s jurisdiction through a declaration made by China in 2006. On the contrary,

the Tribunal has held that each of the Philippines’ Submissions reflect disputes between

the two States concerning the interpretation or application of the Convention. The Tribunal

has also held that no other States are indispensable to the proceedings.

Turning to the preconditions to the exercise of the Tribunal’s jurisdiction set out in the

Convention, the Tribunal has rejected the argument in China’s Position Paper that the 2002



China–ASEAN Declaration on the Conduct of Parties in the South China Sea constitutes

an agreement to resolve disputes relating to the South China Sea exclusively through

negotiation. On the contrary, the Tribunal has held that the China– ASEAN Declaration

was a political agreement that was not intended to be legally binding and was therefore not

relevant to the provisions in the Convention that give priority to the resolution of disputes

through any means agreed between the Parties. The Tribunal has likewise held that certain

other agreements and joint statements by China and the Philippines do not preclude the

Philippines from seeking to resolve its dispute with China through the Convention. Further,

the Tribunal has held that the Philippines has met the Convention’s requirement that the

Parties exchange views regarding the settlement of their dispute and has sought to

negotiate with China to the extent required by the Convention and general international

law.

The Tribunal then considered the limitations and exceptions set out in the Convention that

preclude disputes relating to certain subjects from being submitted to compulsory

settlement. The Tribunal observed that whether these limitations and exceptions would

apply to the Philippines’ claims was, in some cases, linked to the merits of the claims. For

instance, whether the Tribunal would have jurisdiction to address China’s claims to historic

rights in the South China Sea may depend upon the Tribunal’s assessment of the nature of

China’s claimed rights. Similarly, whether the Tribunal would have jurisdiction to address

Chinese activities in the South China Sea may depend upon the Tribunal’s decision on

whether any of the maritime features claimed by China are islands capable of generating

maritime zones overlapping those of the Philippines. The Tribunal also noted that the

location of certain activities and the Convention’s exception for military activities may affectits jurisdiction over certain of the Philippines’ claims.

In light of the foregoing, the Tribunal has concluded that it is presently able to decide that it

does have jurisdiction with respect to the matters raised in seven of the Philippines’

Submissions. The Tribunal has concluded, however, that its jurisdiction with respect to

seven other Submissions by the Philippines will need to be considered in conjunction with

the merits. The Tribunal has requested the Philippines to clarify and narrow one of its

Submissions.

The Tribunal will convene a further hearing on the merits of the Philippines’ claims. In

consultation with the Parties, the Tribunal has provisionally set the dates for the merits

hearing. As with the Hearing on Jurisdiction and Admissibility, the hearing on the merits will

not be open to the public, however the Tribunal will consider requests from interested

States to send small delegations of observers. The Permanent Court of Arbitration (the

“PCA”), which acts as Registry in the case, will issue further Press Releases upon the

commencement and closing of the merits hearing. The Tribunal expects that it will render

its Award on the merits and remaining jurisdictional issues in 2016.

---------------

SUMMARY OF THE AWARD ON JURISDICTION AND ADMISSIBILITY



1. Background to the Arbitration and to the Proceedings on Jurisdiction and Admissibility

This arbitration concerns an application by the Philippines for rulings in respect of three

inter-related matters concerning the relationship between the Philippines and China in the

South China Sea. First, the Philippines seeks a ruling on the source of the Parties’ rights

and obligations in the South China Sea and the effect of the United Nations Convention on

the Law of the Sea on China’s claims to “historic rights” within its so-called “nine-dash line”.

Second, the Philippines seeks a ruling on whether certain maritime features claimed by

both China and the Philippines are properly characterised as islands, rocks, low tide

elevations or submerged banks under the Convention. The status of these features under

the Convention may determine the maritime zones they are capable of generating. Finally,

the Philippines seeks rulings on whether certain Chinese activities in the South China Sea

have violated the Convention, by interfering with the exercise of the Philippines’ sovereign

rights and freedoms under the Convention or through construction and fishing activities

that have harmed the marine environment.

The Chinese Government has adhered to the position of neither accepting nor participating

in these arbitral proceedings. It has reiterated this position in diplomatic notes, in public

statements, in the “Position Paper of the Government of the People’s Republic of China on

the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the

Philippines” dated 7 December 2014, and in two letters to members of the Tribunal from

the Chinese Ambassador to the Kingdom of the Netherlands. The Chinese Government

has also made clear that these statements and documents “shall by no means be

interpreted as China’s participation in the arbitral proceeding in any form.”

Under the Convention, a tribunal constituted under Annex VII has jurisdiction to consider adispute between States Parties to the Convention to the extent that the dispute involves the

“interpretation or application” of the Convention. However, the Convention excludes certain

types of disputes from the jurisdiction of a tribunal and includes certain preconditions that

must be met before any tribunal may exercise jurisdiction.

For reasons set out in Procedural Order No. 4 and explained in the PCA’s Fourth Press

Release in this matter, dated 22 April 2015, available at

http://www.pcacases.com/web/view/7, the Tribunal considered the communications by

China to constitute, in effect, a plea that the Philippines’ Submissions fall outside the scope

of the Tribunal’s jurisdiction. Accordingly, the Tribunal conducted a hearing in July 2015 on

the scope of its jurisdiction and the admissibility of the Philippines’ claims.

The Tribunal also has a duty pursuant to Article 9 of Annex VII to the Convention to satisfy

itself that it has jurisdiction over the dispute. Accordingly, the Tribunal made clear before

and during the hearing that it would consider possible issues of jurisdiction and

admissibility whether or not they were addressed in China’s Position Paper.

