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III. The International Court of Justice
2. THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE
2.5. Jurisdiction on the Basis of Treaties
2.5.3. Specific Treaties

¤ 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. 810-812] 18. The Court will deal initially with the Respondent's argument that the Treaty of 1955 does not apply to questions concerning the use o I force. In this perspective, the United States contends that the attack and destruction of the oil platforms

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

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

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

In effect, according to the United States, Iran's claims raise issues relating to the use of force, and these issues do not fall within the ambit of the Treaty of 1955. For this reason, the Court is said to lack jurisdiction to entertain the submissions of the Applicant.
19. In its Observations and Submissions on the Preliminary Objection of the United States, Iran maintains that the dispute that has arisen between the Parties concerns the interpretation or application of the Treaty of 1955. It therefore requests that the preliminary objection be rejected, or, on a subsidiary basis, if it is not rejected outright, that it should be regarded as not having an exclusively preliminary character within the meaning of Article 79, paragraph 7, of the Rules of Court.
20. The Court notes in the first place that the Treaty of 1955 contains no provision expressly excluding certain matters from the jurisdiction of the Court. Indeed, Article XX, paragraph I (d), provides that:

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

.................................................................................

(d) necessary to fulfill the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests."

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

21. The Treaty of 1955 imposes on each of the Parties various obligations on a variety of matters. Any action by one of the Parties that is incompatible with those obligations is unlawful, regardless of the means by which it is brought about. A violation of the rights of one party under the Treaty by means of the use of force is as unlawful as would be a violation by administrative decision or by any other means. Matters relating to the use of force are therefore not per se excluded from the reach of the Treaty of 1955. The arguments put forward on this point by the United States must therefore be rejected.

[pp. 813-815] 27. Article I states that "There shall be firm and enduring peace and sincere friendship" between the two contracting States. The Court considers that such a general formulation cannot be interpreted in isolation from the object and purpose of the Treaty in which it is inserted.

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

Article I is in fact inserted not into a treaty of that type, but into a treaty of "Amity, Economic Relations and Consular Rights" whose object is, according to the terms of the Preamble, the "encouraging [of] mutually beneficial trade and investments and closer economic intercourse generally" as well as "regulating consular relations" between the two States. The Treaty regulates the conditions of residence of nationals of one of the parties on the territory of the other (Art. 11), the status of companies and access to the courts and arbitration (Art. 111), safeguards for the nationals and companies of each of the contracting parties as well as their property and enterprises (Art. IV), the conditions for the purchase and sale of real property and protection of intellectual property (Art. V), the tax system (Art. VI), the system of transfers (Art. VII), customs duties and other import restrictions (Arts. VIII and IX), freedom of commerce and navigation (Arts. X and XI), and the rights and duties of Consuls (Arts. XII-XIX).

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

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

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

29. The Court must now turn its attention to the documents produced by the Parties in support of their respective positions concerning the meaning to be given to Article I. In this regard, it may be thought that, if that Article had the scope that Iran gives it, the Parties would have been led to point out its importance during the negotiations or the process of ratification. However, the Court does not have before it any Iranian document in support of this argument. As for the United States 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.

[pp. 815-816] 32. Article IV, paragraph 1, of the Treaty of 1955 provides that:

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

33. Iran contends that this text places each of the Parties under an obligation to accord "fair and equitable treatment" to nationals and property of the other Party and to refrain from applying any "unreasonable or discriminatory measures" to them, wherever those nationals or that property may be. It submits that it falls to the Court to evaluate the lawfulness of the armed actions of the United States in relation to those provisions.

34. The United States considers on the contrary that

"Article IV, paragraph 1, deals with the treatment by one Party of nationals and companies of the other Party that come within its territory for commercial or private purposes".

It submits that that text

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

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

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

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

[pp. 817-820] 37. It remains to consider what consequences, in terms of the jurisdiction of the Court, can be drawn from Article X, paragraph 1, of the Treaty of 1955.
That paragraph reads as follows: "Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation."

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

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

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

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

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

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

44. The Court does not have to enter into the question whether this provision is restricted to commerce "between" the Parties. It is not contested between them that oil exports from Iran to the United States were - to some degree - ongoing at least until after the destruction of the first set of oil platforms.

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

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

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

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

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

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

46. Treaties dealing with trade and commerce cover a vast range of matters ancillary to trade and commerce, such as shipping, transit of goods and persons, the right to establish and operate businesses, protection from molestation, freedom of communication, acquisition and tenure of property. Furthermore, in his Report entitled "Progressive Development of the Law of International Trade", the Secretary-General of the United Nations cites, among a number of items falling within the scope of the Law of International Trade, the conduct of business activities pertaining to international trade, insurance, transportation, and other matters (United Nations, Official Records of the General Assembly, Twentyfirst Session, Annexes, Agenda item 88, doe. A/6396; also in Basic Documents on International Trade Law, Chia-Jui Cheng (ed.), 2nd rev. ed., p. 3).

