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World Court Digest

I. Substantive International Law - First Part
7. LAW OF TREATIES
7.8. Interpretation

¤ Oil Platforms
(Islamic Republic of Iran v.
United States of America)
Preliminary Objections
Judgment of 12 December 1996,
I.C.J. Reports 1996, p. 803

[pp. 814-815] 29. The Court must now turn its attention to the documents produced by the Parties in support of their respective positions concerning the meaning to be given to Article I. In this regard, it may be thought that, if that Article had the scope that Iran gives it, the Parties would have been led to point out its importance during the negotiations or the process of ratification. However, the Court does not have before it any Iranian document in support of this argument. As for the United States documents introduced by the two Parties, they show that at no time did the United States regard Article I as having the meaning now given to it by the Applicant.

A clause of this type was inserted after the end of the Second World War into four of the Treaties of Friendship and Commerce or Economic Relations concluded by the United States, i.e., those concluded with China, Ethiopia and Iran as well as with Oman and Muscat. Indeed, during the negotiation of the treaty with China, the United States Department of State had indicated, in a memorandum addressed to its embassy in Chongqing, that if such a clause was not customary in treaties of this kind concluded by the United States, its inclusion was nonetheless justified in that case "in view of the close political relations between China and the United States". But, during the discussions in the United States Senate that preceded the ratification of the four Treaties, the clause does not, according to the material submitted to the Court, appear to have been given any particular attention. Only in the message from the Secretary of State whereby he transmitted the Treaty with Ethiopia to the Senate, after referring to the provisions in question, was it pointed out that:

"Such provisions, though not included in recent treaties of friendship, commerce and navigation, are in keeping with the character of such instruments and serve to emphasize the essentially friendly character of the treaty."

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

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

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

[p. 836 S.O. Shahabuddeen] Finally, I entertain a reservation over the Court's treatment of the Respondent's internal documentation relating to its ratification procedures (Judgment, para. 29, first paragraph). This material does not form part of the travaux préparatoires of the previously ended treaty negotiations or part of the circumstances of the conclusion of the Treaty. Nor does it evidence any subsequent practice of the Parties in the application of the Treaty which establishes their agreement regarding its interpretation. The argument based on the fact that the material was in part introduced by the Applicant is a powerful one; but perhaps it does not go far enough. It is necessary to distinguish between the material and what it proves, and more particularly as compared with what has to be proved. In Anglo-Iranian Oil Co., in the view of the Court what had to be proved was the intention of a single party in making a declaration which was treated by the Court as a unilateral statement, and not as a treaty provision; the material in question was regarded as admissible to prove that intention (I.C.J. Reports 1952, p. 107). In this case, what has to be proved is the common intention of both Parties as expressed in the text of the concluded treaty. The Court does not say that the material in question shows that the Applicant's understanding of the Treaty was the same as the Respondent's. Taken at the highest in favour of the Respondent, what the material shows is that the Respondent's then understanding of the Treaty was the same as its present understanding. But this unilateral consistency does not make the material relevant to proof of that which has to be proved; what is relevant is not the Respondent's separate understanding, however consistent, but the common intention of both Parties as expressed in the terms of the concluded Treaty.