2. The Parties’ Positions The Philippines’ has made 15 Submissions in these proceedings,

requesting the Tribunal to find that:

China’s maritime entitlements in the South China Sea, like those of the Philippines, maynot extend beyond those permitted by the United Nations Convention on the Law of the

Sea (“UNCLOS” or the “Convention”);

http://www.pcacases.com/web/view/7




China’s claims to sovereign rights and jurisdiction, and to “historic rights”, with respect to

the maritime areas of the South China Sea encompassed by the so-called “nine-dash line”

are contrary to the Convention and without lawful effect to the extent that they exceed the

geographic and substantive limits of China’s maritime entitlements under UNCLOS;

Scarborough Shoal generates no entitlement to an exclusive economic zone or continental

shelf;

Mischief Reef, Second Thomas Shoal and Subi Reef are low-tide elevations that do not

generate entitlement to a territorial sea, exclusive economic zone or continental shelf, and

are not features that are capable of appropriation by occupation or otherwise; 3

Mischief Reef and Second Thomas Shoal are part of the exclusive economic zone and

continental shelf of the Philippines;

Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations that do

not generate entitlement to a territorial sea, exclusive economic zone or continental shelf,

but their low-water line may be used to determine the baseline from which the breadth of

the territorial sea of Namyit and Sin Cowe, respectively, is measured;

Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no entitlement to an

exclusive economic zone or continental shelf;

China has unlawfully interfered with the enjoyment and exercise of the sovereign rights of

the Philippines with respect to the living and non-living resources of its exclusive economic

zone and continental shelf;

China has unlawfully failed to prevent its nationals and vessels from exploiting the living

resources in the exclusive economic zone of the Philippines;

China has unlawfully prevented Philippine fishermen from pursuing their livelihoods byinterfering with traditional fishing activities at Scarborough Shoal;

China has violated its obligations under the Convention to protect and preserve the marine

environment at Scarborough Shoal and Second Thomas Shoal;

China’s occupation and construction activities on Mischief Reef

violate the provisions of the Convention concerning artificial islands, installations and

structures;

violate China’s duties to protect and preserve the marine environment under the

Convention; and

constitute unlawful acts of attempted appropriation in violation of the Convention;

China has breached its obligations under the Convention by operating its law enforcement

vessels in a dangerous manner causing serious risk of collision to Philippine vessels

navigating in the vicinity of Scarborough Shoal;

Since the commencement of this arbitration in January 2013, China has unlawfully

aggravated and extended the dispute by, among other things:

interfering with the Philippines’ rights of navigation in the waters at, and adjacent to,

Second Thomas Shoal;

preventing the rotation and resupply of Philippine personnel stationed at Second ThomasShoal; and



endangering the health and well-being of Philippine personnel stationed at Second

Thomas Shoal; and

China shall desist from further unlawful claims and activities.

With respect to jurisdiction, the Philippines has asked the Tribunal to declare that the

Philippines’ claims “are entirely within its jurisdiction and are fully admissible.” The

Philippines’ arguments on jurisdiction, advanced during the July 2015 Hearing are

summarised in the PCA’s Sixth Press Release in this matter, dated 13 July 2015, available

athttp://www.pcacases.com/web/view/7.

China does not accept and is not participating in this arbitration but has stated its position

that the Tribunal “does not have jurisdiction over this case.” In its “Position Paper of the

Government of the People’s Republic of China on the Matter of Jurisdiction in the South

China Sea Arbitration Initiated by the Republic of the Philippines” of December 2014,

China advanced the following arguments:

-----------------

CASE:http://www.southchinaseanewstoday.com/2015/10/30/full-text-permanent-court-

arbitration-ruling-ph-case-vs-china/

DEL MONTE V. CA

Facts:

Del Monte USA (DMC-USA) appointed Montebueno Marketing Inc (MMI) as its sole andexclusive distributor of Del Monte products in the Philippines for 5 years.

The contract contained an arbitration clause which provides that all disputes arising out of

or relating to the agreement or the parties’ relationship, including termination thereof, shall

be resolved by arbitration in San Francisco City, CA, under the Rules of the American

Arbitration Association

MMI’s appointment was published in several newspapers. MMI appointed Sabrosa Food

Inc with the approval of DMC-USA, as MMI’s marketing arm.

Later, MMI and Sabrosa filed a complaint against DMC-USA for violation of Arts. 20, 21

and 23 of the Civil Code. MMI claims that DMC-USA authorised other importers of their

products in the Philippines despite MMI’s appointment as its sole and exclusive distributor,

thereby causing MMI great embarrassment and substantial damage.

Private respondents claimed that they had exhausted all possible avenues for an amicable

resolution and settlement of their grievances; that as a result of the fraud, bad faith, malice

and wanton attitude of petitioners, they should be held responsible for all the actual

expenses incurred by private respondents in the delayed shipment of orders, the actual

expenses and cost of money for the unused Letters of Credit (LCs) and the substantial

opportunity losses due to created out-of-stock situations and unauthorised shipments ofDel Monte-USA products to the Philippine Duty Free Area and Economic zone


http://www.southchinaseanewstoday.com/2015/10/30/full-text-permanent-court-arbitration-ruling-ph-case-vs-china/







DMC-USA filed a Motion to Suspend Proceedings invoking the arbitration clause. RTC

denied this on the ground that it will not serve the ends of justice and to allow said

suspension will only delay the determination of the issues, frustrate the quest of the parties

for a judicious determination of their respective claims, and/or deprive and delay their

rights to seek redress.

CA affirmed.

Issue:

W/N the dispute warrants an order compelling them to submit to arbitration - No

Held: No

DMC invokes RA 876 which provides that If any suit or proceeding be brought upon an

issue arising out of an agreement providing for arbitration thereof, the court, upon being

satisfied that the issue involved in such suit or proceeding is referable to arbitration, shall

stay the action or proceeding until an arbitration has been had in accordance with the

terms

of the agreement.