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

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

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

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

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

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

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

The Court points out in this respect that the oil pumped from the platforms attacked in October 1987 passed from there by subsea line to the oil terminal on Lavan Island and that the Salman complex, object of the attack of April 1988, was also connected to the oil terminal on Lavan by subsea line.

51. The Court notes that Iran's oil production, a vital part of that country's economy, constitutes an important component of its foreign trade.
On the material now before the Court, it is indeed not able to determine if and to what extent the destruction of the Iranian oil platforms had an effect upon the export trade in Iranian oil; it notes nonetheless that their destruction was capable of having such an effect and, consequently, of having an adverse effect upon the freedom of commerce as guaranteed by Article X, paragraph 1, of the Treaty of 1955. It follows that its lawfulness can be evaluated in relation to that paragraph. The argument made on this point by the United States must be rejected.

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

[pp. 875-877 D.O. Schwebel] The threshold question that the Court must resolve is, is a dispute over attacks by United States Armed Forces against Iranian objectives in the described circumstances a dispute that arises under the Treaty of Amity, Economic Relations, and Consular Rights?

The answer to that question as I see it is, obviously not. It is obvious from the title, preamble, and terms of the Treaty. It is obvious from the circumstances of the conclusion as well as the text of the Treaty when those circumstances are set out. And what the text and circumstances of the Treaty demonstrate is sustained by such subsequent interpretation as the parties have placed upon it.

The preamble of the Treaty provides:

"The United States of America and Iran, desirous of emphasizing the friendly relations which have long prevailed between their peoples, of reaffirming the high principles in the regulation of human affairs to which they are committed, of encouraging mutually beneficial trade and investments and closer economic intercourse generally between their peoples, and of regulating consular relations, have resolved to conclude, on the basis of reciprocal equality of treatment, a Treaty of Amity, Economic Relations, and Consular Rights ..."

It is plain that this is a Treaty which is essentially concerned with encouraging mutually beneficial trade and investments and closer economic intercourse on the basis of reciprocal equality of treatment. There is no suggestion of regulating the use of armed force by one party against the other.

Article I of the Treaty provides that there shall be firm and enduring peace and sincere friendship between the United States and Iran. The Court has quite correctly held that this provision must merely be regarded as fixing an objective, in the light of which other Treaty provisions are to be interpreted and applied; of itself it imposes no obligations, including obligations governing the use of force in international relations. Those other Treaty provisions regulate the conditions of residence of nationals of one party on the territory of the other, particularly for purposes of trade and investment, and assure the nationals of one party the most constant protection and security in the territory of the other (Art, II); treat the juridical status of companies and access to courts and arbitration (Art. III); provide for fair and equitable treatment of the nationals and companies of the other party and prescribe the most constant protection and security for the property of nationals and companies of either party in the territory of the other (Art. IV); provide for the leasing of real property and the acquisition of other property and its disposition by sale or testament or otherwise, as well as effective protection of intellectual property (Art. V); govern taxation (Art. VI); regulate financial transfers (Art. VII); regulate imports, exports and customs duties (Arts. VIII and IX); treat freedom of commerce and navigation (Art. X) and economic transactions by government agencies (Art. Xl); and provide for the rights and duties of consuls (Arts. XII-XlX). None of these core provisions of the Treaty suggests that attacks by armed forces of one party against what it treats as military objectives within the jurisdiction of the other party are within the reach of the Treaty.

It is significant as well that the Treaty contains none of the treaty provisions which typically do bear on the international use of force. There is no pledge of non-aggression or alliance. There is no reference to military assistance by one party in the event of armed attack upon or aggression against the other. There is no reference to regional security arrangements, to the provision of military equipment, to status of forces, to bases on the territory of one party for the forces of the other. Also significant is the fact, which the Court's Judgment acknowledges, that the United States and Iran concluded other treaty arrangements for such purposes, notably the Agreement of Co-operation between the Government of the United States of America and Imperial Government of Iran of 5 March 1959. That Agreement affirms "their right to co-operate for their security and defence in accordance with Article 51 of the Charter of the United Nations" and declares that the United States "regards as vital to its national interest and to world peace the preservation of the independence and integrity of Iran". It provides that, in case of aggression against Iran, the United States will take appropriate action, including the use of armed forces, in order to assist Iran at its request. It also provides for the continued furnishing to Iran of military and economic assistance, and for cooperation with other Governments in mutually agreed defensive arrangements (Treaties and Other International Acts Series 4189).

