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World Court Digest

III. The International Court of Justice
3. THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE
3.5. Preliminary Objections

¤ 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. 809-810] By the terms of Article XXI, paragraph 2, of that Treaty:

"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."

16. It is not contested that several of the conditions laid down by this text have been met in the present case: a dispute has arisen between Iran and the United States; it has not been possible to adjust that dispute by diplomacy and the two States have not agreed "to settlement by some other pacific means" as contemplated by Article XXI. On the other hand, the Parties differ on the question whether the dispute between the two States with respect to the lawfulness of the actions carried out by the United States against the Iranian oil platforms is a dispute "as to the interpretation or application" of the Treaty of 1955. In order to answer that question, the Court cannot limit itself to noting that one of the Parties maintains that such a dispute exists, and the other denies it. It must ascertain whether the violations of the Treaty of 1955 pleaded by Iran do or do not fall within the provisions of the Treaty and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain, pursuant to Article XXI, paragraph 2.

[pp. 840-841 S.O. Shahabuddeen] It appears to me, however, that the Court has not paid sufficient regard to the fact that the question at this stage is not whether the Applicant's claims are sound in law, but whether the Applicant is entitled to an adjudication of its claims. The neglect to distinguish between these issues as consistently as was required corresponds with the fact that the Court has sought to make a definitive determination of the meaning of the 1955 Treaty, whereas, in my view, it should merely have asked whether the construction of the Treaty on which the Applicant relied was an arguable one, even if it might eventually turn out to be incorrect. The respect impression with which I thus leave the case is that the test which Court has used has precluded it from asking the right questions. In result, the principle on which the Judgment is constructed is not adequate to do full justice to either Party; it creates unnecessary disadvantages for both.

[p. 846 S.O. Ranjeva] There must be a clear and definite break between the subject-matter of the preliminary objection under Article 79 of the Rules of Court and what is termed the basis of jurisdiction. The objection relates only to the jurisdiction of the Court or to admissibility, whereas what is designated as the basis of jurisdiction covers the arguments set forth in support of the claim. This being so, the interpretation of the "bases of jurisdiction" does not affect the rights of the parties if it is limited to meeting arguments on the sole ground of the plausibility of the theses contended in relation to the problems inherent in the terms of the provisions, whose violation is relied upon by the claimant. The reference to Article X of the Treaty in the second paragraph of the operative part of the Treaty therefore appears to merit criticism.

[pp. 855-857 I.O. Higgins] 31. Where the Court has to decide, on the basis of a treaty whose application and interpretation is contested, whether it has jurisdiction, that decision must be definitive. (It is uncertain whether cases where the merits fall to be determined by another tribunal may perhaps be an exception to this general provision - notwithstanding that the rationale, when closely examined, is debatable.) It does not suffice, in the making of this definitive decision, for the Court to decide that it has heard claims relating to the various articles that are "arguable questions" or that are "bona fide questions of interpretation" (each being suggestions advanced in this case). This is so notwithstanding that the Interhandel case (with its passing reference to a "provisional conclusion") and the Military and Paramilitary Activities in and against Nicaragua case do not fit easily into this approach. The treatment of the issue in the latter case contained so many remarkable elements and so many diverse views that it cannot be seen as a clear decision by the Court to move away from the approach so powerfully established in the Mavrommatis case. Nor, in my view, is the answer to be found in the establishment of a "reasonable connection" between the claims and the Treaty - that is a necessary but not sufficient condition.

32. There has been some suggestion that "plausibility" provides another test for determination of whether the Court has jurisdiction. It was said in the Ambatielos case that the Court must determine whether the arguments of the applicant State

"in respect of the treaty provisions on which the Ambatielos claim is said to be based, are of a sufficiently plausible character to warrant a conclusion that the claim is based on a Treaty" (I.C.J. Reports 1953, p. 18; emphasis added).

"Plausibility" was not the test to warrant a conclusion that the claim might be based on the Treaty. The only way in which, in the present case, it can be determined whether the claims of Iran are sufficiently plausibly based upon the 1955 Treaty is to accept pro tem the facts as alleged by Iran to be true and in that light to interpret Articles 1, IV and X for jurisdictional purposes - that is to say, to see if on the basis of Iran's claims of fact there could occur a violation of one or more of them.

33. In the Ambatielos case (1953), the Court rejected the United Kingdom claim that the Court should provisionally accept the facts as asserted by the applicant and see if they would constitute a violation of the Treaty said to provide the Court with jurisdiction. The Court did this for two reasons: first, to find that the facts would constitute a violation was to step into the merits; and second, the merits in this case had been reserved to a different body, the Commission of Arbitration established under the Protocol of 1886. This constraint does not operate in the present case. It is interesting to note that in the Mavrommatis case the Permanent Court said it was necessary, to establish its jurisdiction, to see if the Greek claims "would" involve a breach of the provisions of the article. This would seem to go too far. Only at the merits, after deployment of evidence, and possible defences, may "could" be converted to "would". The Court should thus see if, on the facts as alleged by Iran, the United States actions complained of might violate the Treaty articles.

34. Nothing in this approach puts at risk the obligation of the Court to keep separate the jurisdictional and merits phases (unless it had been decided that a preliminary objection did not possess an exclusively preliminary character under Article 29 (2) of the Rules of Procedure) and to protect the integrity of the proceedings on the merits. Of course any definitive decision that even on the facts as described by Iran no breach of a particular article could follow, does "affect the merits" in the sense that that matter no longer may go to the merits. That is inherent in the nature of the preliminary jurisdiction of the Court. What is for the merits - and which remains pristine and untouched by this approach to the jurisdictional issue - is to determine what exactly the facts are, whether as finally determined they do sustain a violation of, for example, Article X; and if so, whether there is a defence to that violation, lying in Article XX or elsewhere. In short, it is at the merits that one sees "whether there really has been a breach" (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 23).

35. It is clear from the jurisprudence of the Permanent Court and of the International Court that there is no rule that requires a restrictive interpretation of compromissory clauses. But equally, there is no evidence that the various exercises of jurisdiction by the two Courts really indicate a jurisdictional presumption in favour of the plaintiff. (I make no reference in these observations as to the jurisdictional standards applicable for establishing a competence sufficient for the ordering of provisional measures.) The Court has no judicial policy of being either liberal or strict in deciding the scope of compromissory clauses: they are judicial decisions like any other.

36. A final point on judicial methodology: in its Judgment the Court has accepted certain of the preliminary objections, and rejected others. This is not without precedent, as shown by the different treatment that was accorded in the Mavrommatis case to the preliminary objections as they related to the Jaffa and the Palestine Concessions. The Court may properly determine that it has jurisdiction in respect of certain claims but not in respect of others. (This approach to settling one's own jurisdiction is, incidentally, very familiar to human rights tribunals, which often are faced with claims of violations of a variety of treaty provisions, but decide that, for jurisdictional reasons, the applicant may only proceed to the merits in respect of one or more of them.) Selection of grounds of claim that may proceed to the merits is a proper exercise of the compétence de la compétence.