MMI and Sabrosa argue that since the causes of action are rooted in Art. 20, 21 and 23 of

the Civil Code, there must be full-blown trial, which cannot be had in an arbitration.

First, arbitration is valid and constitutional in the Philippines. RA 876 expressly authorises

arbitration of domestic disputes and recognises foreign arbitration as a system of settling

commercial disputes. The Philippines also recognised this when it adhered to the UN

Convention on the Recognition and the Enforcement of Foreign Arbitral Awards of 1958.

Second, while the arbitration clause in the agreement between DMC and MMI is valid, this

petition must be denied. Since the agreement and the arbitration clause are contractsbetween DMC and MMI, only they and their assignees or heirs are bound thereto. Referral

to arbitration pursuant to the agreement could be called for but only as to them, not to the

other parties to the case such as Sabrosa.

This is consistent with Salas v. Laperal which held that, In recognising the right of the

contracting parties to arbitrate or to compel arbitration, the splitting of the proceedings to

arbitration as to some of the parties on one hand and trial for the others on the other hand,

or the suspension of trial pending arbitration between some of the parties, should not be

allowed as it would, in effect, result in multiplicity of suits, duplicitous procedure and

unnecessary delay. This would be contrary to the object of arbitration to allow the

expeditious determination of a dispute.

LM POWER V. CAPITOL

Facts:

Capitol subcontracted LM regarding electrical work at the Third Port of Zamboanga. The

contract had an arbitration clause which provides that any dispute or conflict regarding the

interpretation and implementation of the contract which cannot be settled between theparties amicably shall be settled by means of arbitration.



Later, Capitol took over some of the work contracted to LM because the latter had failed to

finish it due to its inability to procure materials. Despite this, when LM billed Capitol for the

work done, it still included the work which was taken over by Capitol. Capitol, instead of

paying the billed balance, invoked the termination clause in their contract which allowed it

to set off the cost of “termination or takeover” against what it owes to LM.

Because of this, LM filed a case before the RTC for collection of money.

Capitol filed a MTD arguing that there was no prior recourse to arbitration. RTC denied

this. CA reversed.

Issue:

W/N a controversy/dispute between petitioner and respondent regarding the interpretation

and implementation of the Sub-Contract Agreement requires prior recourse to voluntary

arbitration - Yes

Held: Yes

The arbitration clause expressly provides that any dispute or conflict regarding the

interpretation and implementation of the contract which cannot be settled between the

parties amicably shall be settled by means of arbitration.

In this case, since the controversy arose from the parties dispute on w/n a takeover

occurred, w/n the expenses may be setoff, and how much are the billable

accomplishments — all being disputes on the interpretation and implementation of the

contract — arbitration should first be availed of.

Being an inexpensive, speedy and amicable method of settling disputes, arbitration —

along with mediation, conciliation and negotiation -- is encouraged by the Supreme Court.

Aside from unclogging judicial dockets, arbitration also hastens the resolution of disputes,especially of the commercial kind. It is thus regarded as the “wave of the future” in

international civil and commercial disputes. Brushing aside a contractual agreement calling

for arbitration between the parties would be a step backward

FRABELLE V. PHILAMLIFE

Facts:

Respondents entered into a MOA to contribute money, property and services for the

construction of the Philamlife tower in Makati. Later, they assigned all their rights and

obligations under the MOA to Frabelle, including the construction, development and

subsequent ownership of Unit 38-B thereof. Respondents also stipulated that the Frabelle

shall be deemed a co-developer.

Later, Frabelle assigned its rights to Frabelle fishing Corp.

Frabelle Fishing and respondents entered into a MOA to fund the construction of certain

floors in the building.

The dispute between the parties started when Frabelle Fishing found material

concealment on the part of respondents regarding certain details in the 1996 DOA and1998 MOA and their gross violation of their contractual obligations as condominium

developers. These violations are: (a) the non-construction of a partition wall between Unit



No. 38-B and the rest of the floor area; and (b) the reduction of the net usable floor area

from 468 sqm. to only 315 sqm.

Frabelle Fishing then referred the matter to the Philippine Dispute Resolution Inc (PDRCI)

for arbitration. However, respondents refused to submit to its jurisdiction.

Because of this, Frabelle Fishing filed a complaint for reformation, specific performance

and damages with HLURB, alleging that the contract does not reflect the true intention of

the parties because Frabell Fishing is a mere buyer and not a co-developer.

HLURB set the initial preliminary hearing of the case. Respondents obtained a TRO from

the CA. Hence this petition.

Issue:

W/N HLURB has jurisdiction - No.

W/N the parties should initially resort to arbitration - Yes

Held

1. Only courts have jurisdiction over reformation of contracts

2. Paragraph 4.2 of the 1998 MOA mandates that any dispute between or among the

parties “shall finally be settled by arbitration conducted in accordance with the Rules of

Conciliation and Arbitration of the International Chamber of Commerce.” Frabelle Fishing

referred the dispute to the PDRCI but respondents refused to submit to its jurisdiction. It

bears stressing that such arbitration agreement is the law between the parties. They are,

therefore, expected to abide by it in good faith.

SC has previously held that arbitration is one of the alternative methods of dispute

resolution that is now rightfully vaunted as the wave of the future# in international

relations, and is recognized worldwide. To brush aside a contractual agreement calling forarbitration in case of disagreement between the parties would therefore be a step

backward.

GONZALES V. HON PIMENTEL

Facts:

Climax filed a petition to compel arbitration before the RTC pursuant to a contract and

addendum contract between it and Gonzales. The addendum contract contained an

arbitration clause.

Gonzales, in his answer, claimed that the 2 contracts are void because of Climax’s acts of

fraud. Gonzales asked the RTC to set the case for pretrial which it did. Climax, in a motion,

opposed this arguing that RA 876 does not authorise a pretrial or trial in an action to

compel arbitration. RTC granted this. Hence this petition under Rule 65 by Gonzales.