Moreover, Article XX of the Treaty of 1955 indicates that certain international uses of armed force, far from being within the compass of the Treaty, are excluded from it. Article XX - the sole reference in the Treaty to such matters - provides that:

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

Article XX is an exclusion clause. It excludes from the areas regulated by the obligations of the Treaty the application of specified measures, including measures of a party "necessary to protect its essential security interests". Such an exclusion can hardly entitle the Court to assume jurisdiction over a claim that engages the essential security interests of the United States if not Iran as well. The object of Iran's claims in this case is the calculated application of armed force by the United States against what it has treated as military objectives within the jurisdiction of Iran, which objectives for its part Iran views as vital to its economic and strategic interests. It follows that, since the Treaty does not preclude the application of such measures, they do not fall within its regulated reach and hence do not fall within the scope of the compromissory clause submitting disputes "as to the interpretation or application of the present Treaty" to the jurisdiction of the Court.

[p. 882 D.O. Schwebel] Apart from Article XX, the Court more generally concludes:

"The Treaty of 1955 imposes on each of the Parties various obligations on a variety of matters. Any action by one of the Parties that is incompatible with those obligations is unlawful, regardless of the means by which it is brought about. A violation of the rights of one party under the Treaty by means of the use of force is as unlawful as would be a violation by administrative decision or by any other means. Matters relating to the use of force are therefore not per se excluded from the reach of the Treaty of 1955." (Para. 21.)

I agree with this reasoning in a measure. If Iran or the United States were to expropriate property of a national of the other without compensation and use force in the process, or if Iran or the United States were by force to maltreat or imprison a consul of the other, the Treaty would be violated. To this extent, the Court is right to say that a violation of the rights of a party under the Treaty by means of the use of force is as much a breach as would be a violation by administrative decision or other means. In this sense, matters relating to the use of force are not as such excluded from the purview of the Treaty.

But it does not follow that the use by one party to the Treaty of its armed forces to attack what it treated as military objectives within the jurisdiction of the other party is within the reach of the Treaty. he 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.

[p. 897 D.O. Oda] 18. In view of the basic principle of international justice that referral to the Court should be based upon the consent of sovereign States, neither one of the States to a bilateral treaty could be presumed to have agreed (and certainly, in fact, never has agreed) to let the other State refer unilaterally to the Court a dispute touching upon the object and purpose of the treaty, as, without a mutual understanding on those matters, the treaty itself would not have been concluded. The difference of views of the two States relating to the scope - the object and purpose - of a treaty cannot be the subject of an adjudication by the Court unless both States have given their consent; such a dispute may, however, be brought to the Court by a special agreement or, alternatively, there may be an occasion for the application of the rule of forum prorogatum. This is, then, quite different from the case of the "interpretation or application" of the individual provisions of the treaty on which the two States may, if the need arises, argue under the compromissory clause of that treaty from opposite stances before the Court.

[p. 899-900 D.O. Oda] Iran has brought the present case to the Court in the hope that the Court will find that the United States had breached several obligations under the 1955 Treaty and international law, and has contended that "the Court has jurisdiction under the Treaty of Amity to entertain the dispute" (Application of Iran, p. 12; emphasis added). The Court now responds 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" (Judgment, dispositif, para. 2; emphasis added).
25. The way in which the Court responds to the Iranian Application in this Judgment derives from a misconception. The Court was requested by Iran to adjudge at this stage that it has jurisdiction under the Treaty to entertain the dispute occasioned by the destruction of the platforms by the United States force, but not to entertain any claims made by Iran under any specific article -in this case Article X (1). In my view the conclusion reached by the Court is unjustified because the Court should not have interpreted each provision of Articles I, IV (1) and X (1) as providing a basis for the jurisdiction of the Court but should rather have determined that a dispute - if any such exists -between Iran and the United States arising from the attack on and destruction of the Iranian oil platforms falls within the purview of the 1955 Treaty of Amity.

26. Failure to dismiss Iran's Application in the present case invites a situation in which a State could, under the pretext of the violation of any trivial provision of any treaty containing a compromissory clause, unilaterally bring the other State party to the treaty before the Court on the sole ground that one of the parties contends that a dispute within the scope of the treaty exists while the other denies it. This would be no more than the application of a form of false logic far removed from the real context of such a treaty, and constituting nothing short of an abuse of treaty interpretation, so that "the Court might seem in danger of inviting a case 'through the back door"' (see my separate opinion in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1984, p. 472).