[pp. 864-865 S.O. Rigaux] Although to have regard to the travaux préparatoires of an international instrument in order to shed light on its wording if it seems ambiguous is in accordance with the caselaw of the Court, the same cannot be said of the absence of any relevant indication in the documents produced by the Parties. That silence may not be invoked in favour of one interpretation rather than the opposite interpretation. We are dealing here in reality with a failure to interpret. It is not surprising that the documents produced do not offer any useful information: it is rare not only for contracting parties - whether they be to an international treaty or to a contract in private law - to take the trouble to agree on the interpretation of the clauses which would have most needed clarification, but even for each of the Parties to have interpreted a provision one way rather than another when that provision may be interpreted in several ways. It is only when the rule is to be applied that the question of interpretation is raised on the occasion of a specific dispute,; It is for those reasons that the interpretation given by the Court to Article 1 of the Amity Treaty appears to me to be weakened by paragraph 29 which contains considerations not referred to in the methods of interpretation provided by the Vienna Convention on the Law of Treaties of 23 May 1969. The "documents" invoked by the Parties do not come under the category of "travaux préparatoires", they provide no information as to the circumstances in which the instrument was drafted and adopted. Reference should be made on this point to the Judgment of 15 February 1995 in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (I.C.J. Reports 1995, p. 5, especially paras. 41-42, pp. 21-23). See also the enlightening analysis given by Vice-President Schwebel in his dissenting opinion, pages 28 to 32. In that case, as in the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad) (see Judgment, I.C.J. Reports 1994, p. 5, especially para. 55, pp. 27-28), the documents produced by the Parties related to their negotiations and the hesitations or the second thoughts which had occurred when the text was adopted, Whatever the interpretative value placed on such documents, it is altogether different from that of internal documents produced in one of the States between which the Treaty was concluded and that is all the more so since it contains a unilateral interpretation relating to a similar treaty concluded with another State. If the Court considered that, on this point, it should uphold the reasoning of the Parties, it should have refused to see any relevance in documents which did not support either of the two interpretations which form the subject-matter of the dispute between the Parties.

Paragraph 30 gives rise to objections of a different nature. It is hardly appropriate to draw conclusions from the absence of a practice in order to confer one interpretation rather than another on a treaty. The practice would have been relevant if it had shown that the Parties or one of them had interpreted Article I the same way as the Court had or, at the very least, had, if only implicitly, discarded the opposite interpretation. The cases cited in support of the absence of any practice are not very convincing. In the case of the United States Diplomatic and Consular Staff in Tehran, the 1955 Amity Treaty only played a subsidiary role and the fact that the Applicant did not rely on Article I of that Treaty in the case of the Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America) does not deprive it of the right to invoke it for the first time in the present case. Moreover, in that earlier case the Amity Treaty was not the only or even the principal ground put forward to justify the Court's jurisdiction; and furthermore it was invoked for the first time in the Applicant's Memorial (24 July 1990, pp. 179-184). In its reply to the objection raised in that regard by the United States (Preliminary Objections raised by the United States of America, pp. 109-117), Iran stated that it was "a supplementary basis of jurisdiction" (Observations and Submissions on the Preliminary Objections, submitted by the Islamic Republic of Iran, Vol. 1, p. 214, para. 6.31).

[pp. 882-883 D.O. Schwebel] The Treaty simply does not deal with that kind of use of force, which is rather governed by the Charter of the United Nations and other provisions of international law relating to armed conflict between States.

This conclusion is sustained by papers submitted by the United States Government to the United States Senate in connection with the ratification of the Treaty of 1955 as well as other very similar treaties of friendship, commerce and navigation. Not only did the United States cite and rely upon these papers in these proceedings; it is significant that Iran itself did so as well (see the Memorial submitted by the Islamic Republic of Iran, Exhibit 98, which quotes from a statement on commercial treaties with Iran, Nicaragua and the Netherlands submitted to the United States Senate on 3 July 1956, and the Observations and Submissions on the United States Preliminary Objection Submitted by the Islamic Republic of Iran, Exhibit 10, which quotes from a memorandum to the United States Embassy at Chongqing of 2 February 1945 for use in negotiating the Treaty of Friendship, Commerce and Navigation with China). These papers may properly be weighed by the Court not as travaux préparatoires, but as part of the circumstances of the conclusion of the Treaty, introduced by both of the Parties to the Treaty and to these proceedings, as to the admissibility of which no question was raised by the Court. Indeed in its Judgment the Court itself relies on these documents – and the absence of divergent Iranian documents - to show the meaning attached to provisions of the Treaty of 1955.