Issue:

W/N it was proper to compel arbitration under R.A. No. 876, to order the parties to arbitrate

even though the defendant therein has raised the twin issues of validity and nullity of the

Addendum Contract — YES! Addendum agreement and Arbitration agreement areseparable!

Held: Yes.



Disputes do not go to arbitration unless and until the parties have agreed to abide by the

arbitrator‘s decision. Necessarily, a contract is required for arbitration to take place and to

be binding.

RA 876 recognises the contractual nature of an arbitration agreement.

Sec. 2 Persons and matters subject to arbitration.—Two or more persons or parties may

submit to the arbitration of one or more arbitrators any controversy existing, between them

at the time of the submission and which may be the subject of an action, or the parties to

any contract may in such contract agree to settle by arbitration a controversy thereafter

arising between them. Such submission or contract shall be valid, enforceable and

irrevocable, save upon such grounds as exist at law for the revocation of any contract.

Del Monte case held that a provision to submit to arbitration is a contract.

Since an arbitration agreement is a contract in itself, The doctrine of separability, or

severability, enunciates that an arbitration agreement is independent of the main contract.

The arbitration agreement is to be treated as a separate agreement and the arbitration

agreement does not automatically terminate when the contract of which it is part comes to

an end.

Indeed, the doctrine denotes that the invalidity of the main contract, also referred to as the

container contract, does not affect the validity of the arbitration agreement. Irrespective of

the fact that the main contract is invalid, the arbitration clause/agreement still remains valid

and enforceable.

The separability of the arbitration clause is confirmed in Art. 16(1) of the UNCITRAL Model

Law and Art. 21(2) of the UNCITRAL Arbitration Rules

R.A. No. 876 explicitly confines the court's authority only to the determination of whether ornot there is an agreement in writing providing for arbitration. In the affirmative, the statute

ordains that the court shall issue an order "summarily directing the parties to proceed with

the arbitration in accordance with the terms thereof." If the court, upon the other hand,

finds that no such agreement exists, "the proceeding shall be dismissed."

RCBC V. BANCO DE ORO

Introduction

In RCBC Capital Corporation v Banco de Oro Unibank Inc (GR 196171, December 10

2012) the respondent refused to pay its share of the advance on arbitration costs, as fixed

by the International Chamber of Commerce (ICC) International Court of Arbitration. The

respondent claimed that the amount of the claim was substantially higher – more than 40

times – than the total amount of the counterclaims. The court instructed the arbitration

tribunal to suspend its work unless the parties paid the balance of the advance within 15

days. In view of the respondent's ongoing refusal to pay its share, the claimant was

compelled to pay all advance costs and sought to declare the respondent in default, with

no right to participate in the proceedings.Decision



In a letter to the parties, the chairman wrote that the tribunal had no power under ICC rules

to order the respondent to pay the advance costs sought by the ICC or to give the claimant

relief. It may have been possible for the claimant, in the course of the arbitral hearing, to

make submissions based on the failure of the respondent to pay its share. Relief, if any,

would need to be determined by the tribunal after hearing submissions from the

respondent.

The majority of the tribunal rendered a first partial award, which reserved a resolution on

costs to a further or final award.

In another letter, the claimant reiterated its plea that the respondent be declared in default

and the counterclaims deemed withdrawn. In response, the chairman ruled that the

tribunal had no jurisdiction to declare that the respondent had no right to participate in the

proceedings. Article 36(4) of the ICC rules applies only to counterclaims. The tribunal

interpreted the claimant's letter as an application to the tribunal for the issuance of a partial

award against the respondent in respect of its failure to pay. The claimant confirmed the

tribunal's interpretation.

In the ensuing hearing, the chairman advised the parties as follows:

"1. The Tribunal acknowledges the Respondent's response to the Claimant's application

for a Partial Award, based on the Respondent's failure to pay its share of the costs, as

requested by the ICC.

2. The Tribunal notes that neither party has referred to an article by Mat[t]hew Secomb on

this very subject which appears in the ICC Bulletin Vol. 14 No.1 (Spring 2003). To assist

both sides and to ensure that the Tribunal does not consider material on which the parties

have not been given an opportunity to address, I attach a copy of this article, which alsocontains reference to other scholarly works on the subject.

3. The Tribunal will give each party seven days within which to submit further written

comments as a consequence of being alerted to the above authorities."

The parties submitted their comments with the claimant contending that based on

Secomb's article, whether the contractual or provisional measures approach was applied,

the tribunal was vested with jurisdiction and authority to render an award with respect to

the reimbursement of costs paid by the non-defaulting party.

The respondent, on the other hand, maintained that the claimant's application for

reimbursement of costs had no basis under the ICC rules. According to the respondent,

the matter of costs for arbitration is between the ICC and the parties, not the tribunal and

the parties. An arbitration tribunal can issue decisions only on those costs not fixed by the

ICC.

The respondent also argued that a party's reimbursement for payments of the defaulting

party's share depends on the final arbitral award where the party liable for costs would be

determined. The tribunal then rendered a second partial award requiring the respondent to

pay the claimant the costs it advanced and to consider the respondent's counterclaim

withdrawn.



ordered enforcement of the final award, both the Court of Appeals and the Supreme Court

refused to stay or enjoin its enforcement.

UNITED STATES (NORTH AMERICAN DREDGING CO. OF TEXAS) V. UNITED

MEXICAN STATES

A contract containing a clause depriving the party subscribing to the clause of the right to

submit any claims connected with his contract to an international commission

The individual can make such promise but cannot deprive he or her own state in applying

international remedies

However, there is no rule giving the state the right to intervene in order to strike down such

contract; the remedy of denial of justice is independent of the violation of the contract

Facts:

North American Dredging contracted w/ the Mexican Government to perform certain

services in Mexico. The contract contained a “Calvo Clause” where the corporation agreed

to have no other rights or means of enforcement than those conferred upon Mexicans and

that under no conditions shall the intervention of foreign diplomatic agents be permitted in

any matter relating to the contract. The corporation brought a claim through the US

government for a sum of some $ 230,000. Mexico is now invoking the Calvo Clause.

Issue:

Is the corporation bound by the clause? In this case yes.

Held:Yes

But each case involving a Calvo Clause must be decided on its own merits. If it offends no

principle of IL, then it must be upheld as a valid contractual stipulation. If all the clause

stipulates is that the claimant must exhaust all local remedies out of due respect to the

government of the host state, then there is no violation. Only in case of manifest injustice

or if local remedies are unavailing is he allowed to seek redress from his own government.

But such undertaking cannot deprive the government of his nation of its right of applying

international remedies. There must be a balance between upholding the host state’s

jurisdiction and the national’s state’s right under IL. Neither can the clause deprive the

alien of his citizenship or other rights pertaining thereto. In this case, the corporation

disregarded all local remedies by immediately bringing his claim through his national

government. That being the case, his claim must be dismissed.

DISSENT OF JUDGE NIELSEN IN THE SUBSEQUENT CASE OF INTERNATIONAL

FISHERIES CO.

This dissent is w/ reference to the Dredging Case. The Commission in deciding the caseignored Article V of the Convention between the US and Mexico to the effect that no claim

shall be dismissed due to non-exhaustion of local remedies.” No action by a private



individual can supplant a treaty or principle of IL. No nation can by contract w/ a private

person relieve itself of its obligations under IL or nullify the rights of another state. Only by

means of expatriation can a person by his own act forfeit his government’s right to protect

him. The right of his government to extend protection is guaranteed by IL.

It was the duty of the commission to give effect to the clearly expressed intent of article 5

of the arbitration agreement. The intent and clear legal effect of that article is that claims

shall not be dismissed for failure of claimants to resort to local remedies. Therefore to

reject the claim was to nullify the clear intent and legal effect of provisions by which two

governments stipulated that claims should not be rejected on the ground that there had not

been a resort to legal remedies. A claimant’s right to protection from his government is

determined by the law of that govt.

--------

INTERNATIONAL FISHERIES CASE (NIELSEN DISSENT) – This dissent is w/ reference

to the Dredging Case. The Commission in deciding the case ignored Article V of the

Convention between the US and Mexico to the effect that no claim shall be dismissed due

to non-exhaustion of local remedies.” No action by a private individual can supplant a

treaty or principle of IL. No nation can by contract w/ a private person relieve itself of its

obligations under IL or nullify the rights of another state. Only by means of expatriation can

a person by his own act forfeit his government’s right to protect him. The right of his

government to extend protection is guaranteed by IL.

THE TATTLER (UNITED STATES V. GREAT BRITAIN)

The US citizens’ waiver of claim (and right of libel) in consideration of the release of the

American schooner Tattler are not binding upon the US gov’t. Facts:

This is a claim for $2,028 with interest on account of a seizure of the said schooner Tattler

and its detention for six days by the Canadian authorities in Liverpool (on charge of alleged

violation of Canadian fisheries laws and of the treaty of 1818 between the US and GB)

The owners of the schooner entered into the following undertaking: in consideration of the

release of the American schooner Tattler (on payment of fine of $500) we hereby

guarantee his Majesty King Edward, his successors and assigns... and all whom it does or

may concern, against all claims made or to be made on account of or in respect to such

detention...hereby waiving all such claims and right to libel or otherwise before any court or

tribunal in respect to said detention or to such or any such claims or loss or damage in the

premises.

The payment was under protest. Issue:

WON the claim is waivable? Held and Ratio:

With respect to the national? YES.With respect to the US govt NO.



It has been objected that the renunciation of and the guarantee against any claims are not

binding upon the govt of the US which presents the claim.

In this case only the right of the US is supporting is that of its national who waived his right

and consequently in presenting this claim before the tribunal it can rely on no legal ground

other than those which would have been open to its national.

For these reasons, this tribunal decides that the claim must be dismissed.

-----------

THE TATTLER CASE – “right of national was waived / not the right of the state” The

schooner “Tattler” was seized by Canadian authorities for violation of fishing laws. It was

detained and then released subject to the condition that “they relieve His Majesty against

any claims made or to be made on account if such detention.” Payment was made under

protest. Does the renunciation bind the US? It must be noted that only claim that the US is

supporting is that of its national; thus the Tribunal can only rely on the grounds open to the

national. That being the case, the case should be dismissed.

DD: From what I see, only the right of the national was deemed validly waived, but not the

right of the government to protect its national – w/c cannot be impaired by such stipulation.

THE PANEVEZYS-SALDUTISKIS RAILWAY CASE

The test of right of claim by a state is the bond of nationality which existed at the time the

injury occurred. It is also an established rule that exhaustion of remedies afforded bymunicipal law must be availed of except if there is an ineffective remedy

Facts:









Now Estonia brings a claim on behalf of Esimene.

Issue:

W/N the case can prosper

Held:

No.


Estonian nationality. For this purpose, the Treaty of Tartu would have to be examined.Second, Lithuania avers that Estonia failed to exhaust local remedies afforded under

municipal law.



This contention is sustained.

True that there is no need for resort to municipal courts if the courts have no jurisdiction or

if the exercise would be futile. Whether or not the local courts have jurisdiction is

addressed to the sound discretion of the local tribunals. Besides, property rights are

generally governed by municipal laws. In this case, Estonia has not even commenced any

action in the municipal courts; that being the case, the case should be dismissed.

------------------

PANEVEZYS – SALDUTISKIS RAILWAY CASE – “railways / nationality at time of injury /

local remedies”









Now Estonia brings a claim on behalf of Esimene. Can the case prosper?



Second, Lithuania avers that Estonia failed to exhaust local remedies afforded undermunicipal law. This contention is sustained. True that there is no need for resort to

municipal courts if the courts have no jurisdiction or if the exercise would be futile. Whether

or not the local courts have jurisdiction is addressed to the sound discretion of the local

tribunals. Besides, property rights are generally governed by municipal laws. In this case,

Estonia has not even commenced any action in the municipal courts; that being the case,

the case should be dismissed.

NOTTEBOHM CASE (LIECHTENSTEIN V. GUATEMALA)

The naturalisation of Nottebohm under Liechtenstein law will not be sufficient to allow a

claim in his behalf.

It is shown that Nottebohm was a former German national who has resided in Guatemala

for more than 30 years since 1905. It was only in October 1939, after the opening of WW2

that he submitted an application for naturalisation.

This was an obvious attempt to enable him to substitute for his status as a national of a

belligerent German State that of a national of a neutral Liechtenstein and evade

proceedings against him and his property

interests.



He continued to stay in Guatemal until his removal as a result of war measures in 1943. He

attempted to return to Guatemal but was refused, for which reason he finally went to

Liechtenstein in 1946.

The court held that in cases of dual nationality, where the question arose with regard to the

exercise of protection, the real and effective nationality test has been applied

Facts:

Nottebohm was born in Germany, and was a German citizen, although he lived in

Guatemala since 1903, and conducted a prosperous business there, but never became a

citizen of Guatemala.

In 1939, he applied to become a citizen of Liechtenstein.

The application was approved even though a requirement was that he be in residence

there for at least 3 years, but there was an exception and he became a citizen of

Liechtenstein.

When he tried to re-enter Guatemala in 1943, he was refused entry (probably because of

his original German citizenship and because of WWII). He was later extradited to the U.S.,

where he was held at an internment camp until the end of the war. All his possessions in

Guatemala were confiscated. After his release, he lived out the rest of his life in

Liechtenstein.

Liechtenstein offered Nottebohm protection against the government of Guatemala and

sued Guatemala in the International Court of Justice. Basically, Liechtenstein is saying that

because of Nottebohm’s naturalisation, Liechtenstein is entitled to claim from Guatemala in

his behalf.

However, the government of Guatemala argued that Nottebohm did not gain Liechtensteincitizenship for the purposes of international law.

Issue:

W/N Liechtenstein can sue on behalf of Nottebohm - No

Held:

No





of the nationality of Liechtenstein.

True that in IL, each state may lay down rules in conferring its citizenship; but in order to be

invoked against another state, nationality must correspond to the factual situation – such

as the social fact of attachment, or a genuine connection of existence, sentiments, and

interests. These facts are completely missing.



national of a belligerent (Germany) that of a neutral state for the purpose of bringing hisclaims.



Therefore, his claim should be dismissed.

--------

THE NOTTEBOHM CASE – “nationality / conformity with factual situation” Nottebohm was

a German national residing in Guatemala. He left the country and proceeded to

Liechtenstein for the purpose of acquiring the latter’s nationality through naturalization. He

was granted naturalization despite the fact that he has stayed there for a short period of

time only. Now he returned to Guatemala and brought a claim against the Guatemalan

Government through the intervention of Liechtenstein. Guatemala objected and refused to

recognize the right of Liechtenstein to bring a suit in his behalf. Is the claim by

Liechtenstein in behalf of Nottebohm admissible? In this case no.





of the nationality of Liechtenstein. True that in IL, each state may lay down rules in

conferring its citizenship; but in order to be invoked against another state, nationality must

correspond to the factual situation – such as the social fact of attachment, or a genuine

connection of existence, sentiments, and interests. These facts are completely missing.



national of a belligerent (Germany) that of a neutral state for the purpose of bringing hisclaims. Therefore, his claim should be dismissed

CASE CONCERNING THE BARCELONA TRACTION (BELGIUM V. SPAIN)

In determining nationality of a corporation, the place of incorporation and the location of

the registered officer are material elements

It was found that Barcelona Traction was incorporated under Canadian law and had its

registered office in Canada. Belgium did not have the capacity to espouse the claim of

Belgian shareholders in the company.

Facts:







shareholders, many of w/c were Belgian. Barcelona Traction was also later on declaredbankrupt under Canadian Law. Now, Belgium brings an action in behalf of its nationals





Issue:

W/N Belgium has standing against Spain - No

Held:

No










arise from the mere lack of jus standi of another state; there must exist some legal basis


-------------

BARCELONA TRACTION CASE – “separate entity / nationality of corporation followed”


principal office. Several Belgian nationals held significant shares therein. It issued severalbonds secured by trust deeds funded by its subsidiary corporations located in Spain. The





bankrupt under Canadian Law. Now, Belgium brings an action in behalf of its nationals











Note: According to the commentary of Herbert Briggs, the jus standi of one state cannotarise form the mere lack of jus standi of another state; there must exist some legal basis




BANCO NACIONAL DE CUBA V. PETER LF SABBATINO

The Cuban Government characterised the reduction in the Cuban sugar quota by the US

as an act of “aggression for political purpose”, which prompted the Cuban President to

nationaliza by forced expropriation property or enterprises in which American nationals had

an interest.

The US SC held that however offensive to the public policy of the US and its constituent

states an expropriation of this kind may be, we conclude that both the national interest and

progress toward the goal of establishing the rule of

law among nations are best served by maintaining intact the act of state doctrine in this

realm of application

Facts:

The US Congress amended the Sugar Act reducing the sugar quota for Cuba, w/c reacted

negatively, alleging that it was an act of aggression and for political purposes. Thus, it

implemented Law No. 851 granting the president the power to forcibly expropriate property

or enterprises where US nationals held an interest. Compensation was a pipe dream. The

president implemented the same; one of the affected corporations was Compania

Azucarrera, principally owned by Americans. The sugar it was supposed to export to the

US was forcibly expropriated. Thus, Banco Nacional, the assignee of the bills of exchange

pursuant to the transaction was refused payment by the purchaser of the sugar; now it

goes before US courts, alleging that the acts of Cuba contravene IL and bringing forth aclaim against the same.

Issue:

W/N US SC can rule on the propriety of Cuba’s expropriation - No

Held:

No.

The act of state doctrine must be applied. Every sovereign state is bound to respect the

acts of another done w/in its own territory and shall not interfere w/ the same. The courts

of one country are bound to abstain from interfering w/ such acts of foreign states w/in their

jurisdiction – especially if the Executive Branch refuses to act. This is demanded by the

highest considerations of comity and expediency. If IL does not demand the application of

the rule, neither does it forbid its application even if the act complained of violates IL.

Offensive to the public policy of the US the expropriation may be, however, both the

national interest and progress and the rule of law among nations are best served by

maintaining intact the act of state doctrine.

Dissent of Justice White:

The act of state doctrine does not require the courts to decide cases in utter violation of IL

and to the prejudice of the rights of the litigants. Deference to the doctrine was not meantto be absolute. The rule may be applied if there is no clear violation of the rules of IL. But

in this case, there was a clear and blatant violation of IL – the measure was retaliatory and



discriminatory. To the proscription against arbitrary discrimination, there is already

agreement among all nations. All exercise of sovereign power must conform to the rules of

IL. Neither has the US Executive Branch requested the judiciary to defer; on the contrary, it

terminated diplomatic relations w/ Cuba. In this case, the US blindly adhered to the act of

state rule and argued for the rule of non- examination.

Note:

Under the Foreign Assistance Act of the US, enacted a year after this decision (1965),

Congress decreed that no court shall decline to make a determination on the merits based

on the act of state doctrine if the act

of the foreign state is in patent violation of IL, principles of compensation, or other

standards set forth therein. The US may also suspend any assistance to such government

if the latter is a beneficiary of the US and it nationalised or expropriated properties

arbitrarily or repudiated valid agreements, or imposed discriminatory taxes and other such

measures.

---------------

BANCO NACIONAL DE CUBA v. PETER SABBATINO – “sugar quota / forced

expropriation / act of state” The US Congress amended the Sugar Act reducing the sugar

quota for Cuba, w/c reacted negatively, alleging that it was an act of aggression and for

political purposes. Thus, it implemented Law No. 851 granting the president the power to

forcibly expropriate property or enterprises where US nationals held an interest.Compensation was a pipe dream. The president implemented the same; one of the

affected corporations was Compania Azucarrera, principally owned by Americans. The

sugar it was supposed to export to the US was forcibly expropriated. Thus, Banco

Nacional, the assignee of the bills of exchange pursuant to the transaction was refused

payment by the purchaser of the sugar; now it goes before US courts, alleging that the acts

of Cuba contravene IL and bringing forth a claim against the same.

The act of state doctrine must be applied. Every sovereign state is bound to respect the

acts of another done w/in its own territory and shall not interfere w/ the same. The courts

of one country are bound to abstain from interfering w/ such acts of foreign states w/in their

jurisdiction – especially if the Executive Branch refuses to act. This is demanded by the

highest considerations of comity and expediency. If IL does not demand the application of

the rule, neither does it forbid its application even if the act complained of violates IL.

Offensive to the public policy of the US the expropriation may be, however, both the

national interest and progress and the rule of law among nations are best served by

maintaining intact the act of state doctrine.

Dissent of Justice White:

The act of state doctrine does not require the courts to decide cases in utter violation of ILand to the prejudice of the rights of the litigants. Deference to the doctrine was not meant

to be absolute. The rule may be applied if there is no clear violation of the rules of IL. But



in this case, there was a clear and blatant violation of IL – the measure was retaliatory and

discriminatory. To the proscription against arbitrary discrimination, there is already

agreement among all nations. All exercise of sovereign power must conform to the rules of

IL. Nether has the US Executive Branch requested the judiciary to defer; on the contrary, it

terminated diplomatic relations w/ Cuba. In this case, the US blindly adhered to the act of

state rule and argued for the rule of non- examination.

Note: Under the Foreign Assistance Act of the US, enacted a year after this decision

(1965), Congress decreed that no court shall decline to make a determination on the

merits based on the act of state doctrine if the act of the foreign state is in patent violation

of IL, principles of compensation, or other standards set forth therein. The US may also

suspend any assistance to such government if the latter is a beneficiary of the US and it

nationalized or expropriated properties arbitrarily or repudiated valid agreements, or

imposed discriminatory taxes and other such measures.

ALFRED DUNHILL OF LONDON INC. V. THE REPUBLIC OF CUBA

US SC did not apply the act of state doctrine to this case wherein the Cuban Government

failed to return to Alfred Dunhill of London funds mistakenly paid by dunhill for cigars that

had been sold to Dunhill by certain expropriated Cuban cigar businesses.

The act relied upon by Cuba was an act arising out of the conduct by Cuba’s agents in the

operation of cigar business for profit.

Facts:

Dunhill was an importer of cigars from Cuba. The Cuban corporations w/c exported thecigars to Dunhill were expropriated by the Cuban Government. Agents of the Cuban

Government continued to ship cigars to the

US to w/c Dunhill made appropriate payments. It turned out that the US courts did not give

effect to the foreign confiscations w/o compensation. As to the accounts owing at the time

of the intervention of the agents of Cuba, they were adjudged to be lawfully owed to the

former importers. Now the former importers and rightful payees are claiming from Dunhill

the amounts mistakenly paid by the latter to Cuba, w/c had no right to claim the same and

w/c repudiates the Dunhill’s claim for reimbursement invoking the “act of state doctrine.”

Issue:

W/N Cuba is excused from paying the rightful payees by virtue of the act of state doctrine -

No

Held:

No.

The contention of Cuba is untenable. The mistaken payments gave rise to quasi-contract.

The act of state rule is inapplicable in this case and should not be extended to validate the

repudiation of purely commercial obligations. They are not public and sovereign acts or

those carried out in the exercise of governmental authority. The “restrictive theory” wasapplied in this case. A mere assertion of the act of state doctrine will not suffice. It has also

been opined in an appendix to this case that the Sabbatino Ruling should be reexamined.



-----------

ALFRED DUNHILL v. CUBA – “cigar deals / act of state / inapplicable to commercial

transactions” Dunhill was an importer of cigars from Cuba. The Cuban corporations w/c

exported the cigars to Dunhill were expropriated by the Cuban Government. Agents of the

Cuban Government continued to ship cigars to the US to w/c Dunhill made appropriate

payments. It turned out that the US courts did not give effect to the foreign confiscations

w/o compensation. As to the accounts owing at the time of the intervention of the agents of

Cuba, they were adjudged to be lawfully owed to the former importers. Now the

formerimporters and rightful payees are claiming from Dunhill the amounts mistakenly paid

by the latter to Cuba, w/c had no right to claim the same and w/c repudiates the Dunhill’s

claim for reimbursement invoking the “act of state doctrine.”

The contention of Cuba is untenable. The mistaken payments gave rise to quasi-contract.

The act of state rule is inapplicable in this case and should not be extended to validate the

repudiation of purely commercial obligations. They are not public and sovereign acts or

those carried out in the exercise of governmental authority. The “restrictive theory” was

applied in this case. A mere assertion of the act of state doctrine will not suffice. It has also

been opined in an appendix to this case that the Sabbatino Ruling should be reexamined.

BUTTER GAS AND OIL AND ANOTHER V. HAMMER AND ANOTHER

In a litigation instituted in the UK between 2 petrol companies, there were allegations of

conspiracy to cheat and defraud the UK involving foreign rulers in the Persian Gulf region.The plaintiffs Buttes applied for an order that the court should not exercise jurisdiction in

respect of specified matters said to ba “Acts of state” of the governments of Sharjah, Um al

Qaiwan, Iran and the UK.

The issue arose from a press conference given in London by Dr. Hammer

wherein he accused Buttes of using improper methods and colluding with the rulers of

Sharjah to backdate a decree by the ruler extending the territorial waters of Sharjah from 3

miles to 12 miles so as to obtain for themselves a benefit of the oil-bearing deposit at the

location which DR. Hammer claimed was discovered by and belonging to a competitor of

Buttes.

It was held that the court cannot entertain the silt for it would bring to trial non- justiciable

issues

Facts:

Iran, Umm al Qaiwain (UAQ), and Sharajah laid claim to certain portions of the Abu Musa

(a portion of the Arabian Gulf). The area was oil rich. Sharajah backdated a Decree

extending to 12 miles (formerly 3 miles) from the island its territorial waters, obtaining the

oil-bearing deposits therefrom. Buttes Gas was able to obtain a concession for theexclusive exploitation of the area. Occidental and Dr. Hammer allege that Buttes conspired

w/ Sharajah and inducing the latter to backdate the decree for the purpose of defrauding



Occidental (among others), the concessionaire who allegedly discovered the deposits.

Occidental’s concession was later terminated by UAQ and is now permanently deprived of

its rights to exploitation. It sues for damages against Buttes and alleges that the

agreements between the said Persian Territories delineating their interests to the disputed

area are fraudulent, unlawful, and void.

Issue:

W/N UK courts can rule on the matter - No, because of act of state

Held:

No

The act of state doctrine applies in this case. The (English) courts will not adjudicate upon

the transactions among foreign states – and this is a settled principle of law. Further, to

resolve this case would require the court to make a pronouncement as to the boundary

agreements (territorial water limits, continental shelf allocations) between states – w/c the

English court cannot do, especially in the context of a dispute between private parties.

Occidental may have been deprived of its rights, but this case involves actions of sovereign

states. For reasons above stated, the action of Occidental must fail as it raises non-

justiciable issues.

------------

BUTTES GAS & OIL CO. v. HAMMER – “oil dispute / backdated decree / act of state” Iran,

Umm al Qaiwain (UAQ), and Sharajah laid claim to certain portions of the Abu Musa (a

portion of the Arabian Gulf). The area was oil rich. Sharajah backdated a Decree extendingto 12 miles (formerly 3 miles) from the island its territorial waters, obtaining the oil-bearing

deposits therefrom. Buttes Gas was able to obtain a concession for the exclusive

exploitation of the area. Occidental and Dr. Hammer allege that Buttes conspired w/

Sharajah and inducing the latter to backdate the decree for the purpose of defrauding

Occidental (among others), the concessionaire who allegedly discovered the deposits.

Occidental’s concession was later terminated by UAQ and is now permanently deprived of

its rights to exploitation. It sues for damages against Buttes and alleges that the

agreements between the said Persian Territories delineating their interests to the disputed

area are fraudulent, unlawful, and void.

The act of state doctrine applies in this case. The (English) courts will not adjudicate upon

the transactions among foreign states – and this is a settled principle of law. Further, to

resolve this case would require the court to make a pronouncement as to the boundary

agreements (territorial water limits, continental shelf allocations) between states – w/c the

English court cannot do, especially in the context of a dispute between private parties.

Occidental may have been deprived of its rights, but this case involves actions of sovereign

states. For reasons above stated, the action of Occidental must fail as it raises non-

justiciable issues.

VINUYA V, ROMULO

pil recit cases until module 